CARTER v. MARION et al
Filing
53
ORDER granting in part and denying in part 29 Motion for Summary Judgment; adopting Report and Recommendations re 44 Report and Recommendations; granting in part and denying in part 22 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on 9/16/2013. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
RAYMOND CARTER JR.,
Plaintiff,
Civil Action No. 7:12-CV-76 (HL)
v.
JOHN MARION, BOBBY GRUNDY,
TIMOTHY GLASSNER, and ROBERT
ENGLEMANN1,
Defendants.
ORDER
This case is before the Court on a Recommendation from United States
Magistrate Judge Thomas Q. Langstaff (Doc. 44) in which he recommends that
Defendant Grundy’s Motion for Summary Judgment (Doc. 22) and Defendants
Marion, Glassner, and Englemann’s Motion for Summary Judgment (Doc. 29) be
granted in part and denied in part. Defendants have filed an objection to the
Recommendation.2
The
Court
has
made
a
de
novo
review
of
the
Recommendation and finds as follows.
1
The Clerk of Court is directed to update the docket to reflect the proper name of
Defendant Glassner.
2
While Plaintiff was given an extension of time until September 6, 2013 to file
objections to the Recommendation, he did not file any.
The facts viewed in the light most favorable to Plaintiff, taken mainly from
his deposition, are as follows. The incident in question occurred on November 9,
2011. Plaintiff was working underneath a mobile home owned by Andrea Wilkes
Corbett in Lake Park, Georgia. (Deposition of Raymond Carter Jr., p. 33). The
mobile home had partial skirting around it that ran from the bottom of the mobile
home to the ground. (Id.) There were several openings in the skirting on each
side of the mobile home where the skirting was damaged or missing. (Id.) There
was also another opening in the skirting referred to by Plaintiff as a scuttle hole.
The scuttle hole was located at the rear of Ms. Corbett’s home and was between
six and ten feet long. (Id. at 38-39).
Plaintiff started working under Ms. Corbett’s home around 10:00 a.m. on
November 9. (Id. at 46). Around lunch time, the defendant police officers arrived
at Ms. Corbett’s home to execute an arrest warrant for Plaintiff for the
manufacture and sale of methamphetamine. (Id. at 47; Affidavit of John Marion,
¶¶ 5-6). Plaintiff was still under the mobile home. (Id.) Plaintiff did not know it was
law enforcement officers who had arrived, as all “I seen was a dog and some
legs, but, I mean, I had no idea or no reason to think that it would be police
officers.” (Id. at 48).
A person standing in Ms. Corbett’s yard could not see through the skirting
and see underneath her home. (Id. at 38). One would have to look through one of
the open or damaged areas to see underneath. (Id.) Plaintiff was first discovered
under the mobile home by Defendant Englemann. (Id. at 51, 56). Defendant
2
Englemann shouted to the other officers and the officers all walked over to the
scuttle hole. (Id. at 51-52). Plaintiff asked Defendant Englemann why the officers
were there. (Id. at 52). Plaintiff was about 20 feet away from the opening. (Id. at
51). Plaintiff could see Defendant Englemann kneeling down at the scuttle hole
and Defendant Glassner’s canine partner, which was still on a leash at this time.
(Id. at 60-61). Defendant Marion and his leashed canine partner were standing
about 40 feet back from the opening. (Id. at 62-63).
Plaintiff immediately began crawling toward the opening on his hands and
knees. (Id. at 57-58). He stopped about six feet away from the scuttle hole
because of the dogs. (Id. at 72). At this time both dogs were at the opening. (Id.
at 66). Plaintiff asked Defendant Englemann to hold the dogs, both of which were
still leashed. (Id. at 64-65, 70).
