Carl Bohannon v. Town of Monterey, Tenn. , 677 F. App'x 213 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0058n.06
No. 16-5537
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARL BOHANNON, ) FILED
) Jan 24, 2017
Plaintiff-Appellant, )
DEBORAH S. HUNT, Clerk
)
v. )
)
TOWN OF MONTEREY, TENNESSEE; BILL )
RANDOLPH, in his individual capacity and in his ) ON APPEAL FROM THE
official capacity as Chief of Police of the Monterey ) UNITED STATES DISTRICT
Police Department; DONATHAN DURHAM, in his ) COURT FOR THE MIDDLE
individual capacity and his official capacity as an ) DISTRICT OF TENNESSEE
employee of the Monterey Police Department; )
JACOB CROSS, a citizen; AMANDA MATHNEY, a )
citizen; JASON DAVIDSON, )
)
Defendants-Appellees. )
)
BEFORE: COLE, Chief Judge; BOGGS and SILER, Circuit Judges.
BOGGS, Circuit Judge. This case presents us with a clash of narratives: Carl Bohannon
states that he was sitting on the ground after an unprovoked assault and was shot in the back with
a Taser by Officer Donathan Durham. Officer Durham asserts that Bohannon was in a daze,
staggering around and presenting a danger to himself and others. At summary judgment we must
take the record in the light most favorable to the nonmoving party and thus Bohannon’s account
controls. Because the district court combined the two accounts to make one (certainly plausible)
account rather than evaluating the question of qualified immunity based upon Bohannon’s
account, we must reverse the grant of summary judgment and remand for further proceedings.
No. 16-5537
Bohannon v. Town of Monterey
I
Shortly after dusk on the evening of September 26, 2013, Carl Bohannon was sitting in
his car in the Monterey Dairy Queen parking lot. Having recently finished a round of shooting at
the gun range and looking forward to a date, Bohannon grabbed a beer from the eighteen-pack he
had purchased minutes before and began drinking. The accounts of the facts begin to diverge
here.
According to Bohannon’s deposition testimony, he had just completed a phone call when,
suddenly, a car sideswiped his vehicle and broke his mirror. The other car stopped and the
driver, Amanda Matheney, emerged with two passengers, Jacob Cross and Jason Davidson.
As Bohannon stepped out of his car, Davidson “came flying out . . . swinging” without
provocation. The two male passengers tackled Bohannon and left him on the ground, and the
trio returned to their car and pulled into the drive-through to order food. Bohannon followed
them and told them he would not let them leave. Matheney, Cross, and Davidson exited their
car, and Davidson began punching Bohannon again, knocking him to the ground. Bleeding,
Bohannon grabbed Davidson, who pummeled Bohannon, who was lying on his back. Bohannon
did not return the blows and assumed the group was on drugs. Abruptly, Matheney, Cross, and
Davidson moved away from Bohannon and sat down on the curb. Bohannon began to sit up,
when his leg buckled and he felt as though his heart had given out. Although he did not realize
it, he had just been shot in the back with a Taser by an arriving officer, Donathan Durham,
without warning. After asking the officer why he had been tased, Bohannon was taken in
handcuffs to the hospital, but was later released.
According to Durham’s deposition testimony, he found Bohannon lying on his back two
feet from the street, “appear[ing] to be knocked out, unconscious.” Bohannon stood up and then
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stumbled about, falling several times, including once in the roadway. Durham asked Bohannon
to sit down, which he did, but then when he attempted to stand again, Durham told Bohannon “if
you don’t stay down, I’m going to be forced to tase you.” As Bohannon rose, Durham shot him
in the back with a Taser to prevent him from moving out into the roadway.
Cross said in a sworn statement that he was walking by the Dairy Queen when his friend
Davidson pulled into the parking lot and called him over. Bohannon came over to the car and
began cursing at Davidson and started to fight with him. Davidson gained the upper hand and
pinned Bohannon to the ground, at which point Bohannon yielded. Davidson drove to the drive-
through, and Bohannon returned, striking Davidson’s car with his fists. Davidson got out of the
car and knocked out Bohannon. Davidson was then told by arriving officers to sit down.
Bohannon attempted to stand despite officers’ commands not to do so, and staggered around
until being tased.
Bohannon brought suit in Tennessee state court against Chief of Police Bill Randolph of
the Monterey Police Department, Officer Durham, the Town of Monterey, Davidson, Cross, and
Matheney for violations of the Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution and assault, battery, and negligent infliction of emotional distress under Tennessee
law, and against Chief Randolph for failure to train his officers properly. Defendants removed
the case to federal court under the authority of 28 U.S.C. §§ 1331 and 1343. There, Plaintiff
voluntarily requested to dismiss his Fifth Amendment and negligent-infliction-of-emotional-
distress claims.
After a motion for summary judgment from Durham, which was joined by the Town of
Monterey and Randolph, the district court found that Durham was entitled to qualified immunity,
and as a result that the claims against the Town of Monterey and Randolph could not be
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sustained. Without any further federal claims, the court remanded the remaining state-law
claims to the Putnam County Circuit Court.
