FOR THE WESTERN DISTRICT OF
MISSOURI, SOUTHERN DIVISION
KEVIN MCBRIDE,
Plaintiff,
v.
DEPUTY KIM CLARK,
et al.,
Defendants.
Case No.: 04-03307-CV-S-REL
2006 U.S. Dist. Lexis 9143
March 8, 2006, Decided
ORDER GRANTING DEFENDANT KIM
CLARK'S MOTION FOR SUMMARY JUDGMENT
Before the court is Defendant Kim Clark's motion for summary
judgment on the grounds that (1) her actions do not constitute excessive force,
but if they do she is entitled to qualified immunity, and that (2) she is
entitled to official immunity on Plaintiff's state law battery claim. I find
that (1) Defendant's use of a taser does not constitute excessive force and (2)
Defendant is entitled to official immunity in her individual capacity. Therefore,
Defendant's motion for summary judgment will be granted on these grounds.
I. BACKGROUND
On July 30, 2004, Plaintiff filed a two-count complaint against:
Defendant Christian County, Missouri, by and through its Board of County
Commissioners in their official capacities ("Christian County");
Defendant Joey Matlock, n1 Sheriff of Christian County, Missouri, in his
official capacity; Defendant Deputy Kim Clark, personally and in her official
capacity; and other unknown deputy sheriffs acting as jailers. Count I of the
complaint alleges that he was subjected to excessive force when Defendant
deployed a taser on his neck while he was restrained in a restraint chair.
Count II is a state law battery claim for such use of the taser.
On December 16, 2005, Defendant filed a motion for summary
judgment and suggestions in support (Doc. # # 38, 39). Plaintiff filed a
response in opposition on January 18, 2006 (Doc. # 44). On January 31, 2006,
Defendant filed a reply to Plaintiff's response (Doc. # 52). On February 27,
2006, Plaintiff filed a sur-reply solely to respond to the new averments
contained in Defendant's reply (Doc. # 71).
II. STANDARD FOR SUMMARY
JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure permits
summary judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."
The key to determining whether summary judgment is proper is
ascertaining whether a genuine issue of material fact exists. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). A genuine issue of material fact exists if: (1) there is a dispute of
fact; (2) the disputed fact is material to the outcome of the case; and (3) the
dispute is genuine, that is, a
reasonable jury could return a verdict for either party. American Academy of
Family Physicians v. United States, 1995 U.S. Dist. Lexis 4820, 75 A.F.T.R.2d
(RIA) 1709 (W.D. Mo. 1995), aff'd 91 F.3d 1155 (8th Cir. 1996). The party
moving for summary judgment has the burden of proving that these requirements
for summary judgment have been met. Adickes v. S.H. Kress & Co., 398 U.S.
144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
In a summary judgment analysis, a court must first consider
whether there are any issues of fact. If the only issues are issues of law,
then summary judgment is appropriate. Disesa v. St. Louis Cmty. Coll., 79 F.3d
92, 94 (8th Cir. 1996). If issues of fact are raised, a court must consider
whether these issues are material to the outcome of the case. Materiality is
identified by the substantive law that is to be applied. Anderson, 477 U.S. at
248. Factual disputes that are collateral to the substantive law will not
preclude summary judgment. Id.
In addition to the requirement that a dispute of fact be
material, the dispute must also be genuine. A dispute of fact is considered
genuine if the non-moving party has produced sufficient evidence such that a
reasonable jury could return a verdict for that party. Id. at 249. When
considering a motion for summary judgment, the evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in its favor. Id.
at 255. If the evidence submitted by the non-moving party is merely colorable
or is not significantly probative, then summary judgment may be granted. Id. at
249-50.
Where the party moving for summary judgment does not bear the
burden of proof at trial, that party must show "that there is an absence
of evidence to support the non-moving party's case." Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This
burden is met when the moving party identifies portions of the record
demonstrating an absence of a genuine issue of material fact. Id. at 323. If
the moving party meets the requirement, the burden shifts to the non-moving
party who must set forth specific facts showing that there is a genuine issue
for trial. Anderson, 477 U.S. at 248. The trial judge then determines whether a
trial is needed -- "whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party." Id. at 250.
III. UNCONTROVERTED FACTS
Below, typed in bold, are the facts offered by Defendant that I
find to be uncontroverted by the record before me.
1. Plaintiff was held at the Christian County Jail beginning on
or about June 18, 2003, through June 19, 2003 for suspicion of a drug-related
offense.
Plaintiff does not dispute this fact.
2. Plaintiff used methamphetamines every two days or so during
the two months leading up to the date of the detainment, June 18, 2003.
Plaintiff does not dispute this fact.
3. Plaintiff used methamphetamines on June 17, 2003, one day
prior to the beginning of his detainment in the Christian County Jail.
Plaintiff does not dispute this fact.
4. Kim Clark used a taser on plaintiff while he was incarcerated
in the Christian County Jail on June 19, 2003.
Plaintiff does not dispute this fact.
5. Defendant Kim Clark was employed with the Christian
CountySheriff's Department in June of 2003.
Plaintiff does not dispute this fact.
6. Defendant Kim Clark
received over 600 hours academy training prior to her employment with the
Christian County Sheriff's Department. n2
Plaintiff does not dispute this fact.
7. Defendant Kim Clark received training on the appropriate use
of tasers prior to June 18, 2003 during her employment with the Christian
County Sheriff's Department.
Plaintiff does not dispute this fact.
8. Defendant Kim Clark was certified in the use of tasers when
she used one on plaintiff.
Plaintiff does not dispute this fact.
9. Kim Clark received training on appropriate use of force,
prior to June 18, 200[3] n3, during her employment with the Christian County
Sheriff's Department.
Plaintiff does not dispute this fact.
10. Plaintiff was yelling and screaming when he was in the
Christian County Jail.
Plaintiff does not dispute this fact.
11. Plaintiff was yelling vulgarities and "F U's" in
the jail.
Plaintiff does not dispute this fact.
12. Plaintiff's yelling and screaming was disrupting and
upsetting other inmates in the jail, including plaintiff's girlfriend, Holly
Lockard.
Plaintiff does not dispute this fact.
13. Plaintiff was yelling and screaming back and forth with
another inmate in the jail, Holly Lockard.
Plaintiff does not dispute this fact.
14. Plaintiff's screaming was interfering with Kim Clark's
ability to perform her job duties.
Plaintiff does not dispute this fact.
15. Holly Lockard was also under the influence of narcotics
while she was in the jail.
Plaintiff does not dispute this fact.
16. Holly Lockard was screaming back and forth with plaintiff,
Kevin McBride.
Plaintiff does not dispute this fact.
17. Kim Clark called the nurse to do a medical assessment
on plaintiff.
Plaintiff does not dispute this fact.
18. Holly Lockard was in the restraint chair that the nurse
needed for plaintiff, so she was placed in the safety cell in order for the
restraint chair to be used for plaintiff.
Plaintiff does not dispute this fact.
19. Holly Lockard then
undressed and stood in front of the cell door naked.
Plaintiff does not dispute this fact.
20. Holly Lockard then placed her hands inside her genital area
and began to write on the walls in her menstrual blood.
Plaintiff does not dispute this fact.
21. Holly Lockard's conduct continued as plaintiff continued to
scream.
Plaintiff does not dispute this fact.
22. Holly Lockard's conduct presented significant control and
safety issues.
Plaintiff does not dispute this fact.
23. Plaintiff was placed in a safety suit during his detainment
in the jail.
Plaintiff does not dispute this fact.
24. Once plaintiff was in the safety suit, he was placed in the
safety cell which has padded doors and walls.
Plaintiff does not dispute this fact.
25. While plaintiff was in the safety cell, he bit at the straps
on his safety suit until he was successful in removing it.
Plaintiff does not dispute this fact.
26. Plaintiff's chewing on the straps which restrained him was
interpreted by Officer Clark as an escape attempt.
Plaintiff does not dispute this fact.
27. After plaintiff removed his suicide suit, he was naked.
Plaintiff does not dispute this fact.
28. Plaintiff had to be instructed to place the suit on again.
Plaintiff does not dispute this fact.
29. When the nurse arrived, he asked Kim Clark to place
plaintiff in the restraint chair so that he could evaluate plaintiff medically.
Plaintiff does not dispute this fact.
30. The Nurse administered an IV to plaintiff for medical
treatment, which he was trying to pop out of his hand.
Plaintiff does not dispute this fact.
31. Prior to use of the taser by Kim Clark, plaintiff had
applied pressure on the straps of the restraint chair and popped out his IV.
Plaintiff does not dispute this fact.
32. Popping out his IV caused plaintiff to bleed on the
restraint chair.
Plaintiff does not dispute this fact.
33. Plaintiff informed Officer Clark, prior to the taser being
applied to him, that he had Hepatitis C.
Plaintiff does not dispute this fact.
34. Plaintiff refused Kim Clark's verbal orders to cease
screaming and yelling and to cease attempting to pop out his IV.
