Eric McMillian v. Wake County Sheriff Department

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cv-00342-FL Copies to all parties and the district court/agency. [998454993] [10-1576]

Eric McMillian v. Wake County Sheriff Department

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1576 ERIC M. MCMILLIAN, Plaintiff - Appellant, v. WAKE COUNTY SHERIFF'S DEPARTMENT; S. HARRIS; S. BALDWIN; E. BARRERA, Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cv-00342-FL) Submitted: September 17, 2010 Decided: October 28, 2010

Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and instructions by unpublished per curiam opinion. remanded with

Eric M. McMillian, Appellant Pro Se. John Albert Maxfield, COUNTY ATTORNEY'S OFFICE FOR THE COUNTY OF WAKE, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: This appeal stems from the district court's order

granting Wake County Correctional Officers Harris, Baldwin, and Barrera basis (collectively, of qualified "Defendants") and summary dismissing judgment on the Eric

immunity,

Plaintiff

McMillian's civil rights action, filed pursuant to 42 U.S.C. § 1983 (2006). 1 Taken in the light most favorable to the injured

party, see Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, __ U.S. __, 129 S. Ct. 808 (2009), the record establishes the following facts. In July 2008, McMillian was arrested and transported to the Wake County Jail. After being processed without After

incident, McMillian was placed in a single-person cell.

he was unsuccessful in his attempts to utilize the pay phone, McMillian became agitated. and rested in his cell. However, he eventually calmed down

Although McMillian also named the Wake County Sheriff's Department as a defendant, the district court dismissed the complaint as to this defendant and further denied McMillian's request to amend his complaint to add the proper legal entity. McMillian does not contest either of these rulings on appeal. Nor does McMillian challenge the district court's disposition of his Eighth Amendment deliberate indifference claim. Accordingly, we conclude McMillian has forfeited appellate review of those aspects of the district court's order. See 4th Cir. R. 34(b) (limiting review to issues raised in the informal brief on appeal). 2

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Defendant

Harris

later

informed

McMillian

that

he

would be transferred to a different cell.

To effectuate this

transfer, Harris handcuffed McMillian and began to remove him from the cell. At this point, according to McMillian,

Defendants placed him in a choke hold, forced him to the ground, and repeatedly struck him in the head. McMillian specifically

alleged that, while he was handcuffed, Baldwin kneed him in the right eye, causing his eye to bleed. Although the record

reveals some inconsistencies with regard to the particulars of the assault, McMillian has consistently maintained that the

assaultive contact occurred after he was handcuffed. McMillian filed the instant civil action several days later, alleging Defendants employed excessive force during the cell transfer. Defendants denied the allegations and claimed Shortly thereafter,

they were entitled to qualified immunity.

McMillian filed the first of several discovery requests, asking the district recordings Defendants instead court to order Defendants from the to produce in any video

and did

photographs not the deny the

night of such

question. but

existence defer

evidence,

asked

court

to

all

discovery

pending

resolution of the qualified immunity issue. The magistrate judge directed that discovery would be limited, initially, to that evidence relevant to Defendants'

assertion of qualified immunity, and found that the materials 3

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McMillian sought were not relevant to that issue. court upheld this ruling.

The district

Defendants filed a motion for summary judgment, which was supported by affidavits from jail officials. According to

these affidavits, McMillian was belligerent and disruptive from the time he arrived at the jail. McMillian Harris' complying attacked officers began decision with Harris, pried to to rip folders him to When removed from his cell, from in turn to of the the walls, triggering Instead of

place order

handcuffs. for

their

cuffing,

McMillian other and

knocking

him off

floor.

Several

McMillian

Harris,

handcuffed

him,

proceeded to move him to a new cell. McMillian was not kicked or punched.

The officers averred McMillian, in response,

denied these assertions, and reiterated that the video-recording from the jail would a corroborate sworn his version in of events. he again

McMillian

submitted

declaration

which

averred that the assault occurred after he was handcuffed. The entitled to magistrate qualified judge concluded because the Defendants officers' were use of

immunity

force was justified by the need to restore order.

