Bell v. City of York

ELIZABETH BELL, individually andas Executrix of the Estate of Joe Louis Bell, Plaintiff,

v. CITY OF YORK, ALABAMA;DAVID ROWRY, individually and as Chief of York Police Department, Defendants.

CASE NO. 7:09-CV-0694-SLB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

DONE: March 29, 2013

MEMORANDUM OPINION

This case is presently pending before the court on plaintiff's Motion for Partial Summary Judgment, (doc. 75),¹ defendant City of York's Motion for Summary Judgment, (doc. 78), and defendant David Rowry's Motion for Summary Judgment, (doc. 79). Plaintiff, Elizabeth Bell, has sued defendants, David Rowry and the City of York, alleging they wrongfully caused the death of her husband, Joe Louis Bell. Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that Mrs. Bell's Motion for Partial Summary Judgment, (doc. 75), is due to be denied; the City's Motion for Summary Judgment, (doc. 78), is due to be granted in part and denied in part; andRowry's Motion for Summary Judgment, (doc. 79), is due to be granted in part and denied in part.

I. SUMMARY JUDGMENT STANDARD

Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").

In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").

"The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment." Godard v. Alabama Pilot, Inc., 485 F. Supp. 2d 1284, 1291 (S.D. Ala. 2007) (citing Gerling Global Reinsurance Corp. of America v. Gallagher, 267 F.3d 1228, 1233 (11th Cir. 2001)). "Where, as here, the parties file cross-motions for summary judgment, a court 'must consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.'" Bio-Medical Applications of Georgia, Inc. v. City of Dalton, 685 F. Supp. 2d 1321, 1327 (N.D. Ga. 2009) (quoting Rossingnol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003)). "Cross-motions forsummary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed." United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (internal quotations).

II. MRS. BELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT

A. STATEMENT OF FACTS²

Rowry was hired as a police officer by the City of York, Alabama, in 2005. (Doc. 78-5 at 22.)³ Previously, Rowry had worked for the Sumter County Sheriff's Department. (Doc. 78-6 at 5.) His personnel file from the Sumter County Sheriff's Department contains two disciplinary write-ups for insubordination. (Id. at 2, 3.)

Shortly after the City hired Rowry, the Chief of Police of York died; the City Council and the Mayor appointed Rowry to be the Acting Chief of Police. (Doc. 78-1 at 27.) Later, Rowry submitted his application for the Chief of Police position and the Mayor and the City Council named him Chief of Police. (Id. at 28-30.) Nothing in the record indicates that Rowry was accused of excessive force or otherwise violating citizens' civil rights while with the York Police Department at any time before September 18, 2008.

On Tuesday, August 19, 2008, Mr. Bell entered the office of the Sumter County Record Journal in Livingston, Alabama, wanting to submit a letter to the editor to be published in that week's newspaper. (Doc. 78-4 at 7-8.) The publisher of the Journal, Tommy McGraw, informed Mr. Bell that it was past the deadline to run in that week's paper. (Id. at 8.) The letter also contained references to Mayor Carolyn Mitchell-Gosa, and McGraw wanted to check with the newspaper's attorney to be sure that the paper would not have any liability for printing the letter. (Id. at 8-9.) McGraw testified that, after he told Mr. Bell his letter would not be in that week's newpaper,

[Mr. Bell's] voice became louder, and . . . I believe he started accusing me of supporting Mayor Gosa. I told him that [the newspaper] did not endorse any political candidate. . . . He became louder, [and] disagreeable. Then he began to cuss, called me a mother fucker, said he was going to fuck me up and fuck everybody else up in the room or in the newspaper. He was going to fuck The Record Journal up. I took it as a threat that he was going to harm me. I asked him to leave about five times. He stepped toward me, [and] was just within inches of my face.

(Id. at 9.) McGraw and other employees of the newspaper called the police, at which time Mr. Bell left the building. (Id. at 9-10.)

Several days later, McGraw went to the Court Magistrate in Livingston and signed three warrants for Mr. Bell's arrest, and Mr. Bell was arrested. (Id. at 10, 13.)

On September 11, 2008, McGraw stopped for gas at the Jr. Food Mart in York. (Id. at 12-13.) When he entered the store, he saw Mr. Bell talking to a store employee. (Id. at 13.) According to McGraw, Mr. Bell began questioning him about why McGraw had had him arrested. (Id.) McGraw testified:

I said, "I signed a warrant because you threatened to fuck me up and fuck [up] everybody else that worked at The Record Journal . . . . And I took that as a threat and that's the reason I signed the warrant." He continued to curse and said the policeman who came to arrest him didn't even check him because he had a pistol in his pants and that they did not discover that, and he said the next time I [sent] an officer to have him arrested, that he was going to blow [his] mother fucking brains out. And at that point, I turned to leave the building, and he said, "And then I'm going to blow your fucking brains out." And I left the building.

(Id. at 13-14.) Mr. Bell told McGraw, "I had a dream about killing you." (Doc. 89 at 34.) Mrs. Bell contends that Cedric Bell, a Sumter County Deputy Sheriff who witnessed part of the encounter at the Jr. Food Mart, said Mr. Bell had accused McGraw of lying, but Mr. Bell had not threatened McGraw.⁴ (Id. at 7.) She also contends that Deputy Bell testified that McGraw "exaggerates everything." (Id at 8-9.) Deputy Bell gave a statement to the Sumter County Sheriff's Office on September 26, 2008, in which he recounted the Jr. Food Mart incident. (Id. at 34.) He stated:

I (Deputy Bell) was in the Jr. Food Mart buying a soda. Joe Bell and [the] cashier . . . [were] talking . . . . At that time, Mr. McGraw came into the store, spoke . . . and started walking toward the back of the store. Joe Bell said, "Don't speak to me." Mr. McGraw walk[ed] to the front of the store by the cash register and ask[ed] Mr. Bell why. Mr. Bell said, "Don't say a mother fucking thing to me" . . . . Mr. McGraw ask[ed] why again. Mr. Bell said, "You [know] what, I had a dream about killing you (Mr. McGraw). Mr. McGraw said, "Why do you [want] to kill me." Mr. Bell said about all those lies you . . . . put in the newspaper." Mr. McGraw said, "What lies[?] It was the truth." Mr. Bell [began] to get upset. I (Deputy Cedric Bell) step[ped] in and talk[ed] with Mr. McGraw and told him to just leave it alone, because you [know] where this is going. Mr. McGraw still was trying to talk with Mr. Bell. At that time I . . . left the store.

(Id.)

In his statement, Deputy Bell did not accuse McGraw of exaggeration. (Id.) He did not state that Mr. Bell had "accuse[d] McGraw of lying when he made the accusations that led to [Mr. Bell's arrest]." (Id. at 7, 34.) According to Deputy Bell, Mr. Bell accused McGraw of putting lies in the newspaper. (Id. at 34.) Although Deputy Bell did not report that Mr. Bell threatened to blow McGraw's brains out, he did state that, when he left the...