SANTIAGO v. MCCLASKEY

Filing 80

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 5/18/2016; that Rios's Summary Judgment Motion (Docket Entry 66 ) is DENIED. FURTHER that Plaintiff's Extension Motion (Docket Entry 77 ) is DENIED. FURTHER that Plaintiff's Motion to Response in Opposition Exhibit "A" and "B" (Docket Entry 75 -2), Motion in Opposition Exhibit "C," "D" "E" (Docket Entry 75 -3), and Motion to Epitomize and Support the Brief of Summary Judgment (Docket Entry 76 ), and Rios's Motion to Allow Surreply (Docket Entry 78 ), are all DENIED AS MOOT. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RAYMOND SANTIAGO GARCIA,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
J.P. MCCLASKEY, et al.,
Defendants.

1:12CV93

MEMORANDUM OPINION AND ORDER
This case comes before the Court on the Motion for Summary
Judgment (Docket Entry 66) (the “Summary Judgment Motion”) and
Motion to Allow Surreply (Docket Entry 78) of Defendant Ubaldo Rios
(“Rios”), as well as various “Motions” (Docket Entries 75-2, 75-3,
76, 77) filed by Plaintiff.1

For the reasons that follow, the

Court will deny all of these Motions.
I. BACKGROUND
Plaintiff alleges that Rios violated his rights under the
Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution, as actionable under 42 U.S.C. § 1983, by “us[ing]
unreasonable and [e]xcessive force against . . . Plaintiff” in
connection with his arrest.

1

(Docket Entry 38 at 1-2, 8-11 (the

The parties have consented to disposition of this case by a
United States Magistrate Judge. (Docket Entry 31.)

“Third Amended Complaint”).)2 The Summary Judgment Motion contends
that “Plaintiff’s allegations are completely false and contradicted
by the evidence” (Docket Entry 66 at 1), “entitl[ing] [Rios] to
qualified immunity from Plaintiff’s claim for excessive force”
(Docket Entry 67 at 7; see also id. at 12-16).
In support of the Summary Judgment Motion, Rios filed his
declaration (Docket Entry 67-1) (the “Rios Declaration”), the
Declaration of W. Todd Elmore (Docket Entry 67-2) (the “Elmore
Declaration”), intake pictures (a color and black-and-white copy of
each) of Plaintiff’s face and left side profile that the Cabarrus
County Sheriff’s Office took the day after Plaintiff’s arrest
2

The Court provided a detailed description of the procedural
history of this case in a prior order granting in part the Motion
to Dismiss of Rios and the United States of America. (Docket Entry
63 at 1-2.) Only Plaintiff’s excessive force claim remains against
Rios.
(See id. at 8-9; see also Docket Entry 37 at 22.)
Nevertheless, Plaintiff’s Response apparently attempts to assert
several other claims against Rios.
(Docket Entry 73 at 13-17
(describing
claims
against
all
Defendants
for
federal
constitutional violations regarding an alleged illegal search, and
for negligence, conspiracy, and assault under North Carolina common
law).) To the extent such discussion represents an effort to amend
his Third Amended Complaint (see id. at 13 (“Plaintiff suffered
‘General and Special’ damages as alleged in this Complaint”),
Plaintiff has not provided Defendants’ written consent to such an
amendment or obtained the “[C]ourt’s leave,” Fed. R. Civ. P.
15(a)(1)-(2) (requiring that, after a party has once amended his
pleading as a matter of course, he must receive “the opposing
party’s consent or the court’s leave” to amend the pleading again).
Further, Plaintiff cannot amend his Third Amended Complaint through
his Response to Rios’s Summary Judgment Motion.
See Hexion
Specialty Chems., Inc. v. Oak–Bark Corp., No. 7:09–CV–105–D, 2011
WL 4527382, at *7 (E.D.N.C. Sept. 28, 2011) (“[A] party may not use
its briefs in support of or opposition to summary judgment to amend
a complaint.” (collecting cases)).
-2-

(Docket Entry 67-3) (the “Intake Pictures”), an inmate medical
screening form that Plaintiff completed the day after his arrest
(Docket Entry 67-4) (the “Inmate Medical Screening”), and a sickcall request that Plaintiff submitted the day after his arrest
(Docket Entry 67-5) (the “Sick-Call Request”).

In turn, Plaintiff

filed a notarized response (the “Response”) setting forth his
version of the events during his arrest.
replied contending

that

summary

(Docket Entry 73.)3

judgment

remains

Rios

appropriate.