Plaintiff does not dispute this fact.
35. Plaintiff's expert agrees that it is proper to use a taser
to gain inmate compliance with a command.
Plaintiff does not dispute this fact.
36. Plaintiff's expert, Bucky Smith, agrees that conduct which
aggravates other inmates needs to be brought under control.
Plaintiff does not dispute this fact.
37. Kim Clark deployed the taser for plaintiff's safety, officer
safety due to fear of the spread of plaintiff's communicable disease(s), and to
maintain control of the jail population and gain plaintiff's compliance with
verbal commands.
Plaintiff does not dispute this fact.
38. The taser only left small read marks on plaintiff's neck and
did not cause bleeding.
Plaintiff does not dispute this fact.
IV. ADDITIONAL UNCONTROVERTED FACTS
In his response, Plaintiff offered additional uncontroverted
facts. Below, the facts typed in bold are those that I find to be undisputed
based on the admissible evidence before me.
1. Plaintiff was held at the Christian County Jail beginning on
or about June 18, 2003, through June 19, 2003, on a warrant, and was held in
the Christian County Jail as a pretrial detainee for the Taney County Sheriff's
Department.
Defendant does not dispute this fact.
2. Plaintiff was strapped into a restraint chair while
incarcerated in the Christian County
Jail.
Defendant does not dispute this fact.
Defendant further avers that plaintiff was placed in the
restraint chair due to his erratic, violent, and suicidal behavior.
Plaintiff disputes this fact.
In support of this fact, Defendant cites the Christian County
Sheriff's Department Jail Incident Report complete by Deputy Clark
("Incident Report"). The relevant portion of the report
describing Plaintiff's behavior after he was placed in the restraint chair is
as follows:
At approximately 2350 hrs.,
Cpl. Kembel placed Inmate McBride into the shower room to shower before
housing him. Inmate McBride began to yell, stating, "I'm not going
to shower. I'm cold." Inmate McBride stated that he would not shower until
he received a towel. Cpl. Kembel and I explained to Inmate McBride that he
would receive a towel after he had completed his shower. Inmate McBride then
started yelling "you nigger lover; cocksuckers. I'm going to yell until I
get my towel, you pig bastards." Inmate McBride then banged his head on
the shower door. When Inmate McBride was instructed to shower again, he said
that he was going to "kill myself" while in the shower. Inmate
McBride said that he was going to bang his head on the wall until he got what
he wanted. We then talked Inmate McBride into showering.
After the shower, Inmate
McBride began to yell again. He made statements such as, "Fuck you all, you
fat bastards. I'm going to yell until I get a towel." Cpl Kembel gave
Inmate McBride a towel and then attempted to give Inmate McBride a safety suit.
Inmate McBride threw it back and stated that he wasn't going to wear "that
shit". Cpl. Kembel stated that Inmate McBride could refuse the suit, but
Inmate McBride would be naked if he did. Inmate McBride then began to cry.
Inmate McBride said that he "didn't want to be a problem" and put the
suit on. Inmate McBride was then escorted to cell 71. When Inmate McBride
reached the door to cell 71, he stiffened and refused to enter the cell. Inmate
McBride stated that he wasn't going to go into that cell. Inmate McBride
commented that he wanted a cell with a bed and a blanket. Inmate McBride turned
to face Cpl. Kembel and I. Inmate McBride clenched his fist, tipped his head
down, squinted his eyes, and began to take short shallow breaths which in my
experience is the demeanor a person takes when getting ready to fight someone.
Cpl. Kembel and I both placed the palm of our right hands on Inmate McBride's
chest and gave him a push which made Inmate McBride take three steps backward
into the cell. Inmate McBride did not fall as a result of the push and was
still standing. Inmate McBride was approx. 4' into cell 71 which allowed us to
close the door safely.
Once in cell 71, Inmate
McBride began yelling and banging his head on the walls. Inmate McBride would
yell, "you nigger loving bastards. You cocksuckers. You pig, bastards. You
wait 'til I see you on the streets someday. You can't do this. I'm going to
call my lawyer and sue you." Inmate McBride would then begin to cry and
say, "Help me. Somebody help me. I just want help. I don't want to be
here. I don't want to be like this.". [sic] During this time, Inmate
McBride took the safety suit off and stood naked at the door to cell 71. Inmate
McBride then contacted Control via the Intercom system, however Control had
silenced the intercom due to the constant calling from Inmate Lockard, who had
been in cell 71 approximately 10 minutes prior to Inmate McBride. I heard
Inmate McBride state that Cpl. Kembel and I were trying to kill him. Inmate
McBride also repeated the comments that he had made at booking that had [sic]
been kidnapped [sic] and held captive in a cave in Arkansas for the last month.
Then Inmate McBride stated that he and his girlfriend were together using drugs
1 week ago. Inmate McBride told us that he had not been feed [sic] for the last
week, but he had used meth 4 days ago. Inmate McBride stated that people were
trying to get him and that we were trying to help those people. Cpl Kembel
asked Inmate McBride what people were trying to hurt him. Cpl Kembel also asked
who had kidnapped [sic] him. Inmate McBride stated, "It's better if I
don't say. They can get me in prison too." At this time Cpl. Kembel
instructed me to contact Nurse Honeycutt for an evaluation of Inmate McBride.
At approximately 2359, I contacted Nurse Honeycutt via his home phone and told
him about Inmate McBride's comments and mood swings. Nurse Honeycutt stated
that he would come to the detention center to evaluate Inmate McBride's mental
state as soon as he could.
While waiting for Nurse
Honeycutt's arrival, Inmate McBride continued to scream that he was going to
bang his head on the walls and doors until we gave him a bed. Inmate McBride would yell, "you pig
bastards are going to be sorry. I'm not going to stop until you give me what I
want. You cunt. You fat bastards. You cocksucking fat bastards." Inmate
McBride was still not wearing the safety suit and [was] naked. Inmate McBride
was pacing about the cell. During the pacing, Inmate McBride stopped twice and
banged his head against the padded wall of the cell. Inmate McBride would then
stand in front of the window in the cell door and say to us, "Do you like
seeing my dick you cocksucking cunt? Why don't you come suck it, you fat
bastards?" Inmate McBride would thrust his hips at us as he said this
causing his penis to bounce on his body. Inmate McBride did this 4-5 times. I found
this to be very offensive and sexually harassing. On the 5th time, Cpl Kembel
and I opened the door to cell 71 and instructed Inmate McBride to place the
safety suit back on as we did not want to see his penis out flopping around.
Inmate McBride went to the back of the cell and put the suit on. While placing
the suit back on, Inmate McBride began to cry and said, "why are you guys
being so mean to me? Why do you want to hurt me? I'm trying to be good. Can't
you see, I've done everything to be good? You just want to kill me." Cpl
Kembel and I told Inmate McBride that we were not there to cause him harm. We
explained to him that we were there to make sure he was safe and that he didn't
try to harm himself. At that time I noticed Inmate McBride had a small cut to
the left temple of his forehead. The cut appeared to be fresh as the blood was
not coagulated and it had not been there at the time of booking. Inmate McBride
placed the safety suit completely on and stood at the back of the cell. Once
the safety suit was back on, Cpl Kembel and I shut the door and walked away.
After Cpl Kembel and I
walked away, Inmate McBride began yelling, "you nigger loving bastards.
You cocksuckers. You pig bastards. Do you hear me you pig bastards. [sic] I'm
going to keep yelling and you can't do anything to stop me. I'm going to hit my
head 'til I get what I want." Inmate McBride would do this while standing
at the cell door. Cpl Kembel and I went to cell 71, but did not open the door.
I had the Taser at that time, due to being short-handed on our crew and Inmate
McBride's unstable state, I was concerned that harm may come to Cpl Kembel or
myself. Cpl Kembel and I told Inmate McBride to sit down and relax. We
explained to Inmate McBride that until the nurse cleared him to go to a cell, he
was going to have to stay where he was. We told him that the nurse was on the
way and would be here shortly. Inmate McBride refused to comply by continuing
to yell "you nigger loving bastards. You cocksuckers. You pig bastards.
What are you going to do?". After approximately 2-3 min. of attempting to
reason with Inmate McBride, I instructed Control to open cell 71. When the door
opened, Inmate McBride began to move to the back of the cell, then stopped and
turned back toward the cell door to fact Cpl Kembel and myself. Inmate McBride
began to cry again and say that we were going to kill him. I told Inmate
McBride to move to the back of the cell and sit down. Inmate McBride against
began to move to the back of the cell, then stopped and faced Cpl Kembel and I
again. Inmate McBride began to yell, "I don't care what you say. Just
shoot me. I don't care." I again instructed Inmate McBride to sit down.
Inmate McBride then clenched his fist and stated through clenched teeth
"no, shoot me bitch". Inmate McBride then took a step toward Cpl
Kembel and me. At that time, I deployed the Taser in an attempt to get Inmate
McBride to comply to our instructions for his safety and ours. Only 1 prong
made contact in the area of Inmate McBride's left thigh and did not penetrate
the skin. The 2nd prong deflected off of the safety suit.
