This matter comes before the Court on defendants’ Motion for Summary Judgment (doc. Í3). The Motion has been extensively briefed and is ripe for disposition. Also pending is defendants’ Motion to Strike Affidavit of Faya Rose Toure (doc. 23), as to which plaintiff did not respond within the time allotted by Civil L.R. 7(c).
I. Nature of the Case.
On the afternoon of December 4, 2013, City of Selma Police Officer Desmond Williams' shot and killed- Ananias Shaw, a 74-year old male wielding a hatchet, as he stood outside a residence in Selma, Alabama. Edward Shaw, acting in the capacity of personal representative for Shaw’s estate,
The Complaint purports to assert 'no fewer than 22 causes of action against defendants, sounding in theories of wrongful death, unreasonable use of force, false arrest (Fourth Amendment violation), false imprisonment (pleaded twice), policy of inadequate training and supervision, custom of police abuse (pleaded twice), custom of deliberate indifference relating to hiring, deliberate indifference to repeated complaints (pleaded twice), civil conspiracy (pleaded twice), assault and battery, false arrest (without mention of Fourth Amendment), invasion of privacy, negligence, wantonness, negligent/careless/unskillful hiring, negligent/careless/ unskillful training or supervision, tort of outrage, and violation of Article 1, Section 1 of the Alabama Constitution. (See doc. 1-1.)
Defendants now move for summary judgment on all claims and causes of action interposed in the Complaint against all defendants.
II. The Motion to Strike.
Antecedent to addressing the Motion for Summary Judgment, the Court pauses to consider defendants’ Motion to Strike (doc. 23). As part of his summary judgment response, plaintiff submitted the “Affidavit
In her Affidavit, Toure touts her membership in an organization known as the “Due Process Committee,” which “investigates complaints of due process violations and suspected inequities in the criminal justice system in Selma, Alabama.” (Toure Aff., at l.)
The Court agrees with defendants that the Toure Affidavit suffers from several significant defects that necessitate its deletion from the summary judgment record. As an initial matter, it is uncontro-verted that plaintiff never disclosed Toure as a witness, whether in his initial disclosures pursuant to Rule 26(a)(1)(A), in discovery responses, or in supplemental disclosures pursuant to Rule 26(e). Of course, Rule 26(a) mandates disclosure of “the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Rule 26(a)(l)(A)(i), Fed.R.Civ.P. The Rule 16(b) Scheduling Order unambiguously directed that “[t]he initial disclosures required by Fed.R.Civ.P. 26(a)(1) are ORDERED to be made by the parties not later than
By all appearances, the first notice defendants received that Toure is or might be a witness for plaintiff was. the receipt of her summary judgment affidavit on February 3, 2017. That is simply too late. Under the circumstances, the Court concludes that plaintiff failed timely to disclose Toure as a witness. That omission implicates Rule 37(c)(1), which provides that “[i]f a party fails to provide information or identify a witness as requited by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, ... unless the failure was substantially justified or is harmless.” Rule 37(c)(1), Fed.R.Civ.P. Plaintiff has made no argument and no showing that his failure to identify Toure in a timely manner was substantially justified or harmless. Accordingly, the Court finds that striking the Toure Affidavit is an appropriate sanction pursuant to Rule 37(e)(1).
Even if plaintiffs nondisclosure of Toure as a witness did not warrant striking her affidavit pursuant to Rule 37(c)(1) (which it does), defendants’ Motion to Strike would be properly granted for two independent reasons. First, insofar as Toure’s Affidavit merely parrots back what Toure says witnesses told her, such testimony does , not appear capable of being presented in admissible form at trial.’ See, e.g., Johnson v. Mobile Infirmary Medical Center,
A second independent reason for striking the Toure Affidavit is that it includes substantial information that is irrelevant to the issues joined in this case for trial. For example, Toure’s role in the Due Process Committee, that Committee’s activities, and the Committee’s discussions with the District Attorney concerning facts and testimony that were or were not known to the grand jury are simply not relevant to the claims and issues joined in the Complaint.
For all of these reasons, the Motion to Strike (doc. 23) is granted. The Affidavit of -Faya Rose Toure (doc. 21, Exh. 7) is stricken from the record,- and will not be considered or weighed in any manner in the adjudication of defendants’ Motion for Summary Judgment.
III. Background Facts.
A. Circumstances Leading to the Dispatch Call.
Shortly after 2:00 p.m. on December 4, 2013, Aninias Shaw attempted to enter the Church’s Chicken restaurant on Broad Street in Selma, Alabama. Shaw was known to the restaurant staff as a longtime customer who “had came in there other times and cursed us out and stuff.” (Lindsey Dep. (doc. 13, Exh. 6), at 5-6, 8.) To the restaurant’s general manager, Ricky Austin, Shaw- was known as a customer who had caused problems necessitating police intervention' in the recent past. (Austin Dep. (doc. 13, Exh. 7), at 5-6, 11.)