(Docket Entry 74.)4

3

The Clerk docketed Plaintiff’s Response on March 15, 2016
(see Docket Entry 73 at 1), after his response deadline had passed
(see Text Order dated Feb. 2, 2016 (extending response deadline to
Feb. 26, 2016); see also Text Order dated Mar. 14, 2016 (denying
Plaintiff’s fourth motion for extension of time to respond) (the
“Fourth Extension Motion”); Text Order dated Feb. 11, 2016 (denying
Plaintiff’s third motion for extension of time to respond) (the
“Third Extension Motion”).) Plaintiff, however, dated his Response
as signed and submitted from prison on January 22, 2016. (See id.
at 18.) Moreover, Plaintiff included with his Response a “Notice
and Memorandum” indicating that he did not receive the Court’s
orders denying his Third Extension Motion and Fourth Extension
Motion until March 10, 2016. (See Docket Entry 73-1.) Under these
circumstances, the Court, in its discretion, will treat the
Response as timely filed for purposes of resolving the Summary
Judgment Motion. Moving forward in this litigation, Plaintiff must
understand that the mere filing of extension motions does not stay
pending deadlines.
4

After Rios replied to the Response, Plaintiff filed an
unnotarized version of his Response (Docket Entry 75), along with
a litany of “motions,” affidavits, and other filings containing
evidence in support of his claim (Docket Entry 75-1 (“Affidavit for
Support My Summary Judgment and My Medical Record”); Docket Entry
75-2 (“Motion to Response in Opposition Exhibit ‘A’ and ‘B’”);
Docket Entry 75-3 (“Motion in Opposition Exhibit ‘C,’ ‘D’ ‘E’”);
Docket Entry 76 (“Motion to Epitomize and Support the Brief of
Summary Judgment”); Docket Entry 76-1 (various exhibits, including
-3-

II. FACTUAL BACKGROUND
This action arises from Rios’s alleged use of excessive force
against Plaintiff during his arrest.

(See Docket Entry 38.)

As

detailed below, the parties present markedly different versions of
the relevant events.
A.

Rios’s Version
According to the evidence submitted by Rios:
Rios works for the United States Department of Homeland

Security, U.S. Immigration and Customs Enforcement (“ICE”), as a
Special Agent with ICE, Homeland Security Investigations (“HSI”).
(Docket Entry 67-1, ¶¶ 2-3.)

Rios has “worked in HSI’s Narcotics

Unit in Charlotte, North Carolina, since April 2007.”

(Id. ¶ 3.)

In that role, Rios works to “detect, deter, and dismantle narcotics
trafficking organizations.”

(Id.)

an alleged photo of Plaintiff’s back, several “Witness” statements,
copies of Plaintiff’s medical and dental records, a copy of
Plaintiff’s arrest warrant, copies of two search warrants, and an
alleged copy of a police statement); Docket Entry 77 (“Motion to
‘Add’ my Last X-Rays” (the “Extension Motion”)).
Plaintiff’s
Extension Motion asks the Court to stay the case pending
Plaintiff’s transfer.
(Docket Entry 77 at 1.)
Because the
Extension Motion provides no grounds justifying a stay (see id.),
the Court will deny that request.
Moreover, in response to
Plaintiff’s filings, Rios filed his Motion to Allow Surreply
(Docket Entry 78), along with a supporting brief (Docket Entry 79)
and three exhibits (Docket Entries 78-1 through 78-3). Because
Plaintiff’s Response (Docket Entry 73) provides sufficient grounds
to deny Rios’s Summary Judgment Motion (Docket Entry 66), the Court
will not consider the parties’ additional filings (Docket Entries
75, 75-1, 75-2, 75-3, 76, 76-1, 78, 78-1, 78-2, 78-3, 79). As a
result, those filings labeled as “Motions” (Docket Entries 75-2,
75-3, 76, 78) will be denied as moot.
-4-

“In

May

2011,

investigating

a

the

Rowan

Mexican

County

cocaine

Sheriff’s

trafficking

[operating] in Rowan and Cabarrus counties.”
Entry 67-2, ¶ 4 (Elmore Declaration).)

Office

began

organization

(Id. ¶ 4; Docket

During the investigation,

law enforcement officers (the “LEOs”) searched two residences
“involved in storing and distributing cocaine,” and “found multiple
kilograms of cocaine, a cocaine press, drug paraphernalia, $324,000
in U.S. currency, and records showing a distribution paper trial.”
(Docket Entry 67-1, ¶¶ 4-5; Docket Entry 67-2, ¶¶ 4-5.)

The

Concord Police Department subsequently received information from a
confidential informant that Plaintiff was hiding at 642 Wyoming
Drive and “possessed a handgun.”