. . .
At approximately 0115 hrs.,
Nurse Honeycutt arrived and noticed Inmate McBride yelling. Nurse Honeycutt
went immediately to cell 71. Nurse Honeycutt stated Inmate McBride was seated
in the back of the cell banging his elbows and head against the wall. Inmate
McBride noticed the nurse at the door and began to walk around the cell again.
Nurse Honeycutt stated that he was unable to check Inmate McBride's vitals
properly while in cell 71 due to Inmate McBride's increasing state of
agitation. Nurse Honeycutt requested that we place Inmate McBride in the
restraint chair in order to decrease his mobility and in an effort to calm
Inmate McBride down. We first had to remove Inmate Lockard from the restraint
chair, who was having withdrawals from PCP, meth, and cocaine. We removed
Inmate Lockard from the restraint chair. Cpl Kembel brought the restraint chair
to cell 71. I then radioed Control to open cell 71. Cpl Kembel instructed
Inmate McBride to exit the cell and sit in the chair. Inmate Lockard was then
rehoused in cell 71. Inmate McBride complied and began to ask, "Are you
going to help me? I will do anything you want. I want to be off this stuff. I
want to be clean." Cpl Kembel and I placed the wrist, waist, chest, and
leg restraints on Inmate McBride. Inmate McBride continued to ask, "are
you going to help me? I will do anything. I want to be off this stuff. I want
to be clean. Thank you for helping me." Inmate McBride was then wheeled
over by cell 49. Nurse Honeycutt then began to do a medical evaluation of
Inmate McBride.
While attempting to get the
blood pressure cuff on Inmate McBride's left arm for the medical evaluation,
Inmate McBride turned his head to the left attempting to bite the nurse. Inmate
McBride also began to bite on the left chest strap of the restraint chair.
Inmate McBride then began to try to spit on the nurse. Nurse Honeycutt told
Inmate McBride to turn his head to the right and away from Nurse Honeycutt.
Inmate McBride did not move his head or say anything. I then took my left hand
and placed it on the left side of Inmate Honeycutt's [sic] face. I applied the
amount of pressure needed to turn Inmate McBride's head to the right to allow
the nurse to safely complete his evaluation.
Nurse Honeycutt stated that
Inmate McBride was under the influence of a narcotic. I believed the nurse to
be correct due to Inmate McBride's previous statements, Inmate McBride's
inability to not fidget for any period of time, and his severe mood swings.
Nurse Honeycutt instructed Inmate McBride that he was going to start an IV to
assist in reversing the affects [sic] of the drug. Inmate McBride was told that
he would need to remain as still as possible during the placement of the IV
needle. Nurse Honeycutt was telling Inmate McBride this while gathering the
supplies he needed to administer the IV. At that time, Inmate McBride began to
yell, saying "you're going to poison me. You don't know what you are
doing." Inmate McBride accused Nurse Honeycutt, Cpl Kembel, and I of
trying to force him to take more meth. Inmate McBride stated that he knew we
were trying to help the people who had kidnapped [sic] him and taken him to
Arkansas. Inmate McBride continued to yell, "I'm not going to let you put
that poison in me anymore. You can't make me take it." Inmate McBride
stated that he wasn't going to allow the nurse to administer any medical
treatment should he need it. Inmate McBride stated that he was a trained
pharmacist and knew that the Nurse was not going to giving [sic] him the right
treatment.
Nurse Honeycutt then walked
over to Inmate McBride and begin [sic] inserting the IV needle. Inmate McBride
then began to spit at Nurse Honeycutt and Cpl Kembel. Inmate McBride attempted
to bite Nurse Honeycutt in an attempt to get Nurse Honeycutt to stop. Inmate
McBride started to bite on the left chest strap again. As the nurse got the IV
needle into the vein in Inmate McBride's left hand, Inmate McBride attempted to
pull his hand away by drawing his hand back toward his body placing pressure on
the wrist restraints causing them to loosen. Cpl Kembel and I held Inmate
McBride's left arm down against the arm of the restraint chair in an effort to
assist the nurse with inserting the IV needle into a vein by keeping inmate
McBride's hand still. Nurse Honeycutt was able to obtain a vein for IV use. As
Nurse Honeycutt started to retrieve his medical tape, Inmate McBride again
pulled his left arm toward his body in a short, fast motion, causing the IV
needle to dislodge from Inmate McBride's vein. In doing this, Inmate McBride
caused his hand to bleed, sending blood onto the left arm and side of the
restraint chair.
Nurse Honeycutt told Inmate
McBride that he would have to access the vein again. Nurse Honeycutt got
another IV needle and once again made access to the vein in Inmate McBride's
left hand. Inmate McBride was saying "I want your help. I will do anything
you say just to be clean. I'll be good. Thank you for helping me."
One the IV was started,
Inmate McBride began to place pressure on the wrist restraint by pulling his
hand back toward his body. This would cause the IV to reverse its flow. This
allowed blood to wash into the IV line. Inmate McBride had told me during the
medical questioning that he had been exposed to hepatitis, although he was
unsure which one, but hadn't been exposed to HIV. Inmate McBride told the Nurse
while attempting to pull his left hand out of the restraint that he had other
people load his syringes and he was not sure if the syringes had been used by
other people or not. Inmate McBride continued to say that he did not want to be
poisoned or be given meth. Inmate McBride continued to state that he knew we
were trying to poison him. Inmate McBride also continued to yell, "you
nigger loving bastards. You cocksuckers. You pig, bastards. You just want to
kill me." Inmate McBride continued to try to pull both arms out of the
wrist restraints. Inmate McBride would also rock the restraint chair from side
to side in attempt to roll it over on its side. This act was unsafe for Inmate
McBride and placing [sic] himself in danger of injury.
I again became concerned for
Cpl Kembel, Nurse Honeycutt and my safety and the possibility of being exposed
to a contagious disease so soon after an exposure to Hep C in April that I then
retrieved the Taser. I placed the Taser against Inmate McBride's neck in
attempt to get him to comply with not endangering himself by rolling the
restraint chair onto its side and endangering us by pulling free from the restraints
or causing the needle to become dislodged. Inmate McBride continued to struggle
against the restraints in an attempt to get free from them, and rocking the
chair from side to side. Inmate McBride continued to try to spit at and bite
us. Inmate McBride never stopped yelling his ongoing accusations that we were
trying to kill him, and that we were aiding the individuals that kidnapped
[sic] him, or that we were "cocksucker [sic]; fat bastards, or nigger
loving bastards." At approx. 0228 hrs., I engaged the Taser.
Plaintiff disputes this fact, denying that he was shocked with
the taser due to his erratic, violent, or suicidal behavior, but admitting he
was tasered on the neck while strapped in a restraint chair, unable to move.
Plaintiff cites page 52, line 11 through page 57, line 5, of David Honeycutt's
deposition:
A: I kept watching him right
there real close. We had the IV in him. I was over at my counter, and when I
turned around -- well, my counter was something like this, and he was -- he was
more like about where that wall is, right there, to that area where I'm at. And
all of a sudden, I heard something sizzling like bacon. They call it like
bacon. As a matter of fact, I said that.
And I turned my head, and Ms. Clark was tasering him in the
neck, and she tasered him five or ten seconds. I don't know. I mean, I can't
remember it, but it was a little bit of time. Enough time for me to hear it,
turn my head and look, and still see the Taser connected to his neck.
Q: Okay.
A. In the neck area, you
know. So that was -- you know if it had just been real quick, I wouldn't have
heard it and I wouldn't have been able to turn and see it, but I actually saw
it for a few seconds.
Q: All right. Did you hear a
ruckus or did you hear anything immediately prior to that?
A: I didn't hear anything
more than what had been going on for hours. Nothing different than what had
been going on for some time.
Q: All right. And when you
turned to look, was Mr. McBride still in the restraint chair?
A: Yes. He was strapped in.
Q: Were his hands were --
I'm sorry. Were his wrists strapped down?
A: Yes.
Q: Were his shoulders
strapped down?
A: Yes.
Q: Was he free to move around?
A: No.
Q: Okay. Did you hear
Deputy Clark say anything to Mr. McBride immediately prior
to hearing the sizzling sounds?
A: Well, Ms. Clark
had been up at the -- there's a computer and a couple steps up, and she
had been sitting there kind of watching. She'd come and go down there to him
and up and back and forth, and she had been sitting up there. And he had been
just yelling and screaming and cussing, and so had Ms. Lockard. And Ms. Clark had been yelling and screaming back at
them, telling them to shut up, and she was just really -- she was really at
that point worse than I had seen her in a while. She was really upset. She was
to the point where she was just yelling back at him nonstop, making him shut
up, because they -- you know, I was like okay, you know. They had been doing
this for some time, and I can see how this would get on someone's nerves. And a
layperson, they would probably think, "Oh, my God. I can't handle
this." But someone working in a jail, it's just, "So what," you
know, because this happens.