Back to the afternoon of December 4, Austin observed Shaw approaching the entrance of the Church’s Chicken restaurant armed with a hatchet. (Austin Dep., at 6.) Austin reached the door first, and told Shaw, “[N]o, you cannot come in.” (M)
B. The Shooting.
One recipient of the dispatch was City of Selma Police Officer Desmond Williams, who was driving his patrol car approximately two minutes away from the Church’s Chicken restaurant. (Williams Dep. (doc. 13, Exh. 2), at 10-11.) Officer Williams had been hired by the Selma Police Department in August 2009, and had completed a 480-hour course at the Alabama Criminal Justice Training Center in November 2009. (Doc. 13, Exh. 11.) He had also completed numerous continuing education courses on topics such as use of force, interviewing individuals with mental illnesses, search and seizure, and firearm safety. (Id.) Upon receiving the dispatch, Officer Williams was contacted via radio by Detective Ronald Jones, who was completing a traffic stop in that area and had spotted Shaw in an alley near the Church’s Chicken hollering and screaming to himself. (Jones Dep. (doc. 13, Exh. 4), at 6,10.) Detective Jones believed that Shaw had gone into an abandoned laundromat building at the corner of Griffin and Washington, and could hear a person who he thought was Shaw being loud and “raising Cain” inside that building. (Id. at 18.) Detective Jones notified Officer Williams by radio that Shaw was in that abandoned laundromat. (Williams Dep., at 11.) Altogether, three Selma Police officers (the third being Officer Daniel Boone) responded to the call and arrived at the laundromat almost contemporaneously.
Officer Boone was familiar with Shaw, having dealt with him several times and having arrested him for public intoxication and disorderly conduct in the past. (Boone Dep. (doc. 13, Exh. 13), at 11-12.) When all three officers had arrived and exited their vehicles, Officer Boone went inside the abandoned building alone “to try to talk to Mr. Shaw and get him out” so that the officers “can talk and see what’s going on,” particularly given that there had been multiple instances of Shaw being disorderly at Church’s Chicken. (Id. at 11, 14, 16.) Officer Boone asked Shaw to come out and talk. (Id. at 18.) In response, Shaw bent down and picked up a hatchet. (Id.) Officer Boone felt threatened, reasoning, “Mr. Shaw had a hatchet in his hand and posed a threat to me. If I would have let him leave, he would have posed a threat to the community as well.” (Id. at 19.) When he saw Shaw pick up the hatchet and begin walking towards him, Officer Boone immediately drew his weapon and backed out of the building. (Id. at 25, 27.) Both Officer Boone and Shaw, still wielding the hatchet, exited the building, coming outside to where Detective Jones and Officer Williams were.
At the 1:50 mark, Detective Jones says, “You see his shoes right there?” and Officer Williams (who is now bending down to peer into the opening) answers affirmatively, with both officers chuckling. Officer Boone can be heard inside telling Shaw, “I just want to talk to you.” Moments later, at the 1:57 mark, Officer Boone is heard (still inside the building) saying firmly and clearly, “Put the axe down.” Officer Williams loudly repeats the command, “Put the axe down,” approximately five times over the next 10 seconds, by which time Shaw has emerged from the building, still carrying the axe, and is now close by the other officers. At the 2:12 mark, Officer Williams, still loudly and forcefully saying “put the axe down” over and over again, draws his service firearm and points it at Shaw with both hands. Shaw appears on the screen at around 2:14, and commences walking away from the building, cursing and yelling as he does so, and saying, “I ain’t putting a goddamned thing down.” As Officer Williams and the other officers repeat the command to put the axe
By the 3:00 mark, Shaw is walking through what appears to be a residential or mixed-use area. Several people can be seen standing outside a house a short distance from where Shaw is. The officers continue to command Shaw to put the axe down and reassure him “we want to talk to you.” However, Shaw keeps walking away; still grasping the weapon in his right hand. At the 3:10 mark, Shaw has slowed down and almost stopped walking. Following from a close distance, Officer Williams raises his firearm with both hands and again commands him to put the axe down. Beginning at the 3:20 mark, the situation escalates at lightning speed. Shaw steps off the street and into a grassy strip in front of a house (where several people are seen sitting on a porch), wheels and yells at the officers. At 3:23, Shaw turns to face Officer Williams, then shouts, “Shoot it! Shoot it!”- Officer Williams responds, “I will pop you,” as Shaw faces him from just a few feet away. At 3:25, Shaw moves suddenly toward Officer Williams; however, Shaw’s right arm and the exact position of the axe are out of the frame. At 3:26, Shaw — still moving toward, and by this time less than five feet away from, Officer Williams — yells, “Shoot it!” again. His right arm and the axe remain outside the frame. Immédiately (and still at the 3:26 mark), Officer Williams fires a single gunshot at Shaw’s chest from very close range. Shaw falls to the ground.