(Docket Entry 67-1, ¶ 6; Docket

Entry 67-2, ¶ 6.)
HSI Criminal Investigator Todd Elmore (“Elmore”) and other
LEOs

conducted

a

“knock-and-talk”

at

the

642

Wyoming

Drive

residence. (Docket Entry 67-2, ¶ 6 (internal quotation marks
omitted); see also Docket Entry 67-1, ¶ 6.)5

During the knock-and-

talk, Rios held a containment position behind the residence to
prevent anyone

from

escaping

through

a

rear window

or door.

(Docket Entry 67-1, ¶ 7; see also Docket Entry 67-2, ¶ 11.)

While

Rios maintained his position behind the residence, Elmore and the
other LEOs knocked on the front door and heard someone running
5

Subsequent to the events at issue in this action, Elmore
retired from his position with HSI. (Docket Entry 67-2, ¶ 3.)
-5-

inside.

(Docket Entry 67-2, ¶ 7.)

Upon forcing open the door,

Elmore and the LEOs “saw [Plaintiff] running down the hallway from
the living area towards the back bedroom.”

(Id.)

Based on the

informant’s tip that Plaintiff possessed a handgun, Elmore and the
LEOs pursued, tackled, and handcuffed Plaintiff, then sat him in a
chair in the living room.

(Id.)

According to Elmore, neither he

nor any of the other LEOs kicked, punched, stomped, or used
unnecessary force against Plaintiff.
After

Plaintiff’s

apprehension,

interpret for Plaintiff.
11.)

(Id.)
Elmore

summoned

Rios

to

(Id. ¶ 8; see also Docket Entry 67-1, ¶

“[Rios] entered the residence through the back door” (Docket

Entry 67-1, ¶ 9) and “read [Plaintiff] his Miranda rights in
Spanish” (Docket Entry 67-2, ¶ 8; see also Docket Entry 67-1, ¶
12), which Plaintiff waived (Docket Entry 67-1, ¶ 11; Docket Entry
67-2, ¶ 10).

Plaintiff consented to a search of the residence and

answered Elmore’s questions (with Rios acting as interpreter) for
about 25 minutes. (Docket Entry 67-1, ¶¶ 10-11; Docket Entry 67-2,
¶¶ 9-10.)
handgun.

The search uncovered $24,939 in U.S. currency and a
(Docket Entry 67-1, ¶ 10; Docket Entry 67-2, ¶ 9.)

“The

handgun was found in the back bedroom towards which [Plaintiff] had
been running.”
With

(Docket Entry 67-2, ¶ 9.)

regard

to

the

apprehension

and

alleged

injury

of

Plaintiff, Elmore’s Declaration states that “Rios did not assist in
arresting [Plaintiff] or in searching or clearing the residence”
-6-

(id. ¶ 11), and that “[Elmore] did not observe . . . Rios have any
physical

contact

with

[Plaintiff]”

(id.

¶

13).

Elmore’s

Declaration further avers that Rios did not kick Plaintiff between
his legs or dislocate Plaintiff’s right shoulder. (Id.) Moreover,
Elmore and Rios both have asserted that, during questioning,
Plaintiff possessed no visible or apparent injuries, and made no
complaints of injuries.

(Id. ¶ 12; Docket Entry 67-1, ¶ 13.)

Rios also has argued that the Intake Pictures (Docket Entry
67-3) support his version of the arrest, as they do not reveal any
apparent injuries to Plaintiff’s face or head.
67 at 5.)

(See Docket Entry

Likewise, Rios has contended that the Inmate Medical

Screening, which consists of 34 questions regarding Plaintiff’s
health, medical conditions, medications, and injuries (Docket Entry
67-4), further corroborates Rios’s version of the arrest.
Entry 67 at 5.)

(Docket

In that regard, Plaintiff responded in the

negative to the following questions:
8. Do you have obvious pain, bleeding or other symptoms
requiring emergency services?
. . .
25.

Fainted, had seizures or a recent head injury?

. . .
28.

Does the inmate have painful dental condition?

. . .
31.

Do you have other medical problems?
-7-

(Docket Entry 67-4 at 2-4 (indicating that Plaintiff answered all
34 questions and signed the completed Inmate Medical Screening).)
Moreover, the Sick-Call Request that Plaintiff allegedly made the
day after his arrest states that “[a]pproximately 20 yrs ago [he]
was kicked by a horse and because of the incident [he] [has] a
cracked disc in [his] lower back.”

(Docket Entry 67-5 at 2.)