So she had been engaging in some pretty high-level verbal
conversation with him for a while, both of them.
Q: Okay. Let's talk about
the verbal conversations between she and Mr. McBride, right now. Did she -- you
said that they were yelling things back and forth. Did she at any point
threaten to use the Taser on him, on Mr.
McBride?
A: Yeah. She showed it to
him, too. And he told her to go ahead and do it. He said, "Go ahead and do
it. Shoot me, kill me, do whatever you want to do." Yeah. She showed it to
him.
Q: Do you recall any
particular phrases or words that Deputy
Clark used?
A: She kept telling him if
he didn't shut up, she was going to bring it over and use it, use this on him.
Now, I'm not sure if she used the word "Taser" or not.
Q: Okay. Did you say
anything to her about the use of the Taser?
A: No. It wasn't my
responsibility. It wasn't my position to. I mean, I -- no. I had nothing to do
with that. I don't even know how to use it.
Q: Did it appear to you that
the use of the Taser was for punishment?
Mr. Harpool: Objection. Calls for speculation.
Q: Go ahead and answer,
subject to the objection.
A: Okay. It appeared to me
the use of the Taser was to keep him quiet. And that's the best answer I can
give you.
David Honeycutt's testimony
describes the context in which Plaintiff was tasered. Because such testimony
does not address why Plaintiff was placed in the restraint chair, the specific
fact advanced in Defendant's averment, I find this fact to be uncontroverted.
3. While Plaintiff was strapped in the restraint chair inside
the confines of the Christian County Jail, Defendant Kim Clark held a taser to
the neck of Plaintiff, shocking Plaintiff.
Defendant does not dispute this fact.
Defendant further avers
that plaintiff was tasered in an effort to control him and restore order, based
on his continued erratic, violent, and suicidal behavior.
Plaintiff disputes this fact.
In support of this fact, Defendant cites the Incident Report, as
set forth above in Additional Uncontroverted Fact No. 2.
In response, Plaintiff
denies that he was shocked with the taser due to his erratic, violent, or
suicidal behavior, but admits he was tasered on the neck while strapped in a
restraint chair, unable to move. Plaintiff cites page 52, line 11 through page
57, line 5, of David Honeycutt's deposition:
A: I kept watching him right
there real close. We had the IV in him. I was over at my counter, and when I
turned around -- well, my counter was something like this, and he was -- he was
more like about where that wall is, right there, to that area where I'm at. And
all of a sudden, I heard something sizzling like bacon. They call it like
bacon. As a matter of fact, I said that.
And I turned my head, and Ms. Clark was tasering him in the
neck, and she tasered him five or ten seconds. I don't know. I mean, I can't
remember it, but it was a little bit of time. Enough time for me to hear it,
turn my head and look, and still see the Taser connected to his neck.
Q: Okay.
A. In the neck area, you
know. So that was -- you know if it had just been real quick, I wouldn't have
heard it and I wouldn't have been able to turn and see it, but I actually saw
it for a few seconds.
Q: All right. Did you hear a
ruckus or did you hear anything immediately prior to that?
A: I didn't hear anything
more than what had been going on for hours. Nothing different than what had
been going on for some time.
Q: All right. And when you
turned to look, was Mr. McBride still in the restraint chair?
A: Yes. He was strapped in.
Q: Were his hands were --
I'm sorry. Were his wrists strapped down?
A: Yes.
Q: Were his shoulders
strapped down?
A: Yes.
Q: Was he free to move
around?
A: No.
Q: Okay. Did you hear
Deputy Clark say anything to Mr.
McBride immediately prior to
hearing the sizzling sounds?
A: Well, Ms. Clark
had been up at the -- there's a computer and a couple steps up, and she
had been sitting there kind of watching. She'd come and go down there to him
and up and back and forth, and she had been sitting up there. And he had been
just yelling and screaming and cussing, and so had Ms. Lockard. And Ms. Clark
had been yelling and screaming back at them, telling them to shut up, and she
was just really -- she was really at that point worse than I had seen her in a
while. She was really upset. She was to the point where she was just yelling
back at him nonstop, making him shut up, because they -- you know, I was like
okay, you know. They had been doing this for some time, and I can see how this
would get on someone's nerves. And a layperson, they would probably think,
"Oh, my God. I can't handle this." But someone working in a jail,
it's just, "So what," you know, because this happens.
So she had been engaging in some pretty high-level verbal
conversation with him for a while, both of them.
Q: Okay. Let's talk about
the verbal conversations between she and Mr. McBride, right now. Did she -- you
said that they were yelling things back and forth. Did she at any point
threaten to use the Taser on him, on Mr.
McBride?
A: Yeah. She showed it to
him, too. And he told her to go ahead and do it. He said, "Go ahead and do
it. Shoot me, kill me, do whatever you want to do." Yeah. She showed it to
him.
Q: Do you recall any
particular phrases or words that Deputy
Clark used?
A: She kept telling him if
he didn't shut up, she was going to bring it over and use it, use this on him.
Now, I'm not sure if she used the word "Taser" or not.
Q: Okay. Did you say
anything to her about the use of the Taser?
A: No. It wasn't my
responsibility. It wasn't my position to. I mean, I -- no. I had nothing to do
with that. I don't even know how to use it.
. . .
Q: Did it appear to you that
the use of the Taser was for punishment?
Mr. Harpool: Objection. Calls for speculation.
Q: Go ahead and answer,
subject to the objection.
A: Okay. It appeared to me
the use of the Taser was to keep him quiet. And that's the best answer I can
give you.
The testimony Plaintiff uses to controvert the additional
averment describes the same series of events contained in Defendant's evidence.
Specifically, both accounts describe Plaintiff's erratic, loud and disruptive
behavior. The testimony offered by Plaintiff does not contain any evidence to
controvert that he was violent and/or suicidal. I, therefore, find that this
fact is uncontroverted.
4. Defendant Kim Clark
was employed by the Christian County Sheriff's Department, and was working in
her capacity as such an employee at the time she tasered Plaintiff.
Defendant does not dispute this fact.
5. Defendant Kim Clark received training from the Christian
County Sheriff's Department, from Christian County employee Lt. Robert Shawley,
and thereby became certified in the use of tasers prior to tasering Plaintiff.
Defendant does not dispute this fact.
6. Plaintiff's loud behavior, in addition to her other job
duties, were creating stress for Defendant Kim Clark.
Defendant does not dispute this fact.
7. Defendant Kim Clark ordered Plaintiff to "shut up"
several times, but Plaintiff continued to be loud, immediately prior to
Defendant Kim Clark tasering Plaintiff on his neck.
Defendant does not dispute the fact that David Honeycutt
testified as such.
8. Defendant Kim Clark tasered Plaintiff in an attempt to keep
him quiet.
Defendant does not dispute the fact that Kim Clark tasered
plaintiff, and that plaintiff's loud behavior was interfering with her ability
to perform her routine job functions.
Defendant specifically avers that Kim Clark's actions were intended to gain control of a violent
and suicidal inmate.
In support of this statement, Defendant cites page 51, line 11
through page 52, line 6, of Kim
Clark's deposition testimony:
Q: All right. What's the
next thing that you remember happening with Kevin McBride?
A: He and Ms. Lockard began
screaming and yelling back and forth again. I asked them to quiet down, I
couldn't hear the people that I was booking in, their answers, and he was
disrupting the other inmates that were trying to sleep. He started rocking the
chair back and forth and again trying to pop the I.V. out. I told him to stop.
He continued. I walked over with the TASER, placed it against the left side of
his neck and engaged it.
Q: Okay. So at that point
Mr. McBride and Holly Lockard were screaming and yelling at one another --
A: Yes.
Q: -- is that correct? And
it was interfering with your job duties?
A: Yes.
Q: Okay. And so to gain
control of the situation and to, I guess, regain control of the situation, you
used the TASER?
A: Yes.
She also cites the Incident Report, as described above in
Additional Uncontroverted Fact No. 2.
In response, Plaintiff denies that he was shocked with the taser
due to his erratic, violent, or suicidal behavior, but admits he was tasered on
the neck while strapped in a restraint chair, unable to move. He cites page 52,
line 11 through page 57, line 5 of David Honeycutt's deposition testimony:
A: I kept watching him right
there real close. We had the IV in him. I was over at my counter, and when I
turned around -- well, my counter was something like this, and he was -- he was
more like about where that wall is, right there, to that area where I'm at. And
all of a sudden, I heard something sizzling like bacon. They call it like
bacon. As a matter of fact, I said that.
And I turned my head, and Ms. Clark was tasering him in the
neck, and she tasered him five or ten seconds. I don't know. I mean, I can't
remember it, but it was a little bit of time. Enough time for me to hear it,
turn my head and look, and still see the Taser connected to his neck.
Q: Okay.
