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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,
v.
JOHN WILCHER, in his official capacity as Chatham County Sheriff; CORIZON HEALTH, INC.; GREGORY BROWN; FREDERICK BURKE; ABRAM BURNS; MARK CAPERS; MAXINE EVANS; ANDREW EVANS-MARTINEZ; PAUL FOLSOME; DEBRA JOHNSON; JASON KENNY; ERIC VINSON, Defendants.

          ORDER

          R. STAN BAKER UNITED STATES DISTRICT JUDGE

         Before the Court are Defendants Lieutenant Debra Johnson and Andreux Evans-Martinez's Motions for Summary Judgment as to all claims alleged against them by the Plaintiffs. (Docs. 191, 192.) 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 Defendants Johnson and Martinez, who were corrections officers 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 Johnson and Martinez, Plaintiffs assert claims for violations of Ajibade's constitutional rights pursuant to 42 U.S.C. § 1983, assault and battery, and wrongful death. (Id.) Defendants Johnson and Martinez filed Motions for Summary Judgment, claiming that the assault and battery and constitutional violation claims against them lack the necessary evidentiary support and/or are barred by principles of immunity and that the wrongful death claim against them fails as a matter of law. (Docs. 191, 192). Plaintiffs filed Responses in opposition, (docs. 226, 233), and Defendants Johnson and Martinez filed Replies, (docs. 249, 256). For the following reasons, the Court GRANTS Defendants Johnson and Martinez's Motions for Summary Judgment. (Docs. 191, 192.)

         BACKGROUND

         I. Factual Background

         The following facts relevant to the disposition of Defendants Johnson and Martinez's Motions are undisputed.

         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. 226-2, pp. 1-3.) Ajibade was initially placed in a holding cell where he remained for several hours. (Doc. 226-2, pp. 6-8.) 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. at pp. 7-8.) 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.)[1] 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.[2] (Doc. 233-2, p. 13-15; 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.)

         Defendant 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 through 11:37:15 PM.) She then walked back over to the group and placed the Taser onto Ajibade's lower body and told 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, Defendant Johnson stood back up and removed the Taser from Ajibade's skin. (Doc. 181-12 at p. 176; CM136PreBooking#41 at 11:37:42 PM.) It is undisputed that Defendant Johnson did not actually tase (or drive-stun) Ajibade. (Doc. 233-2, p. 17.)

         Defendant Martinez, who was working in a different area of the CCDC but had been instructed by a superior to respond to the call for back-up assistance, arrived at the booking area at 11:37:17 p.m., just as Defendant Johnson was approaching the huddled group with the Taser. (CM136PreBooking#41at 11:37:17 PM; doc. 181-16 (Martinez Depo.), p. 34:13-24; doc. 226-2, p. 19.) Defendant Martinez paced around the group and then stood on the periphery of the group. (CM136PreBooking#41 at 11:37:17 through 11:37:39 PM.) An additional six or seven officers were also in the general vicinity at this time. (CM136PreBooking#41 at 11:37:17 PM.) Martinez heard Johnson tell Ajibade that if he continued to resist, he would be tased. (Doc. 181-16, p. 35:2-3.)

         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. (Doc. 226-2 at p. 19.) A group of officers then carried Ajibade away from the booking area. (CM136PreBooking#41 at 11:39:17 through 11:39:34 PM.) Neither Johnson nor Martinez assisted in carrying Ajibade, and Martinez never made any physical contact with him. (Id. at 11:39:17 through 11:39:34 PM; doc. 226-2 at p. 19.) Rather, Martinez walked behind the group that was carrying Ajibade out of the area. (CM136PreBooking#41 at 11:37:17 through 11:37:39 PM; doc. 181-16, p. 50:9-14.) Johnson went elsewhere to check on one of the officers who had been injured during the initial struggle with Ajibade. (Doc. 233-2, pp. 17-18.) According to his testimony, Defendant Martinez understood his role at this time as being on “stand-by, ” awaiting any instructions from Defendant Johnson. (Doc. 181-16, p. 48:11-21.)

         It is undisputed that, instead of placing Ajibade in the nearby detox cell as instructed by Defendant Johnson, the officers took Ajibade and the restraining chair to a different holding cell. (Doc. 233-2, p. 18.) Defendant Martinez did not participate in the decision to place Ajibade in a different cell and he did not know that, unlike some other cells in the CCDC, the chosen cell did not have a camera positioned to film anything inside the cell.[3] (Doc. 181-16, pp. 39:11-16, 40:19-25, 41:1.) While the other officers were carrying Ajibade to the cell, Corporal Jason Kenny arrived on the scene. (Doc. 233-2, p. 18.)

         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, 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 CM117FemaleHolding#2.)