B. Plaintiff’s Version
Plaintiff

recounts

a

different

version

of

the

events

surrounding his arrest:
On August 15, 2011, Rios and various other LEOs visited the
642 Wyoming Drive residence, broke in the front door, and entered
without consent.

(Docket Entry 73, ¶¶ 20-21.)

At the time of

their entry, Plaintiff was in the bathroom located in the master
bedroom.

(Id.

¶

20.)

Upon

hearing

the

noise,

Plaintiff

immediately proceeded out of the bathroom, through the master
bedroom, and towards the front door.

(Id.)

When Plaintiff opened

the master bedroom door that led to the hallway, several LEOs
pointing weapons and flashlights advanced in his direction.
¶ 21.)

(Id.

Plaintiff became startled and instantly raised his hands

above his head and froze.

(Id.)

Rios then immediately struck Plaintiff with something long,
black, and cylindrical, which Plaintiff describes as a blackjack.
(Id.)
floor.

The force and pain of that blow knocked Plaintiff to the
(Id.)

Rios dragged Plaintiff, face down, by his hair,
-8-

through the hallway and into the living room.

(Id. ¶ 22.)

Other

LEOs watched and laughed as Rios and “[a]nother partner” kicked
Plaintiff.

(Id. ¶ 23.)

During the beating, Rios landed a particularly severe kick to
the sensitive area between Plaintiff’s scrotum and anus, tearing
and breaking tendons, causing Plaintiff excruciating pain and
severe damage, and requiring an operation.

(Id. ¶¶ 24, 32.)

Another of Rios’s kicks and/or stomps struck Plaintiff in the head,
requiring removal of a tooth.

(Id. ¶ 35.)6

Additionally, a blow

to Plaintiff’s back, landed by Rios and/or his partner, fractured
a disc on Plaintiff’s left side.

(Id. ¶ 33.)

Rios thereafter violently handcuffed Plaintiff’s arms behind
his

back

and

“snatched”

Plaintiff

to

his

feet

by

one

arm,

dislocating his right shoulder and causing excruciating pain and
severe damage.

(Id. ¶ 25.)

At all times before, during, and after

the incident, Plaintiff followed all instructions, possessed no
weapon on his person, and posed no threat to the LEOs’ safety.
(Id. ¶ 26.)

The alleged beating caused Plaintiff to urinate heavy

blood for over one week, impaired his ability to exercise, and
6

The Third Amended Complaint alleges that “Det McClaskey, Det
Childer, and Det Gonsalez intentional[l]y, maliciously and/or
recklessly landed a flurry of vicious kicks and stomps to . . .
Plaintiff[’s] sid[e], back, shoulders, neck and head causing severe
pain, bruising and partially dislodging a tooth that would later
have to be [r]emoved.” (Docket Entry 38, ¶ 25.)
In contrast,
Plaintiff’s Response states that Rios landed the blow that
dislodged Plaintiff’s tooth. (See Docket Entry 73, ¶ 35.)
-9-

resulted in trauma, nightmares causing a lack of sleep, emotional
distress, mental anguish, and ongoing back and shoulder pain. (Id.
¶¶ 30-32, 34, 36.)
III. ANALYSIS
The Court should grant a motion for summary judgment when
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

A genuine dispute exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

This

standard requires more than a mere scintilla of evidence. American
Arms Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009).
considering

a

motion

for

summary

judgment,

“[t]he

facts

In
and

inferences to be drawn from the facts must be viewed in the light
most favorable to the non-moving party, and this party is entitled
to have the credibility of his evidence as forecast assumed, his
version of all that is in dispute accepted, and all internal
conflicts in it resolved favorably to him.”

Miller v. Leathers,

913 F.2d 1085, 1087 (4th Cir. 1990) (en banc) (internal quotation
marks and brackets omitted).

The party seeking summary judgment

has the initial burden to show an absence of evidence to support
the nonmoving party’s case.
317, 325 (1986).

Celotex Corp. v. Catrett, 477 U.S.

The opposing party then must demonstrate that a

triable issue of fact exists; he may not rest upon mere allegations
-10-

or denials in his pleading.

Anderson, 477 U.S. at 248.

In regard

to a motion for summary judgment, a party need not submit evidence
in an admissible form, but the evidence must otherwise qualify for
admission at trial.

Celotex Corp., 477 U.S. at 324.

“Qualified immunity is ‘an entitlement not to stand trial or
face the other burdens of litigation.’” Brown v. Gilmore, 278 F.3d
362, 366-67 (4th Cir. 2002) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)).

“The Supreme Court has directed that ‘qualified

immunity questions should be resolved at the earliest possible
stage of a litigation.’”