A. In the neck area, you
know. So that was -- you know if it had just been real quick, I wouldn't have
heard it and I wouldn't have been able to turn and see it, but I actually saw
it for a few seconds.
Q: All right. Did you hear a
ruckus or did you hear anything immediately prior to that?
A: I didn't hear anything
more than what had been going on for hours. Nothing different than what had
been going on for some time.
Q: All right. And when you
turned to look, was Mr. McBride still in the restraint chair?
A: Yes. He was strapped in.
Q: Were his hands were -- I'm sorry. Were his wrists strapped
down?
A: Yes.
Q: Were his shoulders
strapped down?
A: Yes.
Q: Was he free to move
around?
A: No.
Q: Okay. Did you hear
Deputy Clark say anything to Mr.
McBride immediately prior to
hearing the sizzling sounds?
A: Well, Ms. Clark
had been up at the -- there's a computer and a couple steps up, and she
had been sitting there kind of watching. She'd come and go down there to him
and up and back and forth, and she had been sitting up there. And he had been
just yelling and screaming and cussing, and so had Ms. Lockard. And Ms. Clark
had been yelling and screaming back at them, telling them to shut up, and she
was just really -- she was really at that point worse than I had seen her in a
while. She was really upset. She was to the point where she was just yelling
back at him nonstop, making him shut up, because they -- you know, I was like
okay, you know. They had been doing this for some time, and I can see how this
would get on someone's nerves. And a layperson, they would probably think,
"Oh, my God. I can't handle this." But someone working in a jail,
it's just, "So what," you know, because this happens.
So she had been engaging in some pretty high-level verbal
conversation with him for a while, both of them.
Q: Okay. Let's talk about
the verbal conversations between she and Mr. McBride, right now. Did she -- you
said that they were yelling things back and forth. Did she at any point
threaten to use the Taser on him, on Mr.
McBride?
A: Yeah. She showed it to
him, too. And he told her to go ahead and do it. He said, "Go ahead and do
it. Shoot me, kill me, do whatever you want to do." Yeah. She showed it to
him.
Q: Do you recall any
particular phrases or words that Deputy
Clark used?
A: She kept telling him if
he didn't shut up, she was going to bring it over and use it, use this on him. Now,
I'm not sure if she used the word "Taser" or not.
Q: Okay. Did you say
anything to her about the use of the Taser?
A: No. It wasn't my responsibility. It wasn't my
position to. I mean, I -- no. I had nothing to do with that. I don't even know
how to use it.
. . .
Q: Did it appear to you that
the use of the Taser was for punishment?
Mr. Harpool: Objection. Calls for speculation.
Q: Go ahead and answer,
subject to the objection.
A: Okay. It appeared to me
the use of the Taser was to keep him quiet. And that's the best answer I can
give you.
The testimony Plaintiff uses
to controvert the additional averment describes the same series of events
contained in Defendant's evidence. Specifically, both accounts describe
Plaintiff's erratic, loud and disruptive behavior. The testimony offered by
Plaintiff does not contain any evidence to controvert that he was violent
and/or suicidal. I, therefore, find that this fact is uncontroverted.
9. Defendant Kim Clark manually held a taser against the neck of
Plaintiff while he was strapped in a restraint chair, and while Plaintiff was
incapable of protecting himself.
Defendant does not dispute this fact.
Defendant further avers that Kim Clark deployed the taser in
conformity with her training and certification, and under circumstances in
which use of that device was justified.
Plaintiff denies the taser was deployed in conformity with
Defendant's training, but admits Plaintiff was tasered on the neck while
strapped in a restraint chair, unable to move.
In support of this fact, Defendant cites page 68, line 6 through
page 73, line 6 of Kim Clark's deposition testimony:
Q: Okay. Who trained -- who
trained you with respect to the use of the TASER?
A: Lieutenant Shawley.
Q: When did you receive your
training?
A: February '03.
Q: What was the -- excuse
me. What was the length of time of the training? In other words, was it 45
minutes, two hours, three hours, two days?
A: I don't recall how long
it was.
Q: Do you remember if it was
one day or less?
A: No, I don't.
Q: How many people were
trained along with you?
A: The same time I was or a
different class included?
Q: The same time you were.
A: I don't remember exactly.
Q: Okay. Do you know where
Lieutenant Shawley got his training?
A: No.
Q: Do you know when
Lieutenant Shawley became certified to use a TASER?
A: No.
Q: Do you know who certified
Lieutenant Shawley to use a TASER?
A: No.
Q: How long has Lieutenant
Shawley been with the Christian County Sheriff's Department?
A: I don't know.
Q: Do you recall where you
received your training from Lieutenant Shawley?
A: Christian County.
Q: Okay. Was it -- did you
receive your training in the jail?
A: No.
Q: Okay. Where were you?
A: The main department.
Q: Explain to me what you
mean by the main department.
A: The jail's separate from
the offices of the department.
Q: Okay. And where are the
offices of the department?
A: On the north side of the
building.
Q: Okay. And is that like a
classroom setting?
A. Yes.
Q: Okay. Do you recall when
you were going through the training, were there other people going through the
training besides you?
A: Yes.
Q: Okay. Was he teaching
more or less than three people?
A: More.
Q: Okay. More or less than
ten people?
A: Less than ten.
Q: Okay. And did you receive
your training during your normal shift?
A: No.
Q: Okay. So you had to come
I specially for this training?
A: Yes.
Q: Okay. Did you get paid
for that training?
A: No.
Q: Okay. All right. And you don't have any recollection as to
the length or whether it was one day or two days or one week?
A: No.
Q: Okay. Did Lieutenant
Shawley have anyone from TASER company come and help you train at all?
A: No.
Q: So it was just Lieutenant
Shawley that was training you?
A: Yes.
Q: Okay. No one else was
helping with the course?
A: No.
Q: Okay. What do you recall
with respect to the training?
A: We had to pass a written
test.
Q: Okay.
A: We had to be able to
deploy it on a target properly.
Q: And when you say
"deploy it on a target," are we talking about being able to hit a
target?
A: Yes.
Q: Okay.
A: We had to be able to
change out the batteries properly, test fire it for malfunctions, and receive a
TASER shock ourselves.
Q: Okay. With respect to the
training, if you are unable to hit the target, do you not pass or are you not
certified?
A: I don't know.
Q: Okay. How far away were
you standing from the target?
A: Approximately eight to
ten feet.
Q: And I assume you hit the
target when you did your training?
A: Yes.
Q: How many times did you --
were you asked to try and hit the target?
A: Once.
Q: Okay. All right. And did
you receive any training with respect to where to aim --
A: Yes.
Q: -- at the target? Where
were you told to aim?
A: Main body mass.
Q: And when you say
"main body mass," you're talking about the upper center chest area?
A: Yes.
Q: Okay. All right. What is
it called when you shoot a TASER at someone?
A: Deployment.
Q: Okay. What is it called
when you use the TASER as a stun gun and physically put the TASER on someone?
A: It can either be called a
deployment or a stun drive.
Q: Okay. All right. So you
were trained, when you're using the TASER as a projectile, to aim for center
mass?
A: Yes.
Q: Okay. What were you
trained to do with respect to when you use a TASER in a stun drive?
A: Place it against the neck
where it meets the shoulders or the under part of the thigh.
Q: Where you given any
explanation why to use those specific areas of the body?
A: We were. It had to do
with the connection to the rest of the muscle groups.
Q: Was that supposed to be
more effective?
A: Yes.
Defendant also cites the
Christian County Sheriff's Department Jail Incident Report, as set forth in
support of Defendant's additional averment in Additional Uncontroverted Fact
No. 2 above.
Plaintiff disputes that the taser was deployed in conformity
with Defendant's training, but admits Plaintiff was tasered on the neck while
strapped in a restraint chair, unable to move. He cites page 52, line 11 though
page 57, line 5 of David Honeycutt's deposition:
A: I kept watching him right
there real close. We had the IV in him. I was over at my counter, and when I
turned around -- well, my counter was something like this, and he was -- he was
more like about where that wall is, right there, to that area where I'm at. And
all of a sudden, I heard something sizzling like bacon. They call it like
bacon. As a matter of fact, I said that.
And I turned my head, and Ms. Clark was tasering him in the
neck, and she tasered him five or ten seconds. I don't know. I mean, I can't
remember it, but it was a little bit of time. Enough time for me to hear it,
turn my head and look, and still see the Taser connected to his neck.
Q: Okay.
A. In the neck area, you
know. So that was -- you know if it had just been real quick, I wouldn't have
heard it and I wouldn't have been able to turn and see it, but I actually saw
it for a few seconds.
Q: All right. Did you hear a
ruckus or did you hear anything immediately prior to that?
A: I didn't hear anything
more than what had been going on for hours. Nothing different than what had
been going on for some time.
Q: All right. And when you
turned to look, was Mr. McBride still in the restraint chair?
A: Yes. He was strapped in.