         Corporal Kenny requested a Taser, and another officer obtained it from Defendant Johnson. (Doc. 181-12, 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 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 Kenny'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 Ajibade was secured in the restraint chair, Nurse Brown went inside the cell to check him. (CM117FemaleHolding#2 at 11:46:59 through 11:47:58 PM; Doc. 181-12, pp. 194-206.) One or more officers were expected to have been routinely checking on Ajibade, in compliance with CCDC policy, after Nurse Brown left. (Doc. 181-12, p. 238.) At 1:35 a.m., approximately an hour and forty-five minutes after he was secured in the chair, Ajibade was found unresponsive and was pronounced dead shortly afterwards. (Doc. 226-2, pp. 24-25.)

         A. Defendant Johnson's Knowledge and Involvement

          According to the video footage, Defendant Johnson arrived in the vicinity of the holding cell over one minute after Ajibade and the restraint chair were taken into the cell. (See CM117FemaleHolding#2 at 11:41:10 PM.) She did not enter the cell at this time, though she did look in for roughly five seconds. (Id. at 11:41:10 through 11:41:15 PM.) Defendant Johnson testified that, when she looked in, she saw Corporal Kenny holding the Taser and noticed that the Taser's light was on, but Corporal Kenny was talking to Ajibade, “telling him to calm down.” (Doc. 181-12, pp. 138-39.) She then walked away from the doorway and attempted to locate a spit mask in the area adjacent to the cell. (CM117FemaleHolding#2 at 11:41:16 through 11:42:06 PM.) After a spit mask was located and sent in to the cell, Defendant Johnson looked over the heads of a few officers standing in front of her in the doorway of the cell for roughly twenty-five seconds. (Id. at 11:42:07 through 11:42:32 PM.) She heard Corporal Kenny “giving [A]ibade] commands to calm down.” (Doc. 181-12, p 140.) Next, Defendant Johnson looked at an injury one officer had suffered, and, at 11:42:41 p.m., walked away from the vicinity of the cell. (CM117FemaleHolding#2 at 11:42:32 through 11:42:41 PM.) She was gone from the area for the next four and a half minutes. (Id. at 11:42:42 through 11:47:03 PM.)

         According to her testimony, Defendant Johnson was not aware that Corporal Kenny had used the Taser to drive-stun Ajibade until after Ajibade died. (Doc. 181-12, pp. 251-52.) Plaintiffs have not presented any evidence calling this testimony into dispute. In response to Defendant Johnson's assertion that she was not in the vicinity at the time of Corporal Kenny's drive-stuns, Plaintiffs deny the statement and state: “Johnson approached the . . . cell to assess the situation at 11:41:10. There is a Taser time stamp at 11:43:18, according to [an] internal affairs report.” (Doc. 233-2, p. 21 (record citations omitted).) The video footage, however, clearly establishes that, although she was in the vicinity of the cell at 11:41:10 p.m., Defendant Johnson had left the vicinity by 11:43:18 p.m. (See CM117FemaleHolding#2 at 11:43:18 PM.) Plaintiffs do not direct the Court to any other Taser time stamps (for any of the other drive stuns) that they claim occurred at a time that Defendant Johnson was in the vicinity, nor do they offer any other direct evidence that they claim proves she was aware of the drive stunning at the time it was occurring.[4]

         At 11:47:04 p.m., Defendant Johnson returned to the vicinity of the cell, accompanied by Nurse Brown, whom she had asked to check Ajibade as he was finally fully-restrained in the chair. (Id. at 11:47:04 PM; Doc. 181-12, p. 153.) Both Johnson and Brown entered the cell, and Corporal Kenny remained inside. (CM117FemaleHolding#2 at 11:47:04 PM; doc. 181-12, p. 154.) Nurse Brown had been present when another officer informed Johnson that Ajibade had been tased during the initial struggle in the booking area. (Doc. 181-12, pp. 201-02.) However, Johnson does not recall anyone telling Nurse Brown (or Johnson, for that matter) that Ajibade was tased multiple times while being placed in the restraint chair. (Id. at p. 200.) While Nurse Brown was performing his check, Johnson conversed with Corporal Kenny and she heard Ajibade moaning, in her opinion, “like he was angry” and in a way that indicated to her that “definitely . . . he was coherent.” (Id. at p. 205.) Her testimony is that, because she was busy speaking to Corporal Kenny, she only recalls Nurse Brown saying he was checking Ajibade's legs and hands and watching him actually check Ajibade's hands. (Id. at pp. 197-98.) She denies observing any blood on Ajibade at this time. (Id.) Johnson and Nurse Brown were in the cell for just under a minute. (CM117FemaleHolding#2 at 11:47:06 through 11:47:57 PM.)

         Thereafter, Defendant Johnson left the scene to attend to her other duties as watch commander that night and was under the impression that another officer was routinely checking on Ajibade, pursuant to CCDC policy. (Doc. 181-12, p. 238-40.) Plaintiffs claim that, shortly after officers left the area of his cell, Ajibade screamed for help and yelled “I can't breathe.” (Doc. 233-2, at p. 26.) However, Plaintiffs do not point to any evidence that Johnson heard or should have heard these calls for help. At some point after midnight, Johnson asked Corporal Evans whether Ajibade was okay, and Evans responded that he was. (Id. at pp. 22-23.) At 1:35 a.m., Ajibade was found unresponsive and was pronounced dead shortly afterwards. (Id. at pp. 23, 26.)