In his deposition, Officer Williams explained that Shaw “was a threat to myself and to the other people around us.... His intentions were to hurt myself and possibly other people around us.” (Williams Dep., at 34.) When asked why he shot
IV. Summary Judgment Standard.
Summary judgment, should be granted only “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.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc.,
A. Fourth Amendment Excessive Force Cause of Action.
In Count 2 of the Complaint, plaintiff asserts a § 1983 claim for excessive force, alleging that Officer Williams violated Shaw’s Fourth Amendment right to be free from unreasonable searches and seizures. On summary judgment, Officer Williams invokes the doctrine of qualified immunity, which “offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Vinyard v. Wilson,
“[AJpprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner,
The uncontested summary judgment record establishes that, at the moment Officer Williams fired the fatal gunshot, Shaw would have appeared to reasonable police officers to be gravely dangerous. Shaw was holding a deadly weapon — the hatchet — in his right hand. He had refused to comply with literally dozens of pointed, direct commands by law enforcement officers during the previous 90 seconds to relinquish that deadly weapon. He had displayed open hostility and erratic behavior, including a stream of profanity and often incoherent invective directed at Officer Williams and his colleagues. At the- decisive moment, Shaw abruptly stopped walking away from Officer Williams, wheeled around to face him, screamed “shoot it! shoot it!” and either charged or lunged toward Officer Williams, still holding the hatchet in his right hand at a distance of no more than a couple of feet away from the officer. Both Officer Williams and numerous other witnesses testified that Shaw was raising the hatchet as he did so, as if preparing to strike Officer Williams.
In so concluding, the Court has considered multiple counterarguments raised by plaintiff. First, plaintiff presents a series of arguments second-guessing the police officers’ decisions to confront Shaw in the abandoned laundromat, to follow him down the street, and to point a firearm at him. Those contentions are rejected for the reasons set forth infra, in the context of plaintiffs false arrest / false imprisonment claims.
Fourth, plaintiffs assertion that Officer Williams “provoked the decedent to turn around; by following him unlawfully with a loaded weapon trained at the back of the decedent’s head” (doc. 21, at 12) is factually and legally misguided. As a factual matter, no reasonable observer watching the video could conclude that Officer Williams provoked Shaw to attack him. Officer Williams was attempting to defuse a tense .and rapidly evolving situation by directing an erratic, hostile, armed suspect to relinquish his deadly weapon. No one will ever know why Shaw refused the officers’ instructions and instead lunged toward Officer Williams while still carrying his axe. But it does not matter. On this record, no reasonable finder of fact could attribute Shaw’s conduct to “provocation” by defendants. Even if plaintiff could make á factual showing of provocation, this argument would fail to overcome Officer Williams’ cloak of qualified immunity because there was no clearly established law declaring it unconstitutional for a police officer to approach a suspect or “provoke” a confrontation. See, e.g., Davidson,
The fundamental defect in all of plaintiffs excessive force arguments is that they disregard the Supreme Court’s admonition that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Penley,
Counts Three and Four of the Complaint set forth what appear to be § 1983 claims of false arrest and false imprisonment.
1. False Arrest.
As to false arrest, plaintiff asserts that (in addition to the use of deadly force addressed supra) defendants violated Shaw’s rights to be free from false arrest because “[pointing a weapon at a subject is also a seizure under the Fourth Amendment.” (Doc. 21, at 16.) Plaintiff elaborates, with no citations to authority, that Shaw “was unlawfully seized the moment Williams trained his weapon on him ... when Williams first arrived at the laundromat.” (Id. at 17.) The threshold defect in this claim is that a § 1983 false arrest claim requires an arrest. See, e.g., Brown v. City of Huntsville, Ala.,
Notwithstanding the foregoing, the Court will examine the entirety of the officers’ interaction with Shaw from a Fourth Amendment standpoint, on the off-chance that plaintiff may be asserting a § 1983 claim predicated on an alleged unconstitutional, non-arrest seizure of Shaw preceding the fatal shooting. As an initial matter, plaintiff suggests that the officers violated the Fourth Amendment by merely speaking with Shaw on the day in question. Plaintiff posits that the underlying offense (disorderly , conduct) was a misdemeanor, that the officers did not have authority to arrest Shaw, that they should not have gone into the abandoned laundromat to speak with Shaw, and that they should have left him alone as he walked down Griffin Avenue towards Church’s Chicken wielding a hatchet. All of these assertions are flatly irreconcilable with well-settled Fourth Amendment principles.
“In Terry v. Ohio, the Supreme Court held that an officer does not violate the Fourth Amendment by conducting a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Moore v. Pederson,
In short, nothing about the officers’ conduct in the approximately two-minute interval spanning from Officer Boone’s entrance into the abandoned laundromat until the moment when Shaw turned around and charged at Officer Williams constituted an unreasonable seizure under the Fourth Amendment that might support officer liability under § 1983.