Q: Were his hands were --
I'm sorry. Were his wrists strapped down?
A: Yes.
Q: Were his shoulders
strapped down?
A: Yes.
Q: Was he free to move
around?
A: No.
Q: Okay. Did you hear
Deputy Clark say anything to Mr.
McBride immediately prior to
hearing the sizzling sounds?
A: Well, Ms. Clark
had been up at the -- there's a computer and a couple steps up, and she
had been sitting there kind of watching. She'd come and go down there to him
and up and back and forth, and she had been sitting up there. And he had been
just yelling and screaming and cussing, and so had Ms. Lockard. And Ms. Clark
had been yelling and screaming back at them, telling them to shut up, and she
was just really -- she was really at that point worse than I had seen her in a
while. She was really upset. She was to the point where she was just yelling
back at him nonstop, making him shut up, because they -- you know, I was like
okay, you know. They had been doing this for some time, and I can see how this
would get on someone's nerves. And a layperson, they would probably think,
"Oh, my God. I can't handle this." But someone working in a jail,
it's just, "So what," you know, because this happens.
So she had been engaging in some pretty high-level verbal
conversation with him for a while, both of them.
Q: Okay. Let's talk about
the verbal conversations between she and Mr. McBride, right now. Did she -- you
said that they were yelling things back and forth. Did she at any point
threaten to use the Taser on him, on Mr.
McBride?
A: Yeah. She showed it to
him, too. And he told her to go ahead and do it. He said, "Go ahead and do
it. Shoot me, kill me, do whatever you want to do." Yeah. She showed it to
him.
Q: Do you recall any
particular phrases or words that Deputy
Clark used?
A: She kept telling him if
he didn't shut up, she was going to bring it over and use it, use this on him.
Now, I'm not sure if she used the word "Taser" or not.
Q: Okay. Did you say
anything to her about the use of the Taser?
A: No. It wasn't my
responsibility. It wasn't my position to. I mean, I -- no. I had nothing to do
with that. I don't even know how to use it.
. . .
Q: Did it appear to you that
the use of the Taser was for punishment?
Mr. Harpool: Objection. Calls for speculation.
Q: Go ahead and answer,
subject to the objection.
A: Okay. It appeared to me
the use of the Taser was to keep him quiet. And that's the best answer I can
give you.
Plaintiff also cites page
64, line 15 through page 66, line 24 of Kim Clark's deposition:
Q: I'm going to show you
what's been marked as Deposition Exhibit Clark 2. Do you -- it's also Bate
Stamp No. 47 of the request for production of documents. Do you recognize that
page?
A: Yes, I do.
Q: Okay. What do you recognize this to be?
A: My taser test portion of
it.
Q: A portion of it. It's not
the full test, though, right?
A. No.
Q: On No. 4 -- Question No.
4 of the test -- it's like a multiple choice question is how I would describe
that.
A: Um-hum. Yes.
Q: Do you recognize that?
The question says, "After deploying the advanced taser upon the
threat," and then it gives a series of possible correct and incorrect
responses. What does that mean, "threat"? It's in quotation marks or
-- yeah, quotation marks.
A: Threat is anything that
we see as potential of injury.
Q: Okay. And so that's what
it was discussed as in the course of your training?
A: Yes.
Q: Okay. So that's what
would constitute a threat in the course of your taser training at least?
A: Not the complete thing.
There's a number of variables that constitute a threat.
Q: Okay. What are they?
A: Are you -- are you in a
potential [sic] dangerous situation. Is the person that you're dealing with in
a potentially dangerous situation. Is there a chance of the problem escalating
further if you don't take immediate action now. Is a bystander going to be
injured or hurt.
Q: And so those are the
things that -- some of the factors you consider in whether or not there is a
threat that would require the use of a taser?
A: Yes.
Q: Other than the training
that was done at the sheriff's department, are you aware of any other meetings
or training regarding tasers that have been held at the Christian County
Sheriff's Department?
A: No.
Q: Other than the written
policy on use of tasers by the Christian County Sheriff's Department, are you
aware of any unwritten policies and procedures for their use?
A: Until recently we have
not had a written taser policy. It was all verbal policy.
Q: Okay. At the time of this incident with Holly, what was your
understanding of what the policy was in the Christian County jail?
A: Only use the amount of
force necessary to gain control of the situation.
Q: What was your
understanding about the use of specifically tasers in the jail at that time?
A: That it was -- on the use
of force pendulum, it was at the same level as pepper spray or OC.
Q: Okay. And how was it that
you came to -- to believe that?
A: That's what we were told
during training.
The evidence referred to by
the referred to by the respective parties speaks to different manners of
conformance with Deputy Clark's training and certification. Defendant's
evidence supports the proposition that Deputy Clark's actions conformed with
her training and certification regarding the part of the body on which she
should deploy the taser when using it in a stun drive, in that she deployed the
taser on Plaintiff's neck. By contrast, Plaintiff's evidence speaks to
conformity concerning whether Deputy Clark responded with the appropriate
amount of force as instructed during training. I, therefore, find this fact to
be controverted.
10. Defendant Kim Clark's tasering of Plaintiff's neck while he
was strapped in the Christian County Jail restraint chair resulting in physical
injury and mild scarring to the neck of Plaintiff.
Defendant does not dispute this fact.
Defendant further avers that such injuries are de minimis, and
constitutionally insufficient to support an 8th Amendment claim, citing Jones
v. Shields, 207 F.3d 491, 495 (8th Cir. 2000).
In response, Plaintiff denies that the injuries he suffered are
insufficient to support a claim of violation of his civil rights under the
United States Constitution, but admits his flesh was burned with the taser
resulting in small scars on his neck. He further states that the law holds that
an Eighth Amendment claim does not require "significant injury,"
Berry v. Oswalt, 143 F.3d 1127 (8th Cir. 1998), and, in some instances,
sufficient injury for excessive force claims - such as Plaintiff makes in this
case - may result from the use of pepper spray, like inJones v. Shields, cited
by Defendant. Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002).
Here, Plaintiff had not been convicted of a crime, so the Eighth
Amendment does not apply. See Wilson v. Spain, 209 F.3d 713, 715 (8th Cir.
2000); Putman v. Gerloff, 639 F.2d 415, 418-19 (8th Cir. 1981)(citing Bell v.
Wolfish, 441 U.S. 520, 535 n.16, 99 S. Ct. 1861, 60 L. Ed. 2d 447
(1979)(quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n.40, 97 S. Ct. 1401,
51 L. Ed. 2d 711 (1977)). Excessive force claims are compensable if an
"actual injury" is sustained. Morris v. Crawford County, 173 F. Supp.
2d 870, 873 (W.D. Ark. 2001)(citing Howard v. Barnett, 21 F.3d 868, 872-73 (8th
Cir. 1994)). In Morris, the court held that the bruises sustained as a result
of a deputy's "blows" constituted an actual injury.Id. Under this
analysis, the scars Plaintiff sustained from being tasered also constitute the
requisite "actual injury." I find Defendant's additional averment to
be controverted.
11. Christian County Jail nurse, David Honeycutt, testified that
he believed the tasering of Plaintiff by Defendant Kim Clark was "to keep
him quiet."
Defendant does not dispute this fact.
Defendant further avers that it was necessary for plaintiff to
be quiet in order to gain control and restore order, as plaintiff's loud
behavior was interfering with Kim Clark's ability to perform her job.
Plaintiff disputes this fact.
In support of this fact, Defendant cites page 51, line 11
through page 52, line 6, of Kim
Clark's deposition:
Q: All right. What's the
next thing that you remember happening with Kevin McBride?
A: He and Ms. Lockard began
screaming and yelling back and forth again. I asked them to quiet down, I
couldn't hear the people that I was booking in, their answers, and he was
disrupting the other inmates that were trying to sleep. He started rocking the
chair back and forth and trying to pop the I.V. out. I told him to stop. He
continued. I walked over with the TASER, placed it against the left side of his
neck and engaged it.
Q: Okay. So at that point
Mr. McBride and Holly Lockard were screaming and yelling at one another --
A: Yes.
Q: -- is that correct? And
it was interfering with your job duties?
A: Yes.
Q: Okay. And so to gain
control of the situation and to, I guess regain control over the situation, you
used the TASER?
A: Yes.
Plaintiff denies that it was necessary for Plaintiff to be quiet
in order to gain control and restore order, or that Plaintiff was interfering
with Defendant's ability to perform her job. In support of this denial, he
cites page 52, line 11 through page 57, line 5 of David Honeycutt's deposition:
A: I kept watching him right
there real close. We had the IV in him. I was over at my counter, and when I
turned around -- well, my counter was something like this, and he was -- he was
more like about where that wall is, right there, to that area where I'm at. And
all of a sudden, I heard something sizzling like bacon. They call it like
bacon. As a matter of fact, I said that.
And I turned my head, and Ms. Clark was tasering him in the neck,
and she tasered him five or ten seconds. I don't know. I mean, I can't remember
it, but it was a little bit of time. Enough time for me to hear it, turn my
head and look, and still see the Taser connected to his neck.
