                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0058n.06

                                          No. 16-5537

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

CARL BOHANNON,                                          )                           FILED
                                                        )                      Jan 24, 2017
       Plaintiff-Appellant,                             )
                                                                           DEBORAH S. HUNT, Clerk
                                                        )
v.                                                      )
                                                        )
TOWN OF MONTEREY, TENNESSEE; BILL                       )
RANDOLPH, in his individual capacity and in his         )       ON APPEAL FROM THE
official capacity as Chief of Police of the Monterey    )       UNITED STATES DISTRICT
Police Department; DONATHAN DURHAM, in his              )       COURT FOR THE MIDDLE
individual capacity and his official capacity as an     )       DISTRICT OF TENNESSEE
employee of the Monterey Police Department;             )
JACOB CROSS, a citizen; AMANDA MATHNEY, a               )
citizen; JASON DAVIDSON,                                )
                                                        )
       Defendants-Appellees.                            )
                                                        )



BEFORE:        COLE, Chief Judge; BOGGS and SILER, Circuit Judges.

       BOGGS, Circuit Judge. This case presents us with a clash of narratives: Carl Bohannon

states that he was sitting on the ground after an unprovoked assault and was shot in the back with

a Taser by Officer Donathan Durham. Officer Durham asserts that Bohannon was in a daze,

staggering around and presenting a danger to himself and others. At summary judgment we must

take the record in the light most favorable to the nonmoving party and thus Bohannon’s account

controls. Because the district court combined the two accounts to make one (certainly plausible)

account rather than evaluating the question of qualified immunity based upon Bohannon’s

account, we must reverse the grant of summary judgment and remand for further proceedings.
No. 16-5537
Bohannon v. Town of Monterey
                                                     I

        Shortly after dusk on the evening of September 26, 2013, Carl Bohannon was sitting in

his car in the Monterey Dairy Queen parking lot. Having recently finished a round of shooting at

the gun range and looking forward to a date, Bohannon grabbed a beer from the eighteen-pack he

had purchased minutes before and began drinking. The accounts of the facts begin to diverge

here.

        According to Bohannon’s deposition testimony, he had just completed a phone call when,

suddenly, a car sideswiped his vehicle and broke his mirror. The other car stopped and the

driver, Amanda Matheney, emerged with two passengers, Jacob Cross and Jason Davidson.

As Bohannon stepped out of his car, Davidson “came flying out . . . swinging” without

provocation. The two male passengers tackled Bohannon and left him on the ground, and the

trio returned to their car and pulled into the drive-through to order food. Bohannon followed

them and told them he would not let them leave. Matheney, Cross, and Davidson exited their

car, and Davidson began punching Bohannon again, knocking him to the ground. Bleeding,

Bohannon grabbed Davidson, who pummeled Bohannon, who was lying on his back. Bohannon

did not return the blows and assumed the group was on drugs. Abruptly, Matheney, Cross, and

Davidson moved away from Bohannon and sat down on the curb. Bohannon began to sit up,

when his leg buckled and he felt as though his heart had given out. Although he did not realize

it, he had just been shot in the back with a Taser by an arriving officer, Donathan Durham,

without warning. After asking the officer why he had been tased, Bohannon was taken in

handcuffs to the hospital, but was later released.

        According to Durham’s deposition testimony, he found Bohannon lying on his back two

feet from the street, “appear[ing] to be knocked out, unconscious.” Bohannon stood up and then



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Bohannon v. Town of Monterey
stumbled about, falling several times, including once in the roadway. Durham asked Bohannon

to sit down, which he did, but then when he attempted to stand again, Durham told Bohannon “if

you don’t stay down, I’m going to be forced to tase you.” As Bohannon rose, Durham shot him

in the back with a Taser to prevent him from moving out into the roadway.

       Cross said in a sworn statement that he was walking by the Dairy Queen when his friend

Davidson pulled into the parking lot and called him over. Bohannon came over to the car and

began cursing at Davidson and started to fight with him. Davidson gained the upper hand and

pinned Bohannon to the ground, at which point Bohannon yielded. Davidson drove to the drive-

through, and Bohannon returned, striking Davidson’s car with his fists. Davidson got out of the

car and knocked out Bohannon. Davidson was then told by arriving officers to sit down.

Bohannon attempted to stand despite officers’ commands not to do so, and staggered around

until being tased.

       Bohannon brought suit in Tennessee state court against Chief of Police Bill Randolph of

the Monterey Police Department, Officer Durham, the Town of Monterey, Davidson, Cross, and

Matheney for violations of the Fourth, Fifth, and Fourteenth Amendments of the United States

Constitution and assault, battery, and negligent infliction of emotional distress under Tennessee

law, and against Chief Randolph for failure to train his officers properly. Defendants removed

the case to federal court under the authority of 28 U.S.C. §§ 1331 and 1343. There, Plaintiff

voluntarily requested to dismiss his Fifth Amendment and negligent-infliction-of-emotional-

distress claims.

       After a motion for summary judgment from Durham, which was joined by the Town of

Monterey and Randolph, the district court found that Durham was entitled to qualified immunity,

and as a result that the claims against the Town of Monterey and Randolph could not be



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Bohannon v. Town of Monterey
sustained. Without any further federal claims, the court remanded the remaining state-law

claims to the Putnam County Circuit Court.