Smith v. Reddy, 101 F.3d 351, 357 (4th

Cir. 1996) (quoting Anderson v. Creighton, 483 U.S. 635, 646 n.6
(1987)).

Nevertheless, “summary judgment on qualified immunity

grounds is improper as long as there remains any material factual
dispute regarding the actual conduct of the defendants.”
v.

Prince

George’s

Cty.,

154

F.3d

(internal quotation marks omitted).
two-prong analysis.
Cir. 2013).

173,

180

(4th

Vathekan

Cir.

1998)

Qualified immunity requires a

Williams v. Ozmint, 716 F.3d 801, 805 (4th

The Court must consider (1) “whether a constitutional

violation occurred,” and (2) “whether the right violated was
‘clearly established’ at the time of the official’s conduct.”

Id.

The Court may exercise its discretion when deciding which of the

-11-

two prongs to consider first.

Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc).7
Under the facts averred by Plaintiff, Rios used excessive
force.

“It is clearly established that citizens have a Fourth

Amendment right to be free from unreasonable seizures accomplished
by excessive force.” Valladares v. Cordero, 552 F.3d 384, 388 (4th
Cir. 2009).

“Excessive force [arrest] claims are analyzed under

the

Amendment’s

Fourth

‘objective

reasonableness’

standard.”

Gilmore, 278 F.3d at 369 (quoting Graham v. Connor, 490 U.S. 386,
388 (1989)).

Under

this

standard,

the

Court

must

determine

“whether a reasonable officer in the same circumstances would have
concluded that a threat existed justifying the particular use of
force.”

Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)

(citing Graham, 490 U.S. at 396–97).
Recognizing that “police officers are often forced to make
split-second

judgments

-

in

circumstances

that

are

tense,

uncertain, and rapidly evolving,” the Court must judge “[t]he
‘reasonableness’ of a particular use of force . . . from the
perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396-97.

“The

intent or motivation of the officer is irrelevant; the question is

7

Rios only has addressed the first prong of the qualified
immunity analysis. (See Docket Entry 67 at 8-16.) Accordingly,
the Court will not discuss the second prong.
-12-

whether a reasonable officer in the same circumstances would have
concluded that a threat existed justifying the particular use of
force.”
97).

Elliott, 99 F.3d at 642 (citing Graham, 490 U.S. at 396-

Proper application of the objective reasonableness standard

“requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.”

Graham, 490 U.S. at 396.

Additionally, “[t]he extent of the plaintiff’s injury is also a
relevant consideration.” Jones v. Buchanan, 325 F.3d 520, 527 (4th
Cir. 2003).

When applying these factors, the Court must determine

whether the totality of the circumstances justified the particular
use of force in effecting the seizure.

Id. at 527-28.

Rios argues that his conduct did not rise to the level of a
constitutional

violation,

shields his actions.

and,

thus,

that

qualified

(Docket Entry 67 at 9-16.)

immunity

Rios’s argument

rests primarily on his version of events from the arrest, as
supported by the Elmore Declaration.

(See id. at 3-5, 14; see also

Docket Entry 67-1 (Rios Declaration); Docket Entry 67-2 (Elmore
Declaration).)

However, on summary judgment, the Court must

consider the facts in the light most favorable to Plaintiff as the
nonmoving party.

See Henry, 652 F.3d at 531.

-13-

Rios attempts to avoid this rule by relying on Scott v.
Harris, 550 U.S. 372 (2007).

(See Docket Entry 67 at 12-13.)

In

that case, the Supreme Court addressed the effect of an uncontested
videotape on a motion for summary judgment.
378-79.

There,

the

plaintiff

filed

suit

Scott, 550 U.S. at
under

Section

1983

alleging that a police officer used “excessive force resulting in
an

unreasonable

seizure

under

the

Fourth

Amendment”

by

intentionally wrecking the plaintiff’s car to end a high-speed
chase.

Id. at 375-76.

In resolving the summary judgment issue,

the Supreme Court focused on the existence of the uncontested video
recording of the car chase that contradicted the plaintiff’s
version

of

events.

Id.

at

378-80.

Relying

on

that

video

recording, the Supreme Court rejected the plaintiff’s version of
events for purposes of analyzing the motion for summary judgment,
concluding

that,

“[w]hen

opposing

parties

tell

two

different

stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for
summary judgment.”

Id. at 380.

This case does not resemble Scott.

