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Ajibade v. Wilcher

United States District Court, S.D. Georgia, Savannah Division

March 28, 2019

SOLOMAN OLUDAMISI AJIBADE, as natural parent of Mathew Ajibade; ADENIKE HANNAH AJIBADE, as natural parent of Mathew Ajibade; THE ESTATE OF MATHEW AJIBADE; CHRIS OLADAPO, as executor, Plaintiffs,



         Before the Court is Defendant Maxine Evans's Motion for Summary Judgment as to all claims alleged against her by the Plaintiffs. (Doc. 183.) This case arises from the January 2015 death of Mathew Ajibade while in the Chatham County Sheriff's custody at the Chatham County Detention Center (“CCDC”). (Doc. 21.) Ajibade's parents and his estate filed this suit against Defendant Evans, who was a corrections officer at the CCDC, as well as the Sheriff, various other corrections officers, the company supplying health services at the CCDC at the time of Ajibade's death, and a nurse on duty at the time of Ajibade's death. (Id.) Against Evans, Plaintiffs assert claims for assault and battery, violations of constitutional rights pursuant to 42 U.S.C. §1983, and wrongful death. (Id.) Defendant Evans filed a Motion for Summary Judgment, claiming that the assault and battery and constitutional violation claims against her lack the necessary evidentiary support and/or are barred by qualified and official immunity and that the wrongful death claim fails as a matter of law. (Doc. 183.) Plaintiffs filed a Response in opposition, (doc. 229). For the following reasons, the Court GRANTS in part Defendant Evans's Motion for Summary Judgment. (Doc. 183.) As explained below, the Court reserves ruling on the Motion for Summary Judgment as to Plaintiffs' Section 1983 claim for deliberate indifference to a serious medical need and their wrongful death claim until the parties provide supplemental briefing by the deadlines set forth in this Order.


         I. Failure to Comply with Applicable Rules

         Local Rule 56.1 provides that, “[u]pon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, in addition to the brief, there shall be annexed to the motion a separate, short, and concise statement of the material facts as to which it is contended there exists no genuine dispute to be tried as well as any conclusions of law thereof.” S.D. Ga. L.R. 56.1. The rule also requires that “[e]ach statement of material fact shall be supported by a citation to the record.” Id. Here, Defendant Evans failed to file a separate Statement of Material Facts as required by Rule 56.1, though she did include a Statement of Facts section within the brief in support of her Motion for Summary Judgment. (See Doc. 183.) To their credit, Plaintiffs separated Evans's Statement of Facts section into a series of numbered paragraphs and provided a response to each one, thereby ensuring they did not run afoul of Local Rule 56.1's provision that “[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by a statement served by the opposing party.” (See Doc. 229-2.)

         The far more concerning deficiency, however, is the quality of both parties' factual assertions and record citations (or lack thereof) in their briefs. Several of Evans's co-Defendants (who are not represented by the same attorney as Evans) have filed separate summary judgment motions. Evans's brief is, in many respects, almost identical to the briefs filed by co-Defendants Debra Johnson and Andreux Evans-Martinez (hereinafter, “Martinez”) in support of their summary judgment motions. Generally speaking, counsel for co-defendants in a case are free to coordinate their filings and arguments that they will make to the Court. It certainly aids judicial efficiency when co-defendants in a case agree upon and present statements of fact and arguments (based on those facts) that are consistent (and are therefore subject to consistent responses from plaintiff's counsel). The problem here, however, is that counsel for Evans did a slapdash job of converting the brief that had apparently been drafted for Martinez's Motion for Summary Judgment so that it would apply effectively to Defendant Evans. The “Statement of Facts” section of Evans's brief contains just three sentences that relate directly to Evans: (1) “As all of this was happening, other officers, including Maxine Evans, were arriving on the scene.” (Doc. 183-1, p. 7 (no record citations provided).) (2) “Maxine Evans, who was assisting the injured Rowland, played no role in carrying Ajibade to his cell.” (Id. (no record citations provided).) (3) “Evans, who never entered the cell, and [sic] was not present outside it the [sic] time of placement.” (Id. at p. 8 (no record citations provided).)[1] While the brief does feature a smattering of additional factual assertions concerning Evans in its “Argument and Citation of Authority” section, those assertions either fail to include any record citations or-most embarrassingly for Evans's counsel-still feature the citations to Martinez's deposition testimony regarding his own conduct. (Compare, e.g., doc. 183-1 (Evans Brief), p. 12 (“It is undisputed that Maxine Evans did not encounter Ajibade until after he stopped fighting Officers Richardson, Capers, Rowland and Vinson and after Ajibade was being restrained with wrist and ankle restraints. (Ex.__, Martinez depo., p. 35; ex. __, CM 136 at 11:37:17).”) with doc. 192-1 (Martinez Brief), p. 13 (“It is undisputed that Martinez did not encounter Ajibade until after he stopped fighting Officers Richardson, Capers, Rowland and Vinson and after Ajibade was being restrained with wrist and ankle restraints. (Doc. 181-16, Martinez depo., p. 35; doc. 181-25, CM 136 at 11:37:17).”).)[2]