After
Plaintiff
stopped
crawling
towards
the
opening,
Defendant
Englemann told Defendant Glassner to release his dog, and Defendant Glassner
did so. (Id. at 66, 69). Defendant Glassner’s dog went underneath the mobile
home and bit Plaintiff on the neck and side. (Id. at 67). Plaintiff was face down
under the mobile home and used his right arm to try and protect himself from
Defendant Glassner’s dog. (Id. at 67-68). Plaintiff was able to continue crawling
out from under the mobile home even though Defendant Glassner’s dog was
biting him. (Id. at 72, 74). When Plaintiff was partially out from under the mobile
home, Defendant Glassner’s dog bit Plaintiff on the head, arm, and shoulder. (Id.
at 69, 75). At that point, Plaintiff grabbed Defendant Glassner’s dog’s snout and
3
held onto it so the dog could not bite anymore. (Id. at 75). Plaintiff testified that he
and Defendant Glassner’s dog “wrestled [their] way out from under the house”
(Id. at 54), and that he was “fighting this dog.” (Id. at 75).
Once Plaintiff was out from under the mobile home, Defendant Grundy
pulled Plaintiff’s hands off Defendant Glassner’s dog and handcuffed Plaintiff. (Id.
at 76). Plaintiff thinks Defendant Glassner’s dog bit him once after he was put in
handcuffs. (Id. at 77). Plaintiff was still face down and was “beg[ging] them for
help to get this dog off of me.” (Id. at 77). Defendant Marion’s canine was then
released, but he did not attack or bite Plaintiff. He merely nipped at Plaintiff’s hair
for 30 seconds to one minute. (Id. at 54.)
Plaintiff contends that Defendants Englemann, Glassner, and Marion’s
release and use of the canines to affect his arrest constituted excessive force in
violation of his Fourth Amendment rights. Plaintiff further contends that
Defendant Grundy violated his constitutional rights by failing to intervene in the
release and use of the canines. All Defendants filed motions for summary
judgment. Defendants argued that the force used in arresting Plaintiff was
objectively reasonable and that they are entitled to qualified immunity. Defendant
Grundy also argued that he could not be held liable for the release of Defendant
Glassner’s canine because he was not in a position to intervene.
In his Recommendation, the Magistrate Judge divided his analysis into
three parts: (1) the release of Defendant Glassner’s canine; (2) the continued
attack of Plaintiff by Defendant Glassner’s canine after Plaintiff was out from
4
underneath the mobile home; and (3) the release of Defendant Marion’s canine.
The Magistrate Judge recommended that summary judgment be granted in
Defendants’ favor with respect to the release of Defendant Glassner’s canine and
with respect to the release of Defendant Marion’s canine. He recommended that
summary judgment be denied with respect to the continued attack of Defendant
Glassner’s canine, finding that based on the circumstances, the continued use of
force was unconstitutional. The Magistrate Judge further found that the
Defendants were not entitled to qualified immunity as to the continued attack.
Defendants have made two arguments in their objection with respect to the
continued attack of Defendant Glassner’s canine.3 They first argue that there was
no Fourth Amendment violation. They contend that even if there is a factual
dispute as to whether Plaintiff was bitten after he was handcuffed, they are still
entitled to summary judgment. Defendants’ second argument is that even if there
was a Fourth Amendment violation with respect to the continued attack of
3
While Defendants Englemann and Marion argue in the objection that they are entitled
to summary judgment because they were not in a position to intervene, the Court will
not consider this argument because Defendants Englemann and Marion did not raise it
before the Magistrate Judge. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.
2009) (“A district court has discretion to decline to consider a party’s argument when
that argument was not first presented to the magistrate judge.”)
The Court further rejects Defendant Grundy’s objection that he is entitled to summary
judgment because he was not in a position to intervene. Contrary to how Defendant
Grundy characterizes the testimony, the Court does not read Plaintiff’s deposition as
acknowledging that Defendant Grundy was not in a position to intervene with respect to
Defendant Glassner’s dog. There is an issue of material fact as to whether Defendant
Grundy had the ability to intervene and stop the continued attack but failed to do so.