         B. Defendant Martinez's Knowledge and Involvement

          It is undisputed that Defendant Martinez did not directly assist with securing Ajibade into the chair and never actually went inside the cell. (Doc. 226-2, p. 21; doc. 181-16, p. 58:16-17.) Defendant Martinez never spoke to Ajibade. (Doc. 181-16, p. 45:6-10.) The closest Defendant Martinez came to the inside of the cell was when he helped hold the door open as the restraining chair was wheeled in behind Ajibade. (CM117FemaleHolding#2 at 11:40:00 through 11:40:16 PM.) After that, he alternated between standing behind multiple other officers outside of the doorway and walking around to locate items that officers inside the cell requested. (See, e.g., Id. at 11:41:00 through 11:41:34 PM; doc. 181-16, pp. 56:6-11, 19-24, 61:11-14.) Indeed, Defendant Martinez left the doorway and/or the general area entirely on several occasions for appreciable time periods. (See CM117 Female Holding #2 at 11:41:00 through 11:41:34, 11:43:01 through 11:44:05, 11:44:37 through 11:44:56 PM, and 11:45:35 through 11:47:27 PM). Further, Defendant Martinez testified that, even when he was near the doorway, he could “not really” see into the cell through all the officers. (Doc. 181-16, p. 75:3-10.)

         At some point while he was in the vicinity of the cell, Defendant Martinez heard a single discharge of a Taser inside the cell. (Doc. 181-16, p. 59:7-18.) He testified that he could not see whether Ajibade had been restrained to the restraint chair at the time the Taser was engaged. (Id. at pp. 23-24.) In fact, Defendant Martinez never testified that he actually saw the Taser being used. (See, e.g., Id. at p. 42.) However, Defendant Martinez did testify that, aside from hearing the Taser discharge on one occasion, he was not aware of any additional discharges. (Id. at p. 60:7-10.) Martinez admits that he did not say anything to any of the other officers about whether it was appropriate to use a Taser on Ajibade. (Id. at p. 60:11-13.)

         Defendant Martinez was not in the immediate vicinity of the cell when Nurse Brown entered, but he was in the vicinity when Nurse Brown exited the cell. (CM117FemaleHolding#2 at 11:46:59 through 11:47:58 PM.) After Nurse Brown emerged from the cell, Defendant Martinez returned to the wing of the CCDC where he had originally been assigned duties for the night. (See Doc. 181-16, p. 71:2-16.) He was not involved with Ajibade after that time. (Id.at pp. 65:7-10, 66:1-4, 71:2-23.)

         While Plaintiffs assert that Defendant Martinez was aware that Ajibade was in physical pain, that Ajibade had been moaning since being placed in the restraint chair, and that Martinez heard these moans, (doc. 226-1, p. 18), they fail to point to any evidence to support those assertions. Additionally, Plaintiffs claim that, shortly after officers left the area of his cell, Ajibade screamed “Help me” and “I can't breathe.” (Id.) However, the Court is unaware of any evidence that Martinez, who went back to his post in another wing of the CCDC, heard or should have heard such calls for help.

         C. 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. Defendants do 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, [5]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.) 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. 226-2, p. 21; doc. 233-2, p. 20), 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; right?
A. That is correct.
Q. He didn't kick anybody; correct?
A. I don't know what he did. I was on his left shoulder, so I don't know what his legs were doing.
Q. Well, you didn't see him kick anybody, did you?
A. That's correct.
Q. Okay. So when you say “resisting, ” you mean he didn't-he was stiffening his body so he wouldn't be placed in the restraint chair; correct?
A. Yes. And he was kind of moving, kind of see-sawing, I suppose.
Q. Okay. So moving his shoulders? A. Uh-huh.

(Doc. 219-2, pp. 53-54 (emphasis supplied).)

         Plaintiffs also cite to the deposition testimony of Officer Capers to support their assertion that Ajibade was “at least partially restrained when Kenny applied the Taser to [A]ibade's] groin area-four separate times.” (Doc. 229-2, p. 27; doc. 233-2, pp. 25-26 (both citing doc. 181-5 (Capers Depo.), pp. 103-04).) In the cited pages of his deposition, Officer Capers specifically testified as follows:

Q. And tell me what you remember about what happened when you went into the cell.
A. They put him in a restraint chair. They sat him in a restraint chair and he was kicking. At one point Richardson or somebody asked for Flexi Cuffs. We bring the Flexi Cuffs in. I grabbed the Flexi Cuffs and I secured-because I was down by his feet. I secured the Flexi Cuffs, the chain on the leg irons to the designated area on the restraint chair.
Q. So his legs would have been attached to the restraint chair, correct?
A. Yes.
Q. Basically his leg irons are attached to the restraint chair, right?
A. The chain.
Q. The chain in it, right?
A. Yes.
Q. So he's got limited mobility, ...

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