         Plaintiffs' briefing, however, is no better. While they do provide record citations in their own “Statement of Undisputed Material Facts” document, (doc. 229-2), their brief features several material factual assertions that do not include a record cite. (See, e.g., doc. 229-1, p. 5 (“In the meantime, deputies were charged with checking Mathew's physical condition every 15 minutes.”) (no record citations provided).) More troubling are inconsistent positions taken within Plaintiff's filings. For example, Plaintiffs admit Evans's averment that she “never entered the cell, and was not present outside it [sic] the time of [A]ibade's] placement” (presumably, into the chair), (doc. 229-2, p. 23), and they never point to any evidence that Evans was otherwise nearby or in the vicinity of the cell. Nonetheless, Plaintiffs proceed, at multiple points of their “Argument and Citation to Authority” section, to make arguments that require such evidence. For instance, they argue that a reasonable officer in Evans's position “could find that Mathew was screaming because he was being tased, ” yet they cite to no evidence that Evans (whom they have admitted was not in the cell or outside of it) did hear or should have heard Ajibade screaming, (doc. 229-1, p. 15).[3] Perhaps most egregiously, later in their brief, Plaintiffs boldly assert:

Evans was aware that Mathew was in physical pain and had been moaning since being placed in the restraint chair. Evans was present in the holding cell area for a portion of time after the use of the taser, heard him moaning, and made no attempt to check on him.

(Id. at p. 19.) Plaintiffs fail to provide a single record citation to support these critical factual allegations, part of which seem to be in conflict with their admission that Evans was not in the cell or outside of it at some point relative to when Ajibade was placed in the chair. Similarly, on the next page of their brief, Plaintiffs assert that “Evans was aware that Mathew had been tased four times, ” (id. at p. 20), yet they cite no record evidence to support such a claim.[4]

         In light of the bevy of glaring deficiencies and self-contradictory allegations and arguments contained in both Evans's initial Brief and Plaintiffs' Response, the Court declines at this time to rule on Evans's Motion for Summary Judgment as to Plaintiffs' Section 1983 claim against her for deliberate indifference to a serious medical need or Plaintiffs' wrongful death claim (as its viability depends on the success of the deliberate indifference claim). The Court ORDERS Defendant Evans to file a supplemental brief by April 26, 2019. In the supplemental brief, Defendant Evans shall provide record citations to support all material factual allegations she offers to support her request for summary judgment on Count 2 of Plaintiffs' Amended Complaint (“Deliberate Indifference to Serious Physical and Mental Health Needs”). Within fourteen (14) days after Evans's supplemental brief is filed, Plaintiffs shall file a response thereto, which likewise shall include record citations to support all material factual allegations or disputes as to any of Evans's factual allegations. The Court will not consider any legal arguments (in either brief) that are not based upon specified facts supported by a citation to the record.[5] Defendant Evans must file any reply within fourteen (14) days of Plaintiffs' response brief.

         Plaintiffs have conceded in their Response that Defendant Evans is entitled to summary judgment on their assault and battery claim (Count 6) against her. (Doc. 229-1, p. 21.) Accordingly, the Court GRANTS Defendant Evans's Motion for Summary Judgment as to that claim. The Court proceeds to consider the Motion for Summary Judgment as it pertains to the Section 1983 claim for use of excessive force, as this claim is amendable to summary judgment without the need for the Court to consider the deficient and self-contradictory factual allegations and arguments discussed above.

         II. Relevant Facts to Which There Is No. Dispute

         The following facts relevant to the disposition of Defendant Evans's Motion for Summary Judgment as to Section 1983 Use of Excessive Force claim against her are not in dispute.[6]

         On the evening of January 1, 2015, officers with the Savannah-Chatham Metropolitan Police Department arrested Mathew Ajibade for the battery of his girlfriend and transported him to the CCDC. (Doc. 181-19 (Owens Depo.), pp. 9-12, 32; doc. 229-2, pp. 2-4.) Ajibade was initially placed in a holding cell where he remained for several hours. (Doc. 229-2, pp. 7-8.) At or around 11:28 p.m., a CCDC officer retrieved Ajibade from the holding cell and took him into a common area to commence the booking process. (Id.) During that process, a physical struggle between Ajibade and four officers ensued, and one officer called for back-up assistance. (CM136PreBooking#41 at 11:28:36 through 11:34:02 PM.)[7] During the struggle, one officer is believed to have drive-stunned Ajibade with a Taser before Ajibade was able to take the Taser from her, at which point he held the Taser up at the officers.[8] (Doc. 229-2, pp. 16-17; doc. 181-12 (Johnson Depo.), p. 266.) One officer was injured during the struggle and ultimately required medical attention. (Doc. 181-12, p. 122.) Over the next few minutes, multiple officers arrived on scene in response to the call for back-up assistance. (CM136PreBooking#41 at 11:34:02 through 11:37:17 PM.)