5
Defendant Glassner’s dog, they are entitled to qualified immunity. The Court
rejects both arguments.
The Court first finds that Plaintiff has identified a constitutional violation in
connection with the continued attack by Defendant Glassner’s canine. An
excessive force claim in connection with an arrest is analyzed “under the Fourth
Amendment’s objective reasonableness standard.” Brosseau v. Haugen, 543
U.S. 194, 197, 125 S.Ct. 596, 598, 160 L.Ed.2d 583 (2004). The court must ask
“whether the officer’s conduct is objectively reasonable in light of the facts
confronting the officer.” Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir.
2009). Under this framework, “[t]he ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396,
109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Relevant factors in the
reasonableness inquiry include “(1) the severity of the crime at issue, (2) whether
the suspect poses an immediate threat to the safety of the officers or others, and
(3) whether he is actively resisting arrest or attempting to evade arrest by flight.”
Id. at 396.
While the first Graham factor weighs in Defendants’ favor, the second and
third do not. Taking the facts in the light most favorable to Plaintiff, there is no
basis for believing Plaintiff posed any immediate threat to anyone’s safety or was
a flight risk. Once Plaintiff emerged from underneath the mobile home, he was in
plain view of the officers, and as he was wrestling with Defendant Glassner’s dog
6
and holding the dog’s snout, it was presumably clear he had no weapons. There
is no evidence to suggest that Plaintiff was exhibiting any forceful behavior
towards the Defendants. At that time, Plaintiff was face down on the ground and
“begging” the Defendants to get the dog off of him. It is also important to note
that there were four police officers standing at the scuttle hole, all presumably
armed, when Plaintiff and the dog emerged from underneath the mobile home.
Plaintiff, surrounded by the officers, presumably did not pose a serious risk of
harm to the officers, or a realistic risk of flight. Certainly there is a question as to
whether Defendant Glassner’s dog was called off or withdrawn as soon as
reasonably possible. While Defendants fault Plaintiff for fighting with the dog
rather than surrendering, the Court believes “that a jury could find it objectively
unreasonable to require someone to put his hands up and calmly surrender while
a police dog bites his scrotum,” Kopf v. Wing, 942 F.2d 265, 268 (4th Cir. 1991),
or in this case his head, side, arm, and shoulder.
Further, there is a material dispute in the evidence as to whether
Defendant Glassner’s dog continued to attack Plaintiff once he was handcuffed.
If they determined that Plaintiff’s version of events was the true version of events,
a reasonable jury could conclude that Defendants used an unreasonable amount
of force when they allowed Defendant Glassner’s dog to bite Plaintiff after he was
handcuffed and offering no resistance.
In addition, there is no clear evidence in the record as to how long the
attack lasted. The jury will have to make a factual determination about how long
7
the attack lasted, and from there, the jury will have to decide whether the length
of the attack was unreasonable.
As for Defendants’ second argument, the Court agrees with the Magistrate
Judge that Defendants are not entitled to qualified immunity. Plaintiff’s right to be
free from the force used by Defendant Glassner’s canine in its continued attack
was clearly established at the time of Plaintiff’s arrest in 2011.
The Magistrate Judge’s Recommendation (Doc. 44) is accepted and
adopted. Defendants’ objections are overruled. Defendant Grundy’s Motion for
Summary Judgment (Doc. 22) and Defendants Marion, Glassner, and
Englemann’s Motion for Summary Judgment (Doc. 29) are both granted in part
and denied in part. Specifically, summary judgment is granted in Defendants’
favor with respect to the release of Defendant Glassner’s canine and with respect
to the release of Defendant Marion’s canine, but summary judgment is denied
with respect to the continued attack of Defendant Glassner’s canine.
This case is set down on the Court’s trial calendar scheduled to begin on
January 21, 2014 in Valdosta. Separate notice about the pretrial conference will
be sent out in the near future.
SO ORDERED, this the 16th day of September, 2013.
s/Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
mbh
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?