Here, the evidence before

the Court consists mainly of affidavits detailing contradictory
versions of Plaintiff’s arrest (compare Docket Entries 67-1, 67-2,
with Docket Entry 73), and Rios has provided no video footage or

-14-

other such evidence that requires acceptance of his account.8
Although

the

Intake

Pictures,

Inmate

Medical

Screening,

and

Sick-Call Request tend to undermine Plaintiff’s contention that he
suffered major injuries from the force that Rios allegedly used
during the arrest, those submissions, even when coupled with the
Rios Declaration and Elmore Declaration, do not provide the type of
objective proof necessary for the Court to completely discount
Plaintiff’s version of the arrest.

Simply put, Rios’s submissions

do not rise to the level of the video evidence that the Supreme
Court deemed conclusive in Scott.

See Stout v. Reuschling, Civ.

Act. No. 14-1555, 2015 WL 1461366, at *10 (D. Md. Mar. 26, 2015)
(“The

evidence

offered

in

this

case

is

simply

not

on

equal

foo[t]ing with the type of evidence that documented the incident
with the level of certain[t]y and reliability as the videotape[] in
Scott . . . .

Where, as here, the parties offer dueling affidavits

with substantially different accounts, Scott instructs that ‘in

8

The Court notes that even video footage of the relevant
events often does not prove dispositive at summary judgment. See,
e.g., Kane v. Beaufort Cty. Sheriff’s Dep’t, Civ. Action No. 9:14508, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015) (determining
that, “because certain relevant details of the encounter are not
visible on the video available, and because they are not offered as
true by the [p]laintiff, the [c]ourt cannot rely on [the]
[d]efendants’ description of the events for purposes of its summary
judgment analysis”); Godfrey v. Faulkner, No. 7:13CV454, 2015 WL
302841, at *4 (W.D. Va. Jan. 23, 2015) (concluding that video
footage of the arrest “is not so entirely inconsistent with [the
plaintiff]’s account of the officers’ conduct that [the court] can
completely discount his version of events”).
-15-

such [a] posture, courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party
opposing the summary judgment motion.’” (quoting Scott, 550 U.S. at
378)).
Rios cites to a number of cases for the proposition that
“government officials are entitled to summary judgment on qualified
immunity when the plaintiff’s allegations are not supported by the
evidence.”
cases).)

(Docket Entry 67 at 14; see also id. at 14-16 (listing
Those cases fall into three separate categories, the

general holdings of which do not specifically apply to this case.
In the first group of cases that Rios cites, courts credited the
plaintiff’s version of the facts only to the extent consistent with
record video evidence.

See Garris v. Averett, Civ. Action No.

5:13-CT-3030-FL, 2014 WL 4727087, at *6 (E.D.N.C. Sept. 23, 2014)
(noting

that

the

unchallenged

videotape

clearly

refuted

the

plaintiff’s account); Croom v. Fullen, No. 7:09CV399, 2010 WL
3783435, at *4 (W.D. Va. Sept. 28, 2010) (observing that “the video
contradicts [the] plaintiff’s assertion[s]”), aff’d, 409 F. App’x
711 (4th Cir. 2011); Randolph v. Jeffery, Civ. Action No. 1:083492-MBS-SVH, 2010 WL 3609014, at *3 (D.S.C. Aug. 3, 2010) (relying
in part on video evidence to conclude that “[the] [p]laintiff was
[not] choked during the use of force,” and the “[d]efendants [did
not] use[] greater force than was necessary”), recommendation
adopted, 2010 WL 3608986 (D.S.C. Sept. 10, 2010); Wilson v. Hall,
-16-

No. 7:09CV503, 2010 WL 2038907, at *7 (W.D. Va. May 20, 2010)
(explaining that the plaintiff’s “allegations . . . are blatantly
contradicted by the unchallenged video recording of the events”
(internal quotation marks omitted)). Here, however, Rios submitted
no

video

recording

of

Plaintiff’s

arrest.

That

materially

distinctive fact prevents reliance on Rios’s first category of
cases.
In the second group of cases that Rios provides, courts held
that even the plaintiffs’ allegations justified the particular uses
of force applied, in light of the totality of the circumstances as
reasonably perceived by the officers.

See Mack-Bey v. Hicks, No.