         Lieutenant Debra Johnson, who was the watch commander that evening, arrived in the booking area around 11:36:45 PM. (Id. at 11:36:45 PM.) At this point, Ajibade was lying face down on the floor with approximately seven officers holding and/or hovering over him. (Id. at 11:36:55 PM.) After walking over to observe the huddled mass, Johnson retrieved a nearby Taser and (as shown from the video footage) removed something from it. (Id. at 11:36:56 PM through 11:37:15 PM.) She then walked back over to the group and placed the Taser onto Ajibade's lower body and announced to Ajibade that he needed to “calm down and let them put the restraints” on him or he would be drive-stunned. (Id. at 11:37:20 through 11:37:33 PM; doc. 181-12 (Johnson Depo.), pp. 175-76.) In response, Ajibade calmed down and, once hand and leg restraints were secured onto him, Lieutenant Johnson stood back up and removed the Taser from Ajibade's skin. (Doc. 181-12, p. 176; CM136PreBooking#41 at 11:37:42 PM.) It is undisputed that Johnson did not actually tase (or drive-stun) Ajibade. (Doc. 229-2, p. 19.)

         Defendant Evans arrived in the booking area at some point while the officers were working to restrain Ajibade's hands and feet. (Id. at pp. 19-20.) After she arrived, Evans assisted with the injured officer. (Id. at p. 20.) Once Ajibade's hands and feet were restrained, Johnson instructed the officers to take Ajibade to a nearby detox cell and place him in a restraint chair for his safety and the safety of others. (Id.) A group of officers then carried Ajibade away from the booking area. (CM136PreBooking#41 at 11:39:17 through 11:39:34 PM.) It is undisputed that Defendant Evans played no role in carrying Ajibade to a cell. (Doc. 229-2, p. 20.)

         It is undisputed that, instead of placing Ajibade in the nearby detox cell, the officers took Ajibade and the restraining chair to a different holding cell. (Id.) While the officers were carrying Ajibade to the cell, Corporal Jason Kenny arrived on the scene. (Id. at p. 21.)

         When the restraining chair was placed inside the cell, it was positioned so that it faced the back wall, with the back of the chair facing toward the door. (Doc. 181-16 (Martinez Depo.), pp. 55:23-25, 56:1-5.) Thus, when Ajibade was placed into the chair, his back was to the doorway and his face was not visible to those looking in from outside the cell door. (Id.) Multiple officers, including Corporal Kenny, went into the cell and participated in the process of placing and securing Ajibade into the restraining chair. (See generally CM117 Female Holding #2.) Pursuant to Plaintiffs' Statement of Undisputed Facts, Plaintiffs admit that Defendant Evans “never entered the cell, and was not present outside it [sic] the time of placement.” (Doc. 229-2, p. 23.)

         Corporal Kenny requested a Taser, and another officer obtained it from Johnson. (Doc. 181-12 (Johnson Depo.), p. 136.) According to his own testimony, Corporal Kenny discharged the Taser once while pointing it at the ground; this was done as both a means of testing it and as a “show of force” in an effort to gain compliance from Ajibade. (Doc. 181-13 (Kenny Depo.), p. 145:12-19). Because Ajibade continued to resist after the test engagement, Corporal Kenny then drive-stunned Ajibade, though there is no evidence regarding how much time passed between the test engagement and the initial drive-stun. (Id. at pp. 145:12-25, 147:13-23.) According to Corporal Kenny, Ajibade screamed after the first drive-stun and Corporal Kenny waited “for a second” to see if Ajibade thereafter complied with the commands to sit down. (Id. at p. 149:4- 9.) When Ajibade continued “trying to come back up, ” Corporal Kenny told him to stop resisting and then drive-stunned him a second time. (Id. at pp. 150:20-25, 151:1.) Corporal Kenny testified that he drive-stunned Ajibade a total of four times, that three of the drive stuns lasted fewer than five seconds and one lasted five full seconds, and that he waited ten seconds or less between each drive stun. (Id. at pp. 148:6-18, 153:5-16, 155:5-13, 177:7-14.) He also testified that Ajibade was screaming during this process. (Id. at p. 152:24-25.) After the fourth drive-stun, Ajibade complied with the officer's command to sit down and was then secured into the chair. (Id. at pp. 197:1-5, 198:12-18.)