II
A
We review a district court’s grant of summary judgment de novo. Darrah v. City of Oak
Park, 255 F.3d 301, 305 (6th Cir. 2001). Summary judgment is proper where “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). In determining whether a genuine dispute exists, we assume the
truth of the nonmoving party’s evidence and draw all inferences in the light most favorable to
that party. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Should sufficient evidence
exist for a trier of fact to find for the nonmoving party, summary judgment is inappropriate.
See id.Claims under 42 U.S.C. § 1983 require an alleged deprivation of a federal right by
someone acting under color of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640
(1980). Government officials performing discretionary functions are protected by qualified
immunity where “their actions could reasonably have been thought consistent with the rights
they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987); see also
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). An officer violates the Fourth Amendment when
he uses objectively unreasonable force in light of the facts and circumstances. Graham v.
Connor, 490 U.S. 386, 397 (1989). The reasonableness of force is determined “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Id. at 396.
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Bohannon v. Town of Monterey
B
A threshold matter that has significant impact on the resolution of this case is whose
account to use in determining whether Bohannon’s rights were violated. The district court
rooted its analysis in the story as presented by Durham and Cross, rationalizing its use of those
facts by stating that “Plaintiff simply does not recall most of what went on in the parking lot.”
But in doing so, the court appears to have assumed that all the facts alleged by both parties
occurred, and then reasoned that the events alleged by Defendants must have occurred while
Bohannon was in shock. Yet Bohannon clearly alleges that no significant time passed between
when the trio moved away from him and sat down and when he was struck by the Taser. Given
that, at this stage, “this court views the factual evidence and draws all reasonable inferences in
favor of the nonmoving party,” we must therefore take the facts as provided by Bohannon, at
least where not blatantly contradicted by the record. McLean v. 988011 Ont., Ltd., 224 F.3d 797,
800 (6th Cir. 2000); see Scott v. Harris, 550 U.S. 372, 380 (2007).
Admittedly, some comments from Bohannon’s testimony and responses to Defendant’s
proffered statement of undisputed facts, if taken literally, seem to indicate that Bohannon did not
recall the incident. First, he repeatedly stated, “It is denied that at no time during the altercations
did Mr. Bohannon feel that he was knocked out.” Of course a denial that something never
occurred is an admission that it occurred at some point, but the citations provided by Bohannon
to these statements belie that conclusion. He cites a medical report and a statement in his
deposition where he describes the second altercation and the arrival of the police without gaps in
his account. Second, Bohannon frequently stated that he “does not recall any instructions given
to him by Officer Durham.” But this statement can be understood in two ways: either the events
happened and Bohannon cannot recall them because he was unconscious or dazed, or Bohannon
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cannot recall them because they did not happen. Because all of these statements are
accompanied with denials that the alleged facts occurred, rather than explained as occurrences
that Bohannon is unable to admit or deny per Federal Rule of Civil Procedure 36(a)(4), they can
be best understood as asserting that Bohannon does not recall the statements because they did not
happen. Finally, with regard to his statements that he “was really in shock,” and that “it wasn’t
registering, what was going on,” Bohannon immediately made clear that he meant that he did not
understand why the three defendants suddenly attacked him or later sat down in unison, not that
his memory was fogged. Indeed, he then proceeded to describe what happened next without
mention of a gap in time or his account.
Where, as here, statements and facts in the record can be reasonably interpreted in a
manner consistent with a nonmoving party’s claim, they should be. Accordingly, Durham’s
testimony was not “uncontradicted,” but rather was in direct contradiction with Bohannon’s
testimony that he was shot after attempting to rise from the ground for the first time after Cross
and Davidson had moved away. This case differs from Wysong v. City of Heath, 260 F. App’x
848 (6th Cir. 2008), where the plaintiff admitted to not remembering any of the events or the
timespan in question and could not testify as to what happened, id. at 851. Here, Bohannon’s
testimony provides his own version of events, which we may use in determining whether
Durham’s conduct was objectively unreasonable. Where that testimony creates a factual
question regarding the violation of constitutional rights, it is enough to defeat summary
judgment. See id. at 858 (“[A] single difference in the record would lead to a different
result[:] . . . [if] Wysong could raise a fact question through his own testimony . . . .”).
Using only Bohannon’s description of the facts, it is manifest that the force used by
Durham was unreasonable. According to this account, Bohannon was sitting up after being
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beaten by attackers and then was tased in the back by Durham. “[T]he right to be free from
physical force when one is not resisting the police is a clearly established right,” and tasing
someone in the back without warning while he sits on the ground or attempts to stand, absent any
threat to the safety of the individual or others, would violate this clearly established right. Id. at
856; see Bennett v. Krakowski, 671 F.3d 553, 562 (6th Cir. 2011). It bears repeating that this
version of events is disputed by Durham and Cross, but that dispute only confirms that there
exists a genuine issue of material fact with regard to whether Bohannon’s rights were violated.
III
It is entirely possible that Durham’s account of what happened on September 26 is
wholly accurate, and Bohannon was in such shock that he did not recall stumbling around after
the second altercation. But possibility alone is insufficient to overcome a party’s sworn
statements to the contrary. Therefore, there is a genuine issue of material fact that may be best
resolved before a fact-finder. As a result, we REVERSE the district court’s grant of summary
judgment as to the excessive-force claim and its remand order and REMAND to the district court
for proceedings consistent with our opinion.
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