A. In the neck area, you
know. So that was -- you know if it had just been real quick, I wouldn't have
heard it and I wouldn't have been able to turn and see it, but I actually saw
it for a few seconds.
Q: All right. Did you hear a
ruckus or did you hear anything immediately prior to that?
A: I didn't hear anything
more than what had been going on for hours. Nothing different than what had
been going on for some time.
Q: All right. And when you
turned to look, was Mr. McBride still in the restraint chair?
A: Yes. He was strapped in.
Q: Were his hands were --
I'm sorry. Were his wrists strapped down?
A: Yes.
Q: Were his shoulders
strapped down?
A: Yes.
Q: Was he free to move
around?
A: No.
Q: Okay. Did you hear
Deputy Clark say anything to Mr.
McBride immediately prior to
hearing the sizzling sounds?
A: Well, Ms. Clark
had been up at the -- there's a computer and a couple steps up, and she
had been sitting there kind of watching. She'd come and go down there to him
and up and back and forth, and she had been sitting up there. And he had been
just yelling and screaming and cussing, and so had Ms. Lockard. And Ms. Clark
had been yelling and screaming back at them, telling them to shut up, and she
was just really -- she was really at that point worse than I had seen her in a
while. She was really upset. She was to the point where she was just yelling
back at him nonstop, making him shut up, because they -- you know, I was like
okay, you know. They had been doing this for some time, and I can see how this
would get on someone's nerves. And a layperson, they would probably think,
"Oh, my God. I can't handle this." But someone working in a jail,
it's just, "So what," you know, because this happens.
So she had been engaging in some pretty high-level verbal
conversation with him for a while, both of them.
Q: Okay. Let's talk about
the verbal conversations between she and Mr. McBride, right now. Did she -- you
said that they were yelling things back and forth. Did she at any point
threaten to use the Taser on him, on Mr.
McBride?
A: Yeah. She showed it to
him, too. And he told her to go ahead and do it. He said, "Go ahead and do
it. Shoot me, kill me, do whatever you want to do." Yeah. She showed it to
him.
Q: Do you recall any
particular phrases or words that Deputy
Clark used?
A: She kept telling him if
he didn't shut up, she was going to bring it over and use it, use this on him.
Now, I'm not sure if she used the word "Taser" or not.
Q: Okay. Did you say
anything to her about the use of the Taser?
A: No. It wasn't my
responsibility. It wasn't my position to. I mean, I -- no. I had nothing to do
with that. I don't even know how to use it.
. . .
Q: Did it appear to you that
the use of the Taser was for punishment?
Mr. Harpool: Objection. Calls for speculation.
Q: Go ahead and answer,
subject to the objection.
A: Okay. It appeared to me
the use of the Taser was to keep him quiet. And that's the best answer I can
give you.
Plaintiff also cites page
64, line 15 through page 66, line 24 of Kim Clark's deposition:
Q: I'm going to show you
what's been marked as Deposition Exhibit Clark 2. Do you -- it's also Bate
Stamp No. 47 of the request for production of documents. Do you recognize that
page?
A: Yes, I do.
Q: Okay. What do you recognize
this to be?
A: My taser test portion of
it.
Q: A portion of it. It's not
the full test, though, right?
A. No.
Q: On No. 4 -- Question No.
4 of the test -- it's like a multiple choice question is how I would describe
that.
A: Um-hum. Yes.
Q: Do you recognize that?
The question says, "After deploying the advanced taser upon the
threat," and then it gives a series of possible correct and incorrect
responses. What does that mean, "threat"? It's in quotation marks or
-- yeah, quotation marks.
A: Threat is anything that
we see as potential of injury.
Q: Okay. And so that's what
it was discussed as in the course of your training?
A: Yes.
Q: Okay. So that's what
would constitute a threat in the course of your taser training at least?
A: Not the complete thing.
There's a number of variables that constitute a threat.
Q: Okay. What are they?
A: Are you -- are you in a
potential dangerous situation. Is the person that you're dealing with in a
potentially dangerous situation. Is there a chance of the problem escalating
further if you don't take immediate action now. Is a bystander going to be
injured or hurt.
Q: And so those are the
things that -- some of the factors you consider in whether or not there is a
threat that would require the use of a taser?
A: Yes.
Q: Other than the training
that was done at the sheriff's department, are you aware of any other meetings
or training regarding tasers that have been held at the Christian County
Sheriff's Department?
A: No.
Q: Other than the written
policy on use of tasers by the Christian County Sheriff's Department, are you
aware of any unwritten policies and procedures for their use?
A: Until recently we have
not had a written taser policy. It was all verbal policy.
Q: Okay. At the time of this
incident with Holly, what was your understanding of what the policy was in the
Christian County jail?
A: Only use the amount of
force necessary to gain control of the situation.
Q: What was your
understanding about the use of specifically tasers in the jail at that time?
A: That it was -- on the use
of force pendulum, it was at the same level as pepper spray or OC.
Q: Okay. And how was it that
you came to -- to believe that?
A: That's what we were told
during training.
Deputy Clark's deposition
testimony demonstrates that Plaintiff's yelling and screaming was interfering
with her ability to book new inmates and was disrupting the other inmates who
were trying to sleep. The evidence referenced by Plaintiff does not dispute
these facts; instead, it merely confirms Plaintiff's loud and disruptive
behavior. I find this fact to be uncontroverted.
V. EXCESSIVE FORCE
Plaintiff's § 1983 claim is against Defendant in both her
individual and official capacities. Because different legal principles are
involved, each will be addressed separately.
Official Capacity
Plaintiff's allegations against Defendant Clark in her official
capacity are treated as allegations against Christian County. See Dornheim v.
Sholes, 430 F.3d 919, 926 (8th Cir. 2005)(stating that a suit against a
government official in his or her official capacity is treated as a suit
against the municipality he or she serves). As a result, Plaintiff's claim of
excessive force against Defendant Clark in her official capacity has already
been resolved in my order granting Defendant Christian County's motion for
summary judgment (Doc. # 78) and will not be set forth again here.
Individual Capacity
Defendant argues that she is entitled to qualified immunity on
Plaintiff's § 1983 claim. A government official is protected from personal
liability by qualified immunity unless "their alleged conduct violated
'clearly established statutory or constitutional rights of which a reasonable
person [in their positions] would have known.'" McCoy v. City of
Monticello, 342 F.3d 842, 846 (8th Cir. 2003)(quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). "The law is
clearly established if it gives the defendant official 'fair warning' that his
conduct violated an individual's rights when the official acted." Id.
(quoting Hope v. Pelzer, 536 U.S. 730, 739-40, 122 S. Ct. 2508, 153 L. Ed. 2d
666 (2002)).
In Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L.
Ed. 2d 272 (2001), the Supreme Court set forth a two-part analysis to be used
in determining whether officials are entitled to qualified immunity. First, a
court must consider the threshold question of if, "taken in a light most
favorable to the party asserting the injury, . . . the facts alleged show the
officer's conduct violated a constitutional right. Id. If a constitutional
right has not been violated, no further analysis is necessary. Id. "On the
other hand, if a violation could be made out on a favorable view of the
parties' submissions, the next, sequential step is to ask whether the right was
clearly established." Id.
Constitutional Violation
The constitutional standard for a § 1983 excessive force claim
differs depending of the status of the individual claiming a violation. Andrews
v. Neer, 253 F.3d 1052, 1060 (8th Cir. 2001). If the victim is an arrestee,
Fourth Amendment standards apply. Id. (citing Graham v. Connor, 490 U.S. 386,
388, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)); the Eighth Amendment protects
convicted inmates against excessive force. Id. (citing Whitley v. Albers, 475
U.S. 312, 318-22, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986)). "Between
arrest and sentencing lies something of a legal twilight zone." Wilson v.
Spain, 209 F.3d 713, 715 (8th Cir. 2000). "The Supreme Court has left open
the question of how to analyze a claim concerning the use of excessive force by
law enforcement 'beyond the point at which arrest ends and pretrial detention
begins.'" Id. The Eighth Circuit has not yet addressed this issue.
In this case, the parties disagree on the appropriate governing
standard. That is, Plaintiff argues that the Fourth Amendment's objective
reasonableness standard applies; Defendant contends that the Eighth Amendment
governs Plaintiff's excessive force claim. It is clear that the Eighth
Amendment does not apply, as Plaintiff had not yet been convicted of a crime
and was not serving a sentence at the time of the alleged violation. See
Wilson, 209 F.3d at 715 (stating that "the Eighth Amendment's ban on cruel
and unusual punishment applies to excessive-force claims brought by convicted
criminals serving their sentences"). It is less clear, however, whether
Plaintiff's claim is governed by the Fourth Amendment standard for arrestees or
the Fourteenth Amendment standard for pretrial detainees.