5:11CV122-RJC, 2015 WL 5730757, at *4 (W.D.N.C. Sept. 30, 2015)
(observing that “[the] [p]laintiff’s affidavit, and other evidence
of record, no doubt confirms the existence of a violent struggle
but the evidence suggests the need for the use of force was in
direct response to [the] [p]laintiff’s refusal to submit to lawful
orders”);9 Summerville v. Shields, No. 1:12CV1505, 2013 WL 4509515,
9

The undisputed evidence in Mack-Bey established that
multiple officers “were themselves seriously injured as [a] result
of [the plaintiff’s] refusal to . . . stop resisting.” Mack-Bey,
2015 WL 5730757, at *5 n.6. In this case by contrast, the record
contains no such undisputed evidence of resistance by Plaintiff
and, as discussed above, his detailed description of the arrest
definitively denies any resistance. To the extent the court in
Mack-Bey granted summary judgment for the officers based (1) on the
fact that numerous officers contradicted the plaintiff’s account of
how many baton strikes occurred and/or (2) the absence of evidence
that Plaintiff complained of injuries from the alleged grabbing of
his testicles by one or more officers, this Court declines to
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at *3 (E.D. Va. Aug. 22, 2013) (concluding that, under “the
totality of the circumstances [the defendant] faced, his actions
were

not

objectively

unreasonable”

because,

“[f]rom

[his]

perspective, he could only restrain [the] plaintiff by employing
the taser and pepper spray and using the baton, and the alleged
fact that [the] plaintiff’s mental condition made [the plaintiff]
unaware that he had the scissors and unable to release them is
irrelevant to the reasonableness analysis”), aff’d, 554 F. App’x
212 (4th Cir. 2014); Britt v. Raymes, No. 5:07-CT-3140-BO, 2013 WL
1091047, at *7 (E.D.N.C. Mar. 15, 2013) (noting that the defendants
reasonably perceived the position of the plaintiff’s weapon as
threatening where the plaintiff acknowledged that he was holding a
weapon, and concluding that the plaintiff’s allegation that he was
shot from point-blank range was specifically refuted by “[t]he
expert opinion, the medical records, and reports”), aff’d, 538 F.
App’x 343 (4th Cir. 2013);10 Benson v. DeLoach, Civ. Action No.
8:09-41-GRA-BHH, 2009 WL 3615026, at *7 (D.S.C. Oct. 28, 2009)
(ruling that “[t]he evidence presented, including the [p]laintiff’s

engage in any such weighing of evidence for purposes of resolving
the instant Summary Judgment Motion.
10

To the extent Britt involved judicial adoption of the
defendants’ evidence over the plaintiff’s version of events, the
Court views the defense evidence submitted in this case to differ
sufficiently in degree of objective conclusiveness as to preclude
judicial rejection of Plaintiff’s version of events at the summary
judgment stage.
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own allegations and statements . . ., plainly shows that at the
time of his arrest, [the plaintiff] actively resisted being taken
into custody and refused to cooperate,” and therefore “it was not
unreasonable for the [d]efendants to believe that the [p]laintiff
posed a threat of serious physical harm to them” requiring the use
of force applied (emphasis added)).
In this case, when viewing the totality of the circumstances
from the perspective of a reasonable officer on the scene, the
facts alleged in Plaintiff’s Response do not establish as a matter
of law that Rios used reasonable force.

Specifically, Plaintiff

alleges that he complied with all orders and presented no threat of
harm to the LEOs during his arrest, but that they proceeded to beat
and kick him anyway.

(Docket Entry 73, ¶ 26.)

That distinction

renders reliance on Rios’s second category of cases improper here.
The

third

group

of

cases

that

Rios

cites

involved

circumstances where, when viewed in the light most favorable to the
plaintiff, the facts alleged did not establish a constitutional
violation.

See Johnson v. Caudill, 475 F.3d 645, 647 (4th Cir.

2007) (ruling that, “[b]ecause a reasonable official in [the
defendant]’s position would not have considered the termination to
violate

[the

plaintiff]’s

rights,

.

.

.

[the

clearly

defendant]

established

[is]

entitled

constitutional
to

qualified

immunity”); Couch v. Jabe, No. 7:11-CV-34, 2012 WL 3043105, at *5*6 (W.D. Va. July 25, 2012) (holding that the plaintiff-inmate
-19-

failed to show that the defendants’ conduct of requiring each
prisoner to file a personal property request form for preapproval
of

mail

ordered

books

violated

his

First

Amendment

rights);

Woodside v. Redmond, No. 5:04CV95-V, 2007 WL 4568975, at *12
(W.D.N.C. Dec. 19, 2007) (applying qualified immunity as alternate
basis for summary judgment because “as a matter of law . . . the
[plaintiff’s] specific allegations of deliberate indifference [to
his serious medical need] do not constitute a violation of a
clearly established constitutional right” (internal quotation marks
omitted)). Here, by contrast and as explained below, Plaintiff has
alleged sufficient facts to support a claim of excessive force
against Rios.

