Franklin v. Messmer

111 F. App'x 386

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 14, 2004
• Docket: No. 03-5184
• Status: Published

Opinions

PER CURIAM.

Plaintiff Dalburn Franklin appeals the jury verdict in favor of Defendant Officer Arthur Messmer on his excessive force claim and the district court’s dismissal of his malicious prosecution claim. Franklin further appeals the grant of summary judgment to Defendant Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”), in which it disposed of his failure-to-supervise claim. We AFFIRM.

BACKGROUND

In August 1998, Franklin and Cheryl Brdar had a late dinner at a Nashville restaurant. After exiting the establishment, Franklin attempted to throw an empty cigarette package into a trash can outside. Officer Messmer, who was standing outside the restaurant, saw that Franklin missed the trash can and asked him to pick up the wrapper. Instead, Brdar picked up the wrapper, at which time Messmer insisted that Franklin pick it up and throw it away. Franklin, who replied that Brdar had already picked it up, continued to walk away. Messmer grabbed Franklin by his shirt; when Franklin yanked his arm away, his shirt ripped off. Messmer then shot pepper spray into Franklin’s eyes; however, some of the spray ricocheted into Messmer’s eyes. Having seen that Messmer was incapacitated, other police officers who were congregated around the restaurant arrested Franklin. Franklin attested that the other officers tackled him, beat him, and held his face to the ground while Messmer again shot pepper spray into his eyes. Franklin was charged with littering, disorderly conduct, resisting arrest, and assault. A grand jury later refused to indict Franklin and issued a “No True Bill.”

Franklin brought suit pursuant to 42 U.S.C. § 1983, alleging that (1) Metro failed to supervise its officers and maintained a policy of tolerating excessive force by its officers; and (2) Messmer administered excessive force during the arrest. While Metro was granted summary judgment, Messmer was not and the matter proceeded to a jury trial. The jury returned a verdict in Messmer’s favor.

DISCUSSION

Franklin first argues that the district court erred in excluding evidence of Messmer’s prior conduct. Franklin wished to introduce evidence, such as a disciplinary complaint, that Messmer had engaged in excessive force in the past, including his use of pepper spray. See Fed.R.Evid. 404(b). We review this evidentiary decision for an abuse of discretion. See United States v. Hilliard, 11 F.3d 618, 619 (6th Cir.1993).

There was no abuse of discretion, as the district court excluded Franklin’s proffered evidence because it was neither probative nor relevant. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”) (citations omitted). As Franklin wanted to enter Messmer’s prior conduct to demonstrate his underlying intent in arrests, i.e., his propensity for excessive force, the evidence was properly excluded. See Bowman v. Corr. Corp. of Am., 350 F.3d 537, 549 (6th Cir.2003) (although no error in admitting evidence, court recognized that Fed.R.Evid. 404 precludes admission of prior bad acts if used to establish propensity). Similarly, the district court did not abuse its discretion in refusing to grant Franklin a new trial since the jury properly resolved his excessive force claim in Messmer’s favor. See Holmes v. City of Massillon, 78 F.3d 1041, 1045 (6th Cir.1996) (no “definite and firm conviction” that the district court “committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors[ ]”) (citation omitted).

Franklin next argues that the district court erroneously dismissed his state law malicious prosecution claim against Messmer prior to trial. Specifically, the district court ruled that Franklin was es-topped from denying that probable cause existed for his arrest. See Fed.R.Civ.P. 12(b)(6). We review the district court’s dismissal of this claim die novo. See Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 727 (6th Cir.2003).

The district court properly dismissed Franklin’s malicious prosecution claim. Even though Franklin was not indicted, during his preliminary hearing in state court a general sessions judge found probable cause to bind his case over to the grand jury. Since Franklin “had a full and fair opportunity to litigate whether probable cause existed to maintain [the] ... charge[s] against him, he is barred from relitigating that issue in this § 1983 action.” See Smith v. Thornburg, 136 F.3d 1070, 1077 (6th Cir.1998) (footnote omitted) (identical facts and result as case sub judice).

Franklin lastly argues that the district court erred in granting Metro summary judgment on his failure-to-supervise claim, insisting that Metro failed to properly supervise Messmer due to his propensity for excessive force. We review the district court’s grant of summary judgment de novo. Lautermilch v. Findlay City Schs., 314 F.3d 271, 274 (6th Cir.2003). “Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Summary judgment was appropriate. Messmer completed his police academy training, which included the use of force and, specifically, the use of pepper spray. Metro employs an “Early Warning System” to identify problem police officers who have a propensity to create situations where excessive force is required. Messmer never triggered this “Early Warning System” and there were no complaints against him for excessive force, including his use of pepper spray. Accordingly, Metro engaged in no deliberate indifference. See Berry v. City of Detroit, 25 F.3d 1342, 1346 (6th Cir.1994).

AFFIRMED.