Here, Plaintiff was being held on a warrant for suspicion of a
drug-related offense. Although both parties categorize Plaintiff as a
"pretrial detainee," merely labeling him as such does not make it so.
Under factually analogous circumstances, courts of this circuit have applied -
and the Eighth Circuit has upheld - the Fourth Amendment standard rather than
the Fourteenth Amendment standard. See, e.g., Wilson, 209 F.3d at 715-16
(affirming application of Fourth Amendment standard to claim of excessive force
that occurred after Plaintiff had been booked and while he was in a holding
cell); Moore v. Novak, 146 F.3d 531, 535 (8th Cir. 1998)(affirming application
of the Fourth Amendment standard to claim of excessive force when alleged
violation took place during the booking process); Mayard v. Hopwood, 105 F.3d
1226, 1228 (8th Cir. 1997)(affirming application of Fourth Amendment standard
to claim of excessive force that occurred after Plaintiff had been arrested and
was being transported to police headquarters). As a result, I find that the
Fourth Amendment governs Plaintiff's excessive force claim.
To prevail on a claim of excessive force under the Fourth
Amendment, a Plaintiff must establish that the amount of force used was not
objectively reasonable under the particular circumstances. Greiner v. City of
Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994); Moore, 146 F.3d at 535.
"Circumstances such as the severity of the crime, whether the suspect
posed a threat to the safety of the officers or others, and whether the suspect
was resisting arrest are all relevant to the reasonableness of the officer's
conduct." Moore, 146 F.3d at 535 (citing Foster v. Metro. Airports Comm'n,
914 F.2d 1076, 1081 (8th Cir. 1990)).
In this case, the undisputed facts are that Plaintiff was
yelling vulgarities while in the Christian County Jail. His yelling and
screaming was both disrupting and upsetting other inmates and interfering with
Defendant's ability to do her job. Additionally, Plaintiff bit the straps of
his safety suit until successful in removing the suit, which Defendant
interpreted as an attempt to escape. After being placed in the restraint chair,
Plaintiff continued to yell and scream. He also dislodged his IV and caused
himself to bleed, all after having informed Defendant that he had Hepatitis C.
Moreover, Plaintiff does not dispute that Defendant deployed the taser for
Plaintiff's safety, officer safety in preventing the spread of communicable
disease(s), to maintain control of the jail population, and to gain Plaintiff's
compliance with verbal commands. Because, under these circumstances, Defendant
was objectively reasonably in applying force, summary judgment will be granted.
n4
VI. BATTERY
Plaintiff's battery claim is also against Defendant both
individually and in her official capacity. Because different legal principles
are involved, each will be addressed in turn.
Individual Capacity
"The official immunity doctrine provides that public
officials acting within the scope of their authority are not liable in tort for
injuries arising from their discretionary acts or omissions." DaVee v.
Mathis, 812 S.W.2d 816, 827 (Mo. App. 1991)(quoting Kanagawa v. State, 685
S.W.2d 831, 835 (Mo. banc 1985)); see also Seiner v. Drenon, 304 F.3d 810, 813
(8th Cir. 2002)(applying Missouri law); Deuser v. King, 24 S.W.3d 251, 254 (Mo.
App. 2000)(citing Green v. Denison, 738 S.W.2d 861, 865 (Mo. banc 1987)). If
the conduct involves ministerial acts, however, the official is not entitled to
immunity. Bachmann v. Welby, 860 S.W.2d 31, 33 (Mo. App. 1993). Discretionary
acts are those that require "the exercise of reason in the adaption of
means to an end and discretion in determining how or whether an act should be
done or a course pursued." Deuser, 24 S.W.3d at 254 (citing Rustici v.
Weidemeyer, 673 S.W.2d 762, 769 (Mo. banc 1984)). By contrast, ministerial acts
are "'of a clerical nature which a public officer is required to perform
upon a given state of facts, in a prescribed manner, in obedience to the
mandate of legal authority, without regard to [the officer's] own judgment or
opinion concerning the propriety of the act to be performed.'" Bachmann,
860 S.W.2d at 33 (quoting Jackson v. Wilson, 581 S.W.2d 39, 43 (Mo. App. 1979)).
Under Missouri law, the drawing and firing of a weapon is a
discretionary function. See, e.g., Seiner, 304 F.3d at 813; Murray v. Leyshock,
915 F.2d 1196, 1200 (8th Cir. 1990)(applying Missouri law); Miller v. Smith,
921 S.W.2d 39, 46 (Mo. App. 1996); Bachmann, 860 S.W.2d at 33. Much like
drawing and firing a firearm, the decision to deploy a taser is also a
discretionary function. Deployment of a taser is not a clerical act to be
performed within a prescribed manner. To the contrary, an officer uses his or
her professional judgment and discretion to determine when use of a taser is
appropriate and necessary. Although he or she may be guided by the general
parameters of a taser policy, by its very nature, such a policy cannot mandate
each and every circumstance in which a taser should or should not be deployed.
Deputy Clark is, therefore, entitled to official immunity in her individual
capacity and her motion for summary judgment on Count II is granted.
Official Capacity
A suit against a government official in his or her official
capacity is treated as a suit against the municipality he or she serves.
Dornheim, 430 F.3d at 926; see also Gordon v. City of Kansas City, No.
98-0951-CV-W-4, 1999 WL 33453793, at *5 n.3 (W.D. Mo. Nov. 2, 1999)(stating
that claims asserted against "the City and the individual defendants in
their official capacity, are barred by sovereign immunity under Mo.Ann.Stat. §
537.600"). Public entities are generally shielded by sovereign immunity
from liability for common law tort claims. See Mo. Rev. Stat. § 537.600.
"Intentional torts have consistently been found to fall within the shield
of sovereign immunity." Mitchell v. Village of Edmundson, 891 S.W.2d 848,
850 (Mo. App. 1995); see also Carmelo v. Miller, 569 S.W.2d 365, 367-68 (Mo.
App. 1978)(holding sovereign immunity applied to a claim for assault and
battery).
Here, Plaintiff's battery claim against Deputy Clark in her
official capacity is essentially a battery claim against Christian County, the
municipality for whom she works. Although Defendants' Joint Answer to
Plaintiff's Complaint includes the affirmative defense of sovereign immunity
(Doc. # 9, P1), neither Defendant Clark nor Defendant Christian County's motion
for summary judgment addresses this issue. Defendant Christian County,
therefore, has until Monday, March 20, 2006, to brief whether it is entitled to
summary judgment on this claim based on sovereign immunity. Plaintiff shall
respond no later than March 31, 2006.
VII. CONCLUSION
Based on the above findings of undisputed facts and the law as
discussed in section V, I find that there remain no genuine issues of material
fact, that Defendant's actions did not constitute excessive force, and that
Defendant is entitled to summary judgment on this ground. Furthermore, based on
the findings of undisputed facts and the law as discussed in section VI, I find
that there remain no issues of material fact and that Defendant is entitled to
summary judgment only in her individual capacity on Plaintiff's battery claim.
Therefore, it is
ORDERED that Defendant's Motion for Summary Judgment is granted.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
March 8, 2006
FOOTNOTES:
n1 On
January 23, 2006, Christian County's new sheriff, Mike Robertson, was
substituted in place of former Sheriff Joey Matlock (Doc. # 46).
n2
Defendant did not include Kim Clark's Answers to Interrogatories in her
attached exhibits. However, because it is apparent what document she is
referring to, because her interrogatories are included in the exhibits
submitted by co-defendants Christian County and Sheriff Robertson, and because
Plaintiff does not dispute this fact, I will treat this fact as supported by
the record.
n3
Defendant's Uncontroverted Fact No. 9 actually reads, "Kim Clark received
training on appropriate use of force, prior to June 18, 2005, during her
employment with the Christian County Sheriff's Department." (emphasis
added). I note that the year "2005" is a typographical error, as the
interrogatory and previous questions refer to the date in question as being
June 18, 2003.
In addition, I also note that Defendant did
not include Kim Clark's Answers to Interrogatories in her attached exhibits.
However, because it is apparent what document she is referring to, because her
interrogatories are included in the exhibits submitted simultaneously by
co-defendants Christian County and Sheriff Robertson, and because Plaintiff
does not dispute this fact, I will treat this fact as supported by the record.
n4 I
note that even under the Fourteenth Amendment standard, the result would have
been the same. In order for a pretrial detainee to prevail on an excessive
force claim, he or she must prove that the force was applied for the purpose of
punishment rather than as "an incident of some other legitimate
governmental purpose." Putman, 639 F.2d at 419. "Steps to maintain
security and order" has been held to be a legitimate governmental
objective. Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540, 99 S. Ct. 1861, 60
L. Ed. 2d 447 (1979)). Under this framework, Defendant would still be entitled
to summary judgment as the undisputed facts show that she deployed the taser
for Plaintiff's safety, officer safety in preventing the spread of communicable
disease(s), to maintain control of the jail population, and to gain Plaintiff's
compliance with verbal commands.