2. False Imprisonment.
Plaintiff also asserts a false imprisonment claim under § 1983 “based on the protection of the Fourteenth Amendment against deprivations of liberty without due process of law.” (Doc. 21, at 16.) The Eleventh Circuit recently set forth the elements of a § 1983 false imprisonment claim as follows:
“A § 1983 claim of false imprisonment requires a showing of common law imprisonment and a due process violationunder the Fourteenth Amendment.... The elements of common law false imprisonment are an intent to confine, an act resulting in confinement, and the victim’s awareness of confinement.... A plaintiff must also prove that the defendant acted with deliberate indifference in violating the plaintiffs right to be free from continued detention after the defendant knew or should have known that the detainee was entitled to release.”
May v. City of Nahunta, Georgia,
The most fundamental problem with plaintiffs false imprisonment claim is that there was no confinement in this case. To be sure, Officer Williams drew his firearm, pointed it at Shaw, and issued certain commands to him. But none of those directives operated as a “direct restraint” on Shaw, compelled him to remain in a specific place or to go to a specific place, or otherwise operated to confine his movement in any form or fashion. The officers never commanded Shaw to stop moving or to go someplace else, but instead simply instructed him to disarm himself. Indeed, the proof is in the pudding. Shaw continued walking down the street as he pleased, without regard to what the officers were telling him. His freedom of movement was untrammelled by anything the officers said or did. Given these circumstances, there was nothing that could rationally be deemed a “confinement” or a “direct restraint;” therefore, plaintiffs false imprisonment claim fails as a matter of law.
C. “Policy or Custom” Liability for the City of Selma.
In Counts 5 through 9 of the Complaint, plaintiff appears to assert various claims of § 1983 municipal liability against defendant City of Selma, grounded in theories of a policy of inadequate training and supervision, a custom of police abuse, a custom of deliberate indifference in hiring, and deliberate indifference to repeated complaints. With respect to all of these causes of action, plaintiff includes only a grand total of one paragraph in his summary judgment brief, wherein he (i) acknowledges his obligation “to identify a policy or custom of the police department that contributed to his injury,” and (ii) states that the Selma Police Department “never had consistent training in dealing with mentally ill,” and (iii) indicates that Officer Williams “had only an 8 hour workshop on dealing with the mentally ill.” (Doc. 21, at 17.)
The defects in plaintiffs § 1983 municipal liability claims are glaring. As an initial matter, the Court has already found that Officer Williams and his colleagues did not violate Shaw’s Fourth Amendment or Due Process rights in connection with their investigatory stop, their acts of following him down the street with weapons drawn and telling him to put down the hatchet, or the fatal shooting
Even if plaintiff had shown a constitutional deprivation by Officer Williams, § 1983 liability could not attach to the City under these circumstances. The parties agree that the plaintiff must “identify a municipal policy or custom that caused his injury.” Gold v. City of Miami,
Even if plaintiff could overcome all of these problems, his § 1983 failure-to-train claims against the City of Selma would nonetheless fail as a matter of law. It is well-settled that “under § 1983, a supervisor can be held liable for failing to, train his or her employees only where the failure to train amounts to deliberate indifference to the rights of persons with whom the [officers] come into contact.” Keith v. DeKalb County, Georgia,
For all of these reasons, summary judgment is properly entered in favor of the City of Selma as to all claims seeking § 1983 municipal liability.
D. State-Law Claims,
What remains of the Complaint is a grab-bag of state-law claims. The only such causes of action that plaintiff identifies in his summary judgment Response as
1. Claims against Officer Williams.
In Count 11, plaintiff asserts a cause of action against Officer Williams for assault and battery, stating that he was “careless and unskillful in shooting the Decedent.” (Complaint, ¶ 56.) Under Alabama law, a police officer may use a reasonable amount of force and may be held liable only if he or she uses more force than is necessary. See Walker v. City of Huntsville,
In Count 15 of the Complaint, plaintiff purports to bring a state-law invasion of privacy claim, on the ground that “[t]he Defendant Officers intentionally intruded upon the solitude or seclusion of the Decedent by invading his emotional sanctum.” (Complaint, ¶ 77.) Alabama law requires that a claim for invasion of privacy predicated on a wrongful intrusion requires a showing that “the thing into which there is intrusion or prying is entitled to be private,” after which “the court will consider two primary factors in determining whether an intrusion is actionable: (1) the means used, and (2) the defendant’s purpose for obtaining the information.” Martin v. Patterson,
Count 21 of the Complaint purports to assert a cause of action for the Alabama tort of outrage, or intentional infliction of emotional distress. To prevail
In Count 14 of the Complaint, plaintiff purports to assert a claim of civil conspiracy against all defendants, theorizing that they “failed and refused to provide Plaintiffs [sic ] with any facts, reports, information, videos, etc in an attempt to avoid litigation” and “failed to conduct an adequate investigation.” (Complaint, ¶ 68.) Plaintiff further alleges that “[a]s a proximate result of the' defendants’ acts and omissions, Decedent was caused to suffer injuries resulting in death.” (Id., ¶ 69.) As an initial matter, this claim is pleaded in a nonsensical manner because defendants’ post-shooting conduct could not have proximately caused Shaw’s injuries resulting in death. Moreover, any civil conspiracy claim predicated on allegations that these defendants (City of Selma, Chief Riley, Officer Williams) failed to conduct an adequate investigation suffers from an insuperable logical defect because the record unequivocally shows that the Alabama Bureau of Investigation (“ABI”) assumed responsibility for investigating the Shaw shooting
