BELL, District Judge.
Plaintiff Jerry T. Coble ("Coble") appeals the district court's entry of summary
On April 6, 2007, at approximately 10:40 p.m., Officer Curtis Carney, Jr., was on patrol for the City of White House Police Department, when a truck driven by Coble exited the parking lot of Bob & Rhonda's Sports Grill and pulled onto the highway in front of Officer Carney's patrol car. After seeing the truck cross the fog line three times, Officer Carney activated his in-car video camera and flashing lights. Coble did not stop. He continued driving until he turned into the driveway of his home and reached the end of his driveway.
Officer Carney pulled up behind him and exited his patrol car. Coble did not obey Officer Carney's preliminary commands or answer his questions. Instead, he argued with Officer Carney, told him to get off his property, and began walking toward his house. When he failed to obey Officer Carney's command to stop, Officer Carney removed his chemical agent from its holster, sprayed Coble, and performed a take-down maneuver, during which Coble sustained an open fracture of his right ankle. After a struggle on the ground, Officer Carney, with the assistance of Officer Scott Bilbrey, who had arrived on the scene, succeeded in bringing Coble's arms behind his back and handcuffing him. Once Coble was handcuffed, he did not offer any further resistance.
The dispute that is at the heart of this appeal concerns what happened after Coble was handcuffed. None of these events were captured on videotape because they did not occur in front of the patrol car. However, even after Officer Carney and Coble were out of camera range, sounds transmitted by the microphone worn by Officer Carney continued to be recorded. Coble testified that Officer Carney pulled him up by the handcuffs, and, pushing him from behind, walked him 7 or 8 steps on his broken ankle, leaving a 34-foot trail of blood. Coble testified that Officer Carney would have known that his leg was broken because bones were sticking out of Coble's leg, his tennis shoe was laid over sideways, one of his legs was shorter than the other, and he was screaming and calling Officer Carney names. Coble testified that when Officer Carney finally stopped, he let go of the handcuffs and dropped Coble face-first on the concrete.
Officer Carney's testimony differs markedly from Coble's testimony. Officer Carney testified that, after handcuffing Coble, he and Officer Bilbrey helped Coble to a standing position and began walking with him toward the patrol car. After three or four steps, Coble said his leg was broken. Officer Carney testified that he looked down, saw that Coble's leg was broken, and immediately sat him down on the driveway.
Coble was transported by helicopter to a hospital. A blood sample collected from him at 2:10 a.m. on April 7, 2007, indicated a blood alcohol level of 0.16. Coble pled
Coble filed this action against Officer Carney, Officer Bilbrey, and the City of White House, alleging claims of excessive force, false arrest, and failure to implement appropriate policies under 42 U.S.C. § 1983, as well as state law claims of negligence, negligent infliction of emotional distress, negligent training and supervision, reckless infliction of emotional distress, and assault and battery. The claims against Officer Bilbrey were dismissed on stipulation of the parties. Officer Carney and the City of White House filed motions for summary judgment. The district court determined that Coble's § 1983 claim for the excessive use of force before he was handcuffed and brought under control was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). With respect to Coble's claim that Officer Carney used excessive force after he was handcuffed by walking him on a broken ankle and dropping him face-first onto the ground, the district court cited Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), in support of its determination that, in light of the audio recording, it was not required to accept Coble's version of the events:
Coble v. City of White House, Tenn., No. 08-314, 2009 WL 2850764, at *11 (M.D.Tenn. Aug. 29, 2009). The district court concluded that because Coble failed to generate a genuine issue of material fact for trial on his constitutional claim, Officer Carney was entitled to summary judgment.
The district court also concluded that Officer Carney was entitled to qualified immunity, and that there was no evidence to support Coble's claims against the City of White House for failure to train or supervise. The district court accordingly granted the defendants' motions for summary judgment on Coble's § 1983 claims, and declined to exercise supplemental jurisdiction over Coble's state-law claims. Coble appealed.
Coble's sole challenge on appeal is to the district court's determination that Officer Carney did not use excessive force after Coble was restrained in handcuffs.
We review a district court order granting summary judgment de novo. Schreiber v. Moe, 596 F.3d 323, 329 (6th Cir.2010). "Summary judgment is proper if the evidence, taken in the light most favorable to the nonmoving party, shows that there are
A constitutional excessive force claim is analyzed under an "objective-reasonableness standard, which depends on the facts and circumstance of each case viewed from the perspective of a reasonable officer on the scene." Miller v. Sanilac Cnty., 606 F.3d 240, 251 (6th Cir.2010) (citing Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "The first step in assessing the constitutionality of [an officer's] actions is to determine the relevant facts." Scott, 550 U.S. at 378, 127 S.Ct. 1769. To the extent there is disagreement about the facts, we must review the evidence in the light most favorable to the plaintiff, and draw all inferences in his favor. McKenna v. Edgell, 617 F.3d 432, 437-38 (6th Cir. 2010) (citing Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004)).