In reaching

this conclusion, however, the magistrate judge did not address McMillian's contention that the officers assaulted him after he had been handcuffed. The magistrate judge further denied

McMillian's request for the appointment of counsel. 4

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In his objections to the magistrate judge's report, McMillian again emphasized that he had in fact complied with Harris' request that he turn around to be handcuffed; that he placed his hands behind his back, as ordered; and that he was assaulted by the officers after he was handcuffed. McMillian

argued the use of force, after he was immobilized and subdued, was not employed in a good faith effort to restore order.

McMillian again reiterated his request for the production of the video surveillance footage. The district court adopted the magistrate judge's

recommendation and found the officers were entitled to qualified immunity. aggression handcuffing The district court found McMillian's agitation and during him, his and transfer that the to level a of new cell justified to

force

employed

accomplish that objective was appropriate. McMillian subsequently filed another motion to compel discovery and a motion, pursuant to Fed. R. Civ. P. 59(e), to alter or amend the court's judgment. both motions. On appeal, McMillian reiterates that Defendants' The district court denied

actions constituted excessive force in light of the fact that he was already handcuffed. McMillian further asserts error in the

district court's refusal to authorize the requested discovery.

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Finally, McMillian challenges the district court's denial of his motion for the appointment of counsel.

I. This court reviews a district court's order granting summary judgment de novo, drawing all reasonable inferences in the light most favorable to the nonmoving party. v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010). See Robinson

Summary judgment

may be granted only when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." or Fed. R. Civ. P. 56(c)(2). do not However, nor

"[c]onclusory does a mere

speculative of

allegations in

suffice, of his

scintilla

evidence

support

case."

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks omitted). Summary judgment will

be granted unless a reasonable jury could return a verdict for the nonmoving party on the evidence presented. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[Q]ualified immunity protects government officials See Anderson v.

from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional Pearson

rights of which a reasonable person would have known."

v. Callahan, ___ U.S. ___, ___, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 6 The

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Supreme

Court

has

outlined

a

two-prong

test

for

determining Id. at

whether an officer is entitled to qualified immunity. 815-16.

First, a court should decide whether the facts alleged

by the plaintiff demonstrate a violation of a constitutional right. at Id. If so, the court must determine "whether the right was clearly established at the time of [the]

issue

defendant's alleged misconduct."

Id. at 816.

Courts are no

longer required to rigidly adhere to this sequence, however, and may exercise their discretion in determining which prong to

address first.

See id. at 818-22. force by claims the of Due arrestees Process and Clause pretrial of the

Excessive detainees are

governed

Fourteenth Amendment.

See Orem v. Rephann, 523 F.3d 442, 446

(4th Cir. 2008); Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir. 1997) (en banc), abrogated on other grounds by Wilkins v. Gaddy, __ U.S. __, __, 130 S. Ct. 1175, 1178-79 (2010) (per curiam). In analyzing such a claim, "[t]he proper inquiry is whether the force applied was in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Cir. 1998) Taylor v. McDuffie, 155 F.3d 479, 483 (4th quotation marks omitted), abrogated on

(internal

other grounds by Wilkins, 130 S. Ct. at 1178-79.

This analysis

requires consideration of whether the given situation required

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the use of force and "the relationship between the need and the amount of force used." Orem, 523 F.3d at 446.

McMillian has consistently asserted that, after he was handcuffed and subdued, Defendants knocked him to the ground, repeatedly struck him, and kneed him in the head, causing his eye to bleed and injury to his neck. In granting summary

judgment to Defendants, the district court accepted Defendants' assertions that they handcuffed McMillian due to his disruptive conduct, and that their use of force was limited to

accomplishing that objective. the that district the court squarely use

Neither the magistrate judge nor addressed of force McMillian's occurred allegation he was

complained-of

after

handcuffed. Accepting true, as we must McMillian's at this allegations and evidence see Jones as v.