2. Stated-Agent Immunity for Officer Williams.
For any state-law claims not addressed on the merits supra (such as the wrongful death, negligence and wantonness claims), and for any state-law claims asserted against Officer Williams that may be otherwise cognizable and supported by evidence in the record, entry of summary judgment in Officer Williams’ favor .remains appropriate pursuant to the doctrine of. state-agent immunity.
An Alabama statute provides that “[e]very peace officer ... shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.” Ala. Code § 6-5-338(a). Acts performed within an officer’s discretionary functions are those “as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances:” Sheth v. Webster,
Because Officer Williams was performing discretionary acts, he is entitled to state-agent immunity unless plaintiff shows “sufficient ‘bad intent’ — willfulness, malice, fraud, bad faith, actions beyond authority, or actions taken under a mistaken interpretation of law.” Grider,
Without question, “[a] State agent acts beyond authority and is therefore not immune when he or she fails to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” Mason,
In sum, the Court concludes that state-agent immunity protects Officer Williams from liability for all state-law claims and causes of action asserted herein. See Davidson v. City of Opelika,
3. Respondeat Superior Liability against the City.
Finally, plaintiff seeks to hold the City of Selma “liable for the negligent, careless, or unskillful acts of its agent officers” under Alabama law. (Doc. 21, at 21.) By statute, Alabama municipalities may be held liable on a theory of respondeat superior for any “injury or wrong ... done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty.” Ala. Code § 11-47-190. The most immediate defect with this line of reasoning is that the Court has already concluded that Officer Williams is entitled to state-agent immunity pursuant to Alabama Code § 6-5-338(a) for the wrongs that plaintiff contends were the product of Officer Williams’ neglect, carelessness or unskillfulness. Because Officer Williams is immune, the City of Selma is likewise immune. See, e.g., Harris,
YI. Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1. Defendants’ Motion to Strike Affidavit of Faya Rose Toure (doc. 23) is granted, and that Affidavit (which is found at Exhibit 7 to docket entry 21) is stricken;
2. Defendants’ Motion for Summary Judgment (doc. 13) is granted;
3. There being no genuine issues of material fact as to any claim or cause of action asserted herein, plaintiffs claims against all defendants are dismissed with prejudice; and
4. A separate Judgment will enter.
DONE and ORDERED this 15th day of March, 2017.
Notes
. The record reflects that Edward Shaw is the brother of the decedent, Ananias Shaw. (E. Shaw Dep, (doc. 13, Exh. 14), at 24.)
. In its original configuration, the Complaint also purported to name fictitious defendants identified as "Officers X and Y and Defendant Z in their individual and official capacities as police officials of the City of Selma, who are otherwise unknown but are those that unlawfully contributed to the death of Ananias Shaw and violated his rights.” (Doc. 1, Exh. A, at 1.) By Order (doc. 9) dated March 2, 2016, Magistrate Judge Milling ordered those references to fictitious defendants stricken on the ground that fictitious party pleading is not generally recognized in federal court. This is a correct application of federal procedure. See, e.g., Richardson v. Johnson,
. To be sure, defendants predicated their Notice of Removal on the civil rights provisions of 28 U.S.C. § 1443. (Doc. 1, ¶ 8.) That section is demonstrably inapplicable here. To remove a civil action under § 1443(1), a petitioner must show (i) "that the right upon which the petitioner relies arises under a federal law providing for specific civil rights stated in terms of racial equality,” and (ii) "that he has been denied or cannot enforce that right in the state courts.” Marcus v. Galvez,
. Although plaintiff submitted more than 300 pages of exhibits in support of his summary judgment memorandum, he failed to comply with the directive in both the Local Rules and the Rule 16(b) Scheduling Order requiring that he furnish the Court with courtesy hard copies of those exhibits to facilitate the summary judgment review process. See Civil L.R. 7(g) ("If a party’s exhibits in support of, or in opposition to, a motion exceed fifty (50) pages in the aggregate, that party must submit a courtesy copy to chambers.”); doc. 9, ¶ 14(c) ("If a party’s exhibits in support of or in opposition to a motion exceed 50 pages in the aggregate, then that party must deliver a courtesy hard copy of those exhibits to the Judge’s chambers by mail or hand delivery.”). Also, the Court observes that plaintiff's exhibits include complete copies of multiple deposition transcripts, in derogation of the requirement that only relevant excerpts be filed. See Civil L.R. 5(a). Notwithstanding plaintiff’s noncompliance with these requirements, and the attendant burden placed on the Court, the undersigned has taken the summary judgment motion under submission as-is in the interest of not delaying its adjudication, despite the current overinclusive form of the exhibits and the missing courtesy copies.