Therefore, this third set of cases does not entitle

Rios to summary judgment.
In sum, “[i]t is not [the Court’s] job to weigh the evidence,
to count how many affidavits favor the plaintiff and how many
oppose him, or to disregard stories that seem hard to believe.
Those tasks are for the jury.”

Gray v. Spillman, 925 F.2d 90, 95

(4th Cir. 1991) (citation omitted).

Rios’s citation of Scott and

the three, above-discussed groups of cases does not alter that
conclusion given the circumstances presented.

Accordingly, the

Court will analyze the Summary Judgment Motion under Plaintiff’s
sworn version of events.
Under the facts described by Plaintiff, a reasonable jury
could find that Rios used excessive force against Plaintiff.
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The

first Graham factor (the severity of the crime at issue) favors
Rios.

At the time of the arrest, Rios believed that Plaintiff was

involved in a cocaine trafficking organization and possessed a
firearm. (See Docket Entry 67-1, ¶¶ 4-6; see also Docket Entry 672, ¶¶ 4-6.)

Suspicion of drug trafficking and firearm possession

tip this factor in Rios’s favor.

See, e.g., Whitebey v. Sarrge,

No. 7:11CV105, 2011 WL 6323134, at *11 (W.D. Va. Dec. 16, 2011)
(concluding that the first Graham factor weighed against the
plaintiff where law enforcement officers suspected him of drug
trafficking and possessing a firearm at the time of his arrest).
The

second

Graham

factor

(whether

the

suspect

posed

an

immediate threat to the safety of officers or others) heavily
favors Plaintiff.

According to Plaintiff, he immediately raised

his hands above his head and froze when he first saw the LEOs
advancing towards him. (Docket Entry 73, ¶ 21.) Plaintiff further
has averred that, while he stood stationary with his hands above
his

head,

Rios

struck

him

with

something

cylindrical, which knocked him to the floor.

long,

black,

and

(Id.)

Next, while

Plaintiff remained face down on the floor, Rios dragged Plaintiff
by his hair into the living room and kicked him numerous times.
(Id. ¶¶ 22-24.)

Plaintiff further has insisted that, during the

arrest, he obeyed all instructions and did not possess a weapon on
his person.

(Id. ¶ 26.)

Accepting these assertions, Plaintiff

posed little danger to Rios or others during his arrest.
-21-

Likewise,

the

third

Graham

factor

(whether

the

resisted or attempted to flee) also favors Plaintiff.

suspect

Plaintiff

reportedly complied with all instructions and took no actions to
resist arrest. (Id. ¶¶ 21-26.) In addition, Plaintiff has claimed
significant

injuries

as

a

result

of

Rios’s

alleged

attack,

including torn and broken tendons between his legs, a fractured
disc in his back, long-lasting back and shoulder pain, and a
dislodged tooth.

(Id. ¶¶ 32-33, 35-36.)

Given the Graham factors and Plaintiff’s factual averments,
the Court concludes that Rios’s alleged actions do not, as a matter
of law, qualify as reasonable under the circumstances.

See Smith

v. Ray, 781 F.3d 95, 106 (4th Cir. 2015) (affirming denial of the
defendant’s motion for summary judgment based on qualified immunity
where “the weakness of the Graham factors was so apparent that any
reasonable officer would have realized that the force [allegedly]
employed was excessive”).11

Therefore, the Court will deny the

Summary Judgment Motion.

11

“[The] conclusion that [Rios] is not entitled to qualified
immunity at this stage is no indictment of [Rios], who denies many
of the facts on which [Plaintiff]’s claim is based.” Ray, 781 F.3d
at 106.
Most significantly, Rios contends that he provided no
assistance, and was not even present, during Plaintiff’s arrest.
(Docket Enter 67-1, ¶¶ 6, 12.) “However, . . . it is the jury’s
role, not [the Court’s], to decide whose version of facts is
correct.” Ray, 781 F.3d at 106.
-22-

IV. CONCLUSION
Plaintiff has come forth with sufficient factual support to
create a genuine dispute of material fact regarding his claim that
Rios used excessive force during Plaintiff’s arrest.
IT IS THEREFORE ORDERED that Rios’s Summary Judgment Motion
(Docket Entry 66) is DENIED.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

Extension

Motion

(Docket Entry 77) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Response in
Opposition Exhibit “A” and “B” (Docket Entry 75-2), Motion in
Opposition Exhibit “C,” “D” “E” (Docket Entry 75-3), and Motion to
Epitomize and Support the Brief of Summary Judgment (Docket Entry
76), and Rios’s Motion to Allow Surreply (Docket Entry 78), are all
DENIED AS MOOT.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 18, 2016

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