procedural

juncture,

Buchanan, 325 F.3d 520, 524 n.1 (4th Cir. 2003), we conclude the district court erred in finding there was no issue of material fact as to the need for the use of force and the extent of force Defendants used. Crediting McMillian's version of the events,

we cannot say, as a matter of law, that knocking down, punching, and kicking an arrestee while he is in handcuffs are actions taken in good faith to restore order. George's (vacating Cnty., order Md., 355 F.3d 751, See Young v. Prince (4th Cir. 2004)

756-58 police

granting

defendant 8

officer

summary

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judgment on plaintiff's Fourth Amendment excessive force claim, in which plaintiff alleged officer assaulted him after he was placed in handcuffs); Jones, 325 F.3d at 529 (noting factual dispute over whether plaintiff was handcuffed and that plaintiff might be unable to prove that he was in fact handcuffed, but suggesting that whether plaintiff was handcuffed was highly

relevant to assessment of the reasonableness of the officer's conduct); see also Orem, 523 F.3d at 446-47 (upholding denial of qualified immunity defense asserted by police officer who used a taser on a suspect after she was handcuffed and restrained). Adjudication of this issue is complicated by the fact that the district court denied McMillian's repeated requests for discovery of any videotapes and photographs from the night in question. We review the denial of a request for discovery for Conner v. United States, 434 F.3d 676,

an abuse of discretion. 680 (4th Cir. 2006).

"An abuse of discretion may be found where Nicholas 2004)

denial of discovery has caused substantial prejudice." v. Wyndham Int'l, Inc., 373 F.3d 537, 542 (4th

Cir.

(internal quotation marks omitted). McMillian has steadfastly maintained that the jail's surveillance cameras captured the events at issue. The court

denied McMillian's request for discovery of any such evidence, finding qualified it was not relevant We to Defendants' In assertion whether of a

immunity.

disagree. 9

evaluating

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police officer is entitled to qualified immunity, the district court must assess whether there was a constitutional violation. See Pearson, 129 S. Ct. at 815. Certainly, evidence that would

have confirmed (or dispelled) McMillian's allegations pertaining to the events that form the subject of this lawsuit is highly probative of that issue. 2 See Ingle ex rel. Estate of Ingle v.

Yelton, 439 F.3d 191, 196 (4th Cir. 2006) ("Because there was a sufficient basis to believe such videos existed, and because this evidence represented [plaintiff's] principal opportunity to contradict the assertion that the district court found

dispositive, the court should have allowed discovery as to the videos."). discovery Because requests we conclude the denial of McMillian's we hold the

substantially

prejudiced

him,

district court abused its discretion in denying these requests. For these reasons, we conclude the district court's grant of summary judgment on the basis of qualified immunity was

premature, particularly in light of the erroneous evidentiary ruling. Accordingly, we vacate the district court's order

granting Defendants summary judgment on the basis of qualified immunity.

It bears repeating existence of such evidence.

2

that

Defendants

did

not

deny

the

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II. McMillian also argues the magistrate judge erred in denying his motion for appointment of counsel. While a § 1983

litigant has no right to appointed counsel, see Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968), a district court's refusal to appoint counsel may be an abuse of discretion when "a pro se litigant has a colorable claim but lacks the capacity to present it." Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) that 28 U.S.C. § 1915 (2006) does not authorize

(holding

compulsory appointment of counsel), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989). In a

civil case, orders denying appointment of counsel are reviewed for an abuse of discretion. 962, 966 (4th Cir. 1987). As raises a discussed above, McMillian's the in complaint arguably that See Miller v. Simmons, 814 F.2d

colorable ably

claim;

however, claim

record the

reflects

McMillian

pursued

his

district

court.

Accordingly, we conclude the district court did not abuse its discretion in denying McMillian's request for the appointment of counsel, and affirm that aspect of the district court's order.

III. For the foregoing reasons, we vacate the district

court's order granting Defendants summary judgment and remand 11

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this case to the district court for further proceedings.

We

direct the district court to order Defendants to produce any and all relevant videotape and photographic evidence from the night in question. denial of Further, although we affirm the district court's motion for appointment of counsel, we

McMillian's

conclude it would be prudent for McMillian to be represented by counsel for the remainder of this litigation. Accordingly, upon

remand, the district court should take the necessary steps to appoint counsel for McMillian. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS

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