. This conclusion applies with particular force to those aspects of the Toure Affidavit wherein she purports to be a fact witness, such as where Toure states that she had a relationship with the City of Selma Police Department pursuant to which she would be called to assist with violent suspects with mental or emotional problems, but no such call was made in this case despite her availability.’ Thus, plaintiff would have Toure testify that defendants had other available avenues for defusing the Shaw confrontation, yet they declined to pursue them. This kind of testimony (as contrasted with Toure’s mere reporting of her own investigation, presumably in her role as plaintiff’s former co-counsel,' of what other witnesses told her) unquestionably activates disclosure obligations that plaintiff did not satisfy, thereby prejudicing defendants in obvious ways and mandating exclusion pursuant to Rule 37(c)(1),
.The Court is mindful of its obligation under Rule 56 to construe the record, including all evidence and factual inferences, in the light most favorable to the nonmoving party. See Smith v. LePage,
. In Austin’s words, he "had problems with [Shaw] in the past, which we've had to call the police because he would come in and make a scene in the restaurant.” (Id. at 9.)
. Austin's deposition testimony is pellucidly clear that the reason he barred Shaw from entering the restaurant was "because he had that hatchet in his hand.” (Austin Dep., at 6.) Austin explained that he considered Shaw to
. The long-handled, bladed weapon that Shaw was carrying is referred to at various times in the summary judgment record as an "axe” or a “hatchet.” It is depicted in a photograph marked as Defendant’s Exhibit 10. (Doc. 13, Exh. 10.) Officer Williams testified that it was approximately 12 to 18 inches long. (Williams Dep., at 19.) Plaintiff's summary judgment filing repeatedly characterizes the hatchet as "small” and having a "small” blade; however, they identify no testimony to that effect. At any rate, it is abundantly clear from the photograph that the hatchet in question was not a toy and not an implement to be trifled with. It was obviously a deadly weapon, capable of inflicting severe bodily harm or death.
. Facts clearly depicted in a video recording whose authenticity has not been challenged are accepted for summary judgment purposes, even where they conflict with the plaintiff’s narrative. See, e.g., Scott v. Harris,
. The lower-right corner of the video includes a date/time stamp in red numerals; however, for purposes of this narrative, and to demonstrate clearly the total elapsed time in the incident, the referenced times herein relate to the running time of Exhibit 9 as reflected on the video player, rather than the red numerals stamped on the video itself.
.• Officer Boone testified that he intended to attempt to disarm Shaw with his ASP and ■ that he told Officer Williams as much. (Boone Dep., at 38.) According to Officer Boone, Shaw overheard this comment and responded, “Try it and I'll hack you.” {Id, at 39.) Officer Boone did not ultimately attempt to disarm Shaw with his ASP, and explained that he refrained from doing so because "if I would have got in close proximity of him, he could have hacked me.” {Id, at 43.)
. The video remains running for more than . 25 minutes after the shooting takes place. Officer Williams appears dazed and breathing heavily, and is heard to tell several other officers in the immediate aftermath, "He came after me with the axe, man.” Officer Williams testified that he had never lulled anyone before and he had never shot anyone before. (Williams Dep., at 42.)
. Officer Boone testified that the officers instructed Shaw to drop the hatchet "30 plus times” in total. (Boone Dep., at 58.)
. Plaintiff disputes all of these witnesses' testimony that Shaw raised the hatchet at the time of the shooting. The only evidence he cites in support of his position is Exhibit 8, which is an untranscribed video interview that an unidentified Selma Police investigator took of Betty Ford and Kizzy Ford (Betty's daughter-in-law) at 1:45 p,m. on December 6, 2013. Betty and Kizzy Ford were on the porch of the house in front of which the shooting occurred. The Court has watched the entire 18-minute video of the Ford interviews. As an initial matter, the Fords’ testimony contradicts clear video evidence of the incident in multiple significant ways (i.e., the Fords indicated that Shaw did not say anything to the officers other than to leave him alone, that Shaw did not charge or come toward Officer Williams, etc,, when the video recording unmistakably shows otherwise). As discussed supra, plaintiff cannot create a material issue of fact simply by trying to contradict clear video evidence of the incident. More fundamentally, plaintiff offers no explanation for why he believes Exhibit 8 is admissible, or how it might be presented in admissible form at trial. The Fords were not placed under oath at any time before or during the interview: The Fords’ depositions were apparently never taken in this case, Plaintiff does not explain why he is endeavoring to introduce the Fords’ version of events in this manner, rather than via deposition or affidavit. Assuming plaintiff could overcome these hurdles, Betty Ford and Kizzy Ford each stated during their joint interview with an unnamed Selma Police investigator that Shaw did not raise the hatchet at all before Officer Williams fired the fatal shot.