         At some point, a spit mask was placed onto Ajibade's face. (Id. at pp. 19, 215.) Once he was secured in the restraint chair, Lieutenant Johnson and Nurse Gregory Brown went inside the cell for about 51 seconds. (CM117FemaleHolding#2 at 11:46:59 through 11:47:58 PM; Doc. 181-12 (Johnson Depo.), pp. 194-206.) An officer turned the restraint chair around so that Ajibade faced the door. (Doc. 181-12 (Johnson Depo.), p. 154.) After they exited the cell, the door to the cell was closed. (CM117FemaleHolding#2 at 11:47:58 through 11:48:30 PM.) At 1:35 a.m., approximately an hour and forty-five minutes after Ajibade was secured in the chair, he was found unresponsive, and he was pronounced dead shortly afterwards. (Doc. 229-2, p. 24.)

         III. Issues Regarding Restraint and Resistance

         Plaintiffs focus much of their attention on proving, via record citations, that Ajibade's hands and legs were cuffed and shackled (respectively) when the officers were attempting to secure him in the restraint chair. Defendant Evans does not appear to dispute this fact. Rather, the relevant dispute, as discussed in greater detail in later sections of this Order, is whether Ajibade, despite being cuffed and in leg shackles, was resisting the officers as they attempted to secure him in the chair. Many of Plaintiffs' citations provide direct evidence that Ajibade was resisting officers during this point in time.

         For instance, Plaintiffs frequently cite to Officer Ambrose's Examination Under Oath, [9]which does discuss how Ajibade's hands were cuffed behind his back and his legs were shackled. (Doc. 219-1, pp. 15, 18.) Notably, however, the cited portions of the Examination also indicate that Ajibade was actively resisting officers' efforts to secure him in the chair. Though he was initially outside of the cell, Ambrose states he heard a man in the cell yelling, “I don't want to be here. Let me go.” (Id. at pp. 15-16.) Then Ambrose heard someone else in the cell say, “[C]alm down, calm down. Quit kicking at me.” (Id. at p. 15.) When he looked inside the cell, Ambrose saw officers placing Ajibade-whose hands were cuffed behind his back- into the chair, and he observed Ajibade-whom he described as “seem[ing] really upset”- “screaming and yelling” and “thrashing about.” (Id. at pp. 16-17.) At some point, Ambrose was told to come into the cell, at which point he observed that Ajibade “kept kicking” and “trying to squirm.” (Id. at p. 19.) He explained that Ajibade's “feet were cuffed, but they weren't . . . strapped down to the chair yet.” (Id.) Thereafter, Ajibade “was screaming and yelling” and “kicking his feet.” (Id. at p. 21.) Another officer came in and “tied [A]ibade's] ankles to the chair” but “[h]e kept kicking.” (Id.) He heard Corporal Kenny say, “stop kicking, stop kicking at me, ” and then saw Kenny grab the Taser and turn the light on. (Id. at p. 21.) Ambrose then heard Kenny say, once again, “stop kicking towards me, ” at which point Ambrose (who was standing behind Ajibade) observed Ajibade “flailing a little bit” and “moving his feet around and screaming.” (Id. at pp. 21-22.) Ambrose then observed Corporal Kenny take the Taser, place it on Ajibade's right thigh, and drive-stun Ajibade. (Id. at p. 22.) According to Ambrose, Ajibade started screaming and Ambrose heard Kenny say, “Stop kicking, you're going to get it again.” (Id.) Ambrose did not testify about any additional uses of the Taser and stated that he then “slowly backed out of the room” and heard people calling for the nurse. (Id.) Later in the Examination Ambrose explained that, when Corporal Kenny discharged the Taser the first time, Ajibade was “kicking his legs, ” even with his “leg chains” on. (Id. at pp. 24-25.) Ambrose also made clear that he only witnessed Ajibade being drive-stunned one time. (Id. at p. 32.)

         Plaintiffs also cite to one page of Officer David Cody's deposition transcript to support the assertion that Ajibade “never struck out at anyone while he was being placed in the restraint chair, ” (doc. 229-2, p. 22), but Cody's testimony actually indicates that he was not able to see Ajibade's legs and was unsure of what Ajibade may have been doing:

A. . . . And at that point the restraint chair came in and we tried to set him down.
Q. Okay. And then what happened?
A. He was resisting.
Q. Okay. When you say “he was resisting, ” what do you mean?
A. He was actively trying to not be placed into the restraint chair.
Q. You mean he was stiffening his body?
A. Yes, sir.
Q. Okay. He was-at no time did he strike anybody because he has his hands behind his back; correct?
A. That's correct.
Q. Okay. And his legs are shackled; ...

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