Construing the facts on summary judgment in the light most favorable to the non-moving party usually means adopting the plaintiff's version of the facts. Scott, 550 U.S. at 378, 127 S.Ct. 1769. However, the Supreme Court clarified in Scott that facts must be viewed in the light most favorable to the non-moving party "only if there is a `genuine' dispute as to those facts." Id. at 380, 127 S.Ct. 1769 (quoting Fed.R.Civ.P. 56(c)). In Scott, the Supreme Court held that a police officer was entitled to summary judgment on a motorist's claim that the officer used excessive force in ramming his car after a high-speed chase, notwithstanding the fact that the motorist and the officer gave conflicting testimony regarding the events in question. Id. at 386, 127 S.Ct. 1769. In Scott, the conflicting testimony did not create an issue of fact for trial because the record included a videotape capturing the police chase which clearly contradicted the motorist's contention that he was driving carefully. Id. at 379, 127 S.Ct. 1769. As noted by the Supreme Court:
Id. at 380, 127 S.Ct. 1769. In the summary judgment context, "appeals courts should not accept `visible fiction' that is `so utterly discredited by the record that no reasonable jury could have believed' it." United States v. Hughes, 606 F.3d 311, 319 (6th Cir.2010) (quoting Scott, 550 U.S. at 379-81, 127 S.Ct. 1769).
Coble contends that Scott and its progeny in the Sixth Circuit have limited Scott to cases where the events were recorded on a videotape,
There is nothing in the Scott analysis that suggests that it should be restricted
Accordingly, our decision does not turn on whether it was proper for the district court to consider the audio recording—it was—but on whether the district court properly found that Coble's testimony was "blatantly contradicted" by the audio recording in this case. We think not.
The district court found that the audio recording blatantly contradicted Coble's deposition testimony that he screamed during the first few steps while he was being escorted, and called Officer Carney names to get him to stop walking. This finding was based upon the lack of any audible screams or name-calling on the recording. The district court also found that no reasonable jury could find that Coble "splattered" on the pavement because there was "no audible noise that once could associate with a body dropping or `splattering' to the pavement." 2009 WL 2850764, at *11. The lack of sound on an audio recording cannot be reliably used to discount Coble's testimony. Many factors could affect what sounds are recorded, including the volume of the sound, the nature of the activity at issue, the location of the microphone, whether the microphone was on or off, and whether the microphone was covered. This case differs from Scott, where there were no allegations or indications that the recording was doctored or altered in any way, or any contention that what it depicted differed from what actually happened. Scott, 550 U.S. at 378, 127 S.Ct. 1769. Here, in contrast to the plaintiff in Scott, Coble does not merely characterize the recording differently. Rather, Coble insists that the facts differed from what was recorded. Coble testified that he screamed, that he called Officer Carney names, that he was forced to walk on his broken ankle, and that he was dropped face-first on the ground. His testimony is not "blatantly contradicted" by the lack of corroborating
In addition, the recording does not indicate when Officer Carney became aware of Coble's broken ankle, or how far he made Coble walk after he became aware of the injury. Facts that are not blatantly contradicted by the audio recording remain entitled to an interpretation most favorable to the non-moving party. Coble's testimony that Officer Carney would have known that his ankle was broken is not "so utterly discredited" by the audio recording, and must be construed in the light most favorable to Coble. Cf. Carter, 294 Fed.Appx. at 992 (denying summary judgment where the videotape did not "blatantly contradict" the plaintiff's description of what happened inside the store, and did not purport to cover, much less contradict, the excessive-force allegations regarding activities outside of the store).
Even if part of Coble's testimony is blatantly contradicted by the audio recording, that does not permit the district court to discredit his entire version of the events. We allow cases to proceed to trial even though a party's evidence is inconsistent, because "[i]n reviewing a summary judgment motion, credibility judgments and weighing of the evidence are prohibited." Schreiber, 596 F.3d at 333 (quoting Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.2009)). "[W]hen the non-moving party presents direct evidence refuting the moving party's motion for summary judgment, the court must accept that evidence as true." Id. (quoting Adams v. Metiva, 31 F.3d 375, 382 (6th Cir.1994)). "This is the case even when the nonmovant's account is contradictory." Id.; see also Shreve, 453 F.3d at 688 (crediting, for summary judgment purposes, the plaintiff's testimony as to excessive force, despite contradictions in her deposition); Jones v. Garcia, 345 Fed.Appx. 987, 990 (6th Cir.2009) ("But Jones' account does not require such a suspension of reality that no reasonable juror could accept it, and that is enough to allow a jury to hear the claim. That Jones may have a difficult time winning his case does not disable him from trying, at least so far as Rule 56 is concerned.").
We cannot say that Coble's version of the events was so utterly discredited by the record that no reasonable jury could believe it. Accordingly, there is a genuine question of material fact as to whether Officer Carney used excessive force, and the district court erred by granting summary judgment for Office Carney.
The district court also found that Officer Carney was entitled to qualified immunity. A defendant is entitled to qualified immunity unless the evidence, viewed in the light most favorable to the plaintiff, "would permit a reasonable juror to find that (1) the defendant violated a constitutional right; and (2) the right was clearly established." Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir.2010) (quoting Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir.2009)). The burden is on the
The district court held that Officer Carney was entitled to qualified immunity because Coble failed to show the violation of a constitutional right. The district court based this finding, like its summary judgment finding, on the audio recording. Because we have determined that it was improper to rely on this audio recording over Coble's version of events, this finding is also subject to reversal.
In light of its conclusion that Coble failed to show the violation of a constitutional right, the district court did not consider the second prong of the qualified immunity analysis. We leave consideration of whether the right was clearly established for determination by the district court in the first instance.
Because there is a genuine issue of material fact as to whether Officer Carney used excessive force after Coble was handcuffed, we