, There is not, and cannot reasonably be, any dispute that Officer Williams was engaged in a discretionary capacity at the time of the shooting. See generally Mercado v. City of Orlando,
. The Court understands, of course, that the video does not depict what Shaw’s right hand was doing at the crucial moment. The Court further understands that Betty and Kizzy Ford gave an unsworn interview to a Selma police investigator in which they both contradicted the clear video evidence in several key respects, and also indicated that Shaw never raised the hatchet. To the extent that the Fords contradict the video, their statements are properly discredited for summary judgment purposes. There are also important threshold admissibility concerns, as discussed supra. Nonetheless, assuming plaintiff could establish the admissibility of the Fords’ un-sworn interview statements and create an issue of fact as to whether Shaw was actually raising the hatchet or not when Officer Williams opened fire, such a factual dispute would not be material for summary judgment purposes. The law does not, after all, "require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.” Singletary v. Vargas,
. See also Singletary,
. They also fail for the additional reason that in evaluating whether Officer Williams used excessive force in shooting Shaw in the chest, the relevant time frame is that immediately proceeding the shooting. Whether the officers should have elected either (i) to leave Shaw in the abandoned laundromat or (ii) to leave him to walk alone toward Church's Chicken with his hatchet in a raving, hostile state and cross their fingers that he did not hurt anybody is not relevant to the reasonableness analysis for Officer Williams' decision to fire at Shaw at the precise moment he did.
. In framing his argument in this manner, plaintiff relies on a selective reading of cherry-picked excerpts from the Deposition of Don Jones. (Doc. 21, at 12.) Yet the same witness testified that, at the time of the shooting, Shaw "raised [the hatchet] high enough to, you know, just hold it back like this inside his hands.... Well, he just had it halfway like this in his hand like he was fixing to throw it or something,” (D. Jones Dep., at 9.) Plaintiff inexplicably omits this testimony — which obviously supports the officer’s use of deadly force — from, his factual narrative. As for this witness's statements that Shaw "did not walk towards the officer” and that Officer Shaw "just was walking up on him, and then he dropped him” (id. at 8, 11), plaintiff cannot rely on them to create a genuine issue of material fact on summary judgment because Jones' testimony in these respects is directly contradicted by the video evidence. Furthermore, in his Response, plaintiff mistakenly attributes certain statements culled from the deposition of Don Jones (who was not a law enforcement officer) to his brother, Detective Jones (who was one of the three Selma police officers involved in the incident). (Doc, 21, at 5 (bottom paragraph refers repeatedly to Exhibit 5, which is Detective Jones' deposition, when the quotations in question were actually found in Don Jones' deposition, which is Exhibit 4),)
. As an aside, plaintiff cites page 61 of Detective Jones’ deposition for the proposition that Detective Jones "knew the decedent wouldn’t hurt him.” (Doc. 21, at 16.) No such sentiment can be found on the cited page. Moreover, when plaintiff’s counsel asked De
. To sharpen the point, Shaw did not lunge or charge toward Officer Boone or Detective Jones, much less any of the other lay witnesses on the scene or other Selma police officials who were deposed in this case. Thus, testimony from those witnesses as to whether they felt threatened by Shaw as a general or abstract proposition is unhelpful. Equally importantly, plaintiff's argument overlooks clear, unrebutted testimony that this episode was between Shaw and Officer Williams, not the other two. In this regard, Detective Jones testified as follows about the moments before the shooting: "[A]t that specific time, Mr. Shaw turned. When he made that turn — and listen to me closely because I’m serious. When he made the turn, he became directed in Williams’ path. And him and Williams made, it looked like, eye-to-eye contact, like me and Mr. Boone was not even there. We didn’t even exist. It was like just him and him.... I’m struck because Mr. Shaw makes a movement toward Williams. He goes directly at Williams.” (Jones Dep., at 47.) In light of this chilling testimony and the clarity of the video recording on this point, whether some other officer might or might not have believed Shaw to be gravely dangerous in that moment "sheds little light on whether [Officer Williams’] conduct was objectively reasonable.” Penley,
. Even if the record supported a finding of a constitutional violation, which it does not, Officer Williams would remain entitled to qualified immunity as to plaintiff’s excessive force claims. Of course, “even if the defen
. See also Jackson v. Sauls,
. In addition to comporting with Terry- principles, the officers' actions in this regard were fully consistent with, and expressly authorized by, Alabama law. See Ala. Code § 15-5-30 (police officer "may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions”) (emphasis-added); Schultz v. State,
. As a separate legal ground for reaching this same conclusion, the Court ' observes binding authority holding ' that no Fourth Amendment seizure occurs at all prior to a police shooting in analogous factual situations. In Menuel v. City of Atlanta,