                                                II

                                                A

          We review a district court’s grant of summary judgment de novo. Darrah v. City of Oak

Park, 255 F.3d 301, 305 (6th Cir. 2001). Summary judgment is proper where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In determining whether a genuine dispute exists, we assume the

truth of the nonmoving party’s evidence and draw all inferences in the light most favorable to

that party. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Should sufficient evidence

exist for a trier of fact to find for the nonmoving party, summary judgment is inappropriate.

See id.

          Claims under 42 U.S.C. § 1983 require an alleged deprivation of a federal right by

someone acting under color of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640

(1980). Government officials performing discretionary functions are protected by qualified

immunity where “their actions could reasonably have been thought consistent with the rights

they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987); see also

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). An officer violates the Fourth Amendment when

he uses objectively unreasonable force in light of the facts and circumstances. Graham v.

Connor, 490 U.S. 386, 397 (1989).        The reasonableness of force is determined “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Id. at 396.




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No. 16-5537
Bohannon v. Town of Monterey
                                                  B

       A threshold matter that has significant impact on the resolution of this case is whose

account to use in determining whether Bohannon’s rights were violated. The district court

rooted its analysis in the story as presented by Durham and Cross, rationalizing its use of those

facts by stating that “Plaintiff simply does not recall most of what went on in the parking lot.”

But in doing so, the court appears to have assumed that all the facts alleged by both parties

occurred, and then reasoned that the events alleged by Defendants must have occurred while

Bohannon was in shock. Yet Bohannon clearly alleges that no significant time passed between

when the trio moved away from him and sat down and when he was struck by the Taser. Given

that, at this stage, “this court views the factual evidence and draws all reasonable inferences in

favor of the nonmoving party,” we must therefore take the facts as provided by Bohannon, at

least where not blatantly contradicted by the record. McLean v. 988011 Ont., Ltd., 224 F.3d 797,

800 (6th Cir. 2000); see Scott v. Harris, 550 U.S. 372, 380 (2007).

       Admittedly, some comments from Bohannon’s testimony and responses to Defendant’s

proffered statement of undisputed facts, if taken literally, seem to indicate that Bohannon did not

recall the incident. First, he repeatedly stated, “It is denied that at no time during the altercations

did Mr. Bohannon feel that he was knocked out.” Of course a denial that something never

occurred is an admission that it occurred at some point, but the citations provided by Bohannon

to these statements belie that conclusion. He cites a medical report and a statement in his

deposition where he describes the second altercation and the arrival of the police without gaps in

his account. Second, Bohannon frequently stated that he “does not recall any instructions given

to him by Officer Durham.” But this statement can be understood in two ways: either the events

happened and Bohannon cannot recall them because he was unconscious or dazed, or Bohannon



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Bohannon v. Town of Monterey
cannot recall them because they did not happen.              Because all of these statements are

accompanied with denials that the alleged facts occurred, rather than explained as occurrences

that Bohannon is unable to admit or deny per Federal Rule of Civil Procedure 36(a)(4), they can

be best understood as asserting that Bohannon does not recall the statements because they did not

happen. Finally, with regard to his statements that he “was really in shock,” and that “it wasn’t

registering, what was going on,” Bohannon immediately made clear that he meant that he did not

understand why the three defendants suddenly attacked him or later sat down in unison, not that

his memory was fogged. Indeed, he then proceeded to describe what happened next without

mention of a gap in time or his account.

        Where, as here, statements and facts in the record can be reasonably interpreted in a

manner consistent with a nonmoving party’s claim, they should be. Accordingly, Durham’s

testimony was not “uncontradicted,” but rather was in direct contradiction with Bohannon’s

testimony that he was shot after attempting to rise from the ground for the first time after Cross

and Davidson had moved away. This case differs from Wysong v. City of Heath, 260 F. App’x

848 (6th Cir. 2008), where the plaintiff admitted to not remembering any of the events or the

timespan in question and could not testify as to what happened, id. at 851. Here, Bohannon’s

testimony provides his own version of events, which we may use in determining whether

Durham’s conduct was objectively unreasonable.             Where that testimony creates a factual

question regarding the violation of constitutional rights, it is enough to defeat summary

judgment.    See id. at 858 (“[A] single difference in the record would lead to a different

result[:] . . . [if] Wysong could raise a fact question through his own testimony . . . .”).

        Using only Bohannon’s description of the facts, it is manifest that the force used by

Durham was unreasonable. According to this account, Bohannon was sitting up after being



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Bohannon v. Town of Monterey
beaten by attackers and then was tased in the back by Durham. “[T]he right to be free from

physical force when one is not resisting the police is a clearly established right,” and tasing

someone in the back without warning while he sits on the ground or attempts to stand, absent any

threat to the safety of the individual or others, would violate this clearly established right. Id. at

856; see Bennett v. Krakowski, 671 F.3d 553, 562 (6th Cir. 2011). It bears repeating that this

version of events is disputed by Durham and Cross, but that dispute only confirms that there

exists a genuine issue of material fact with regard to whether Bohannon’s rights were violated.

                                                 III

       It is entirely possible that Durham’s account of what happened on September 26 is

wholly accurate, and Bohannon was in such shock that he did not recall stumbling around after

the second altercation.    But possibility alone is insufficient to overcome a party’s sworn

statements to the contrary. Therefore, there is a genuine issue of material fact that may be best

resolved before a fact-finder. As a result, we REVERSE the district court’s grant of summary

judgment as to the excessive-force claim and its remand order and REMAND to the district court

for proceedings consistent with our opinion.




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