. Even if the summary judgment record supported a reasonable inference of confinement (which it does not), there is absolutely no evidence that Officer Williams or any other defendant acted with deliberate indifference in continuing to confine/restrain Shaw "after it was or should have been known that [he] was entitled to release.” Campbell v. Johnson,
. Specifically, plaintiff citgs "Exhibit 3, p. 49, 11. 4-11” to support the proposition that the Selma Police Department offered inadequate training in this area. (Doc. 21, at 17.) The cited excerpt has nothing to do with training in dealing with mentally ill suspects, but rather involves an admission by Officer King that under department policy, an arrest warrant would be needed if a subject "just came in with weapon ... but they didn’t threaten to use the weapon.” (Doc. 21-3, at 49.) Of course, the Court is under no independent obligation to rummage through the hundreds of pages of exhibits submitted by plaintiff in search of some excerpt that might bolster his position on this point. See, e.g., Rule 56(c)(3), Fed.R.Civ.P. (on summaiy judgment, "[t]he court need consider only the cited materials”); Longmire v. City of Mobile, Alabama,
. Officer Williams’ testimony is clear that, at the time of this incident, he "didn’t know” that Shaw was "emotionally imbalanced,” to use plaintiff’s counsel's term. (Williams Dep., at 46.) As Officer Williams put it, "I just knew
. "Our analysis is not altered by the fact that evidence of previous incidents is not required to establish city policy if the need to train and supervise in a particular area is 'so obvious’ that liability attaches for a single incident.” Weiland, 192 F.3d at 1329, The record lacks any evidence supporting an inference that .the .need for .further specialized training (above and beyond that already provided) by the Selma Police Department in dealing with mentally ill citizens was “so obvious” that t]ie failure to provide such additional training in that area amounts to deliberate indifference that might support a § 1983 claim against the City of Selma. In the absence of such evidence, plaintiff must establish deliberate indifference via. a pattern of similar violations. This he has not done.
. To the extent that plaintiff is' endeavoring to assert federal claims against Chief Riley, they fail for the same reasons. After all, “[s]u-pervisory liability under section 1983 may be shown by either the supervisor’s personal participation in the acts that comprise the constitutional violation or the existence of a causal connection linking the supervisor’s actions with the violation,” Smith v. LePage,
, To be sure, in his scattershot Complaint, plaintiff also alleged state-law claims against the City of Selma for negligent hiring, training, and supervision, and for violation of the Alabama Constitution; as well as state-law claims against Officer Williams for wrongful death, negligence and wantonness. Even if plaintiff has not abandoned those claims (and it appears he has), defendants have moved for summary judgment on all of those claims, and summary judgment is properly entered in defendants' favor as to each of them for the reasons argued by defendants! Under Alabama law, a critical element of a claim of negligent hiring, training and super- , vision is "proof of the employer’s actual or constructive awareness of the employee’s incompetency.” James v. Nationstar Mortg., LLC,
. Courts applying Alabama law have displayed unwillingness to extend the scope of the tort of outrage to encompass the use of force by law enforcement officers, even when the officers’ use of force was not justified and was otherwise egregious. See, e.g., Sheth v. Webster,
. Indeed, the first sentence of the ABI's summary report of its investigation reads as follows: ‘‘This investigation was ordered by the Alabama Bureau of Investigation Chief, Major NEIL TEW, upon a written request from WILLIAM RILEY, Selma Police Chief on 12/16/2013.” (Doc. 13, Exh, 1, at 2.) Plaintiff cannot rationally fault defendants for an investigation performed exclusively by the Alabama Bureau of Investigation, which is not and has never been a party to this litigation. ■ In his summary judgment brief, plaintiff objects that "[t]he ABI .:. conducted only a 30 minute interview of Williams” and "failed to inquire into.whether Williams followed his training and department policy.” (Doc. 21, at .18.) Plaintiff identifies no facts or law under which the named defendants in this case could be responsible for alleged defects in an investigation performed solely by an indepen- ■ dent, non-party entity.
. The bulk of plaintiff's argument on this point relates to Officer Williams’ conduct before the shooting took place. As an initial matter, plaintiff identifies the incorrect time period for purposes of the immunity analysis. Plaintiff is not suing Officer Williams under Alabama law for answering a dispatch call, appearing at the laundromat or walking down the street with Shaw, He is suing Officer Williams under Alabama law for firing the shot that killed Shaw. None of the events preceding that shooting proximately caused Shaw's death, or are otherwise germane to any state-law claims that have not abated with Shaw's death. The immunity analysis must therefore be focused on that conduct, not what happened before. Even if plaintiff