HAIZLIP v. ALSTON et al
Filing
61
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 8/5/2016. RECOMMENDED that the Summary Judgment Motion (Docket Entry 51 ) be granted in part and denied in part, in that the Court should enter summary judgment in favor of Defendants on Plaintiff's excessive force claim, except that Plaintiff's claim against Defendant Alston for picking up and then dropping Plaintiff while handcuffed and compliant at the jail should survive. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DWAYNE DUMONT HAIZLIP,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
RICK ALSTON, et al.,
Defendants.
1:14CV770
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation on the Motion for Summary
Judgment
(the
(“Defendant
“Summary
Moore”),
Judgment
Hannon
Motion”)
(“Defendant
of
Defendants
Hannon”),
Moore
Caviness
(“Defendant Caviness,” and collectively with Defendant Moore and
Defendant Hannon, the “Search Defendants”), and Alston (“Defendant
Alston,”
and
“Defendants”).
collectively
with
(Docket Entry 51.)
the
Search
Defendants,
the
For the reasons that follow,
the undersigned will recommend that the Court grant in part and
deny in part the Summary Judgment Motion.
I. PROCEDURAL HISTORY
Plaintiff, an inmate proceeding pro se, filed an initial
complaint (the “Complaint”) alleging claims of excessive force and
presenting false testimony (Docket Entry 2) under 42 U.S.C. § 1983.
The Court dismissed Plaintiff’s false-testimony claim, but allowed
his excessive force claim to proceed.
(Docket Entry 8.)
After
Defendants filed a Motion to Dismiss (Docket Entry 24), Plaintiff
filed a Motion for Leave to File an Amended Complaint (Docket Entry
28), which the Court granted (Docket Entry 30). Plaintiff’s sworn,
amended complaint (the “Amended Complaint”) re-asserts Plaintiff’s
excessive force claim against Defendants and alleges that the
events giving rise to that claim all occurred on September 8, 2011
(Docket Entry 28 at 2-3), rather than on September 7, 2011, as
alleged in the Complaint (Docket Entry 2 at 3).
The parties then engaged in discovery.
Entry dated July 13, 2015.)
(See, e.g., Docket
At the end of discovery, Defendants
filed the Summary Judgment Motion, arguing that (1) “the applicable
three-year statute of limitations” bars Plaintiff’s excessive force
claim against the Search Defendants, and that (2) “Defendants are
entitled to qualified immunity from suit in this case.”
(Docket
Entry
Motion,
51
Defendants
at
1-2.)
filed
(1)
Along
a
with
the
supporting
Summary
brief
Judgment
(Docket
Entry
52),
(2) Defendants’ declarations (Docket Entries 53, 54, 55, 56),
(3) an Incident/Investigation Report (Docket Entry 56-1), (4) the
Declaration of Kerry Cross (Docket Entry 57), (5) the Declaration
of Kimberly Gross (Docket Entry 58), and (6) certain documents
regarding the towing of a vehicle (Docket Entry 58-1).
The Clerk
sent Plaintiff a letter in accordance with Roseboro v. Garrison,
528
F.2d
309
(4th
Cir.
1975),
-2-
advising
Plaintiff
of
the
requirements for filing a response to the Summary Judgment Motion.
(Docket Entry 59.)
Despite that notice, Plaintiff failed to
respond to the Summary Judgment Motion.
(See Docket Entries dated
Feb. 15, 2016, to present.)
II. STATEMENT OF FACTS
This action arises from Defendants’ alleged use of excessive
force against Plaintiff.
(See Docket Entry 28 at 2-3.)
As
detailed below through their sworn statements, the parties present
different versions of the relevant events.
A.
Plaintiff’s Version
Plaintiff’s version of the relevant events begins on the
evening of his arrest.
In particular, Plaintiff asserts that:
“[T]here was a crash, chase and arrest” involving certain
officers, Plaintiff, and Pamela Haizlip (“Ms. Haizlip”).
2.)1
(Id. at
After the officers “apprehended, handcuffed and arrested”
Plaintiff, they “told [him] to stand up because he was on the
ground.”
(Id.)
The officers then searched Plaintiff and “told
[him] to sit back down.”
(Id.)
“[A]s [Plaintiff] was attempting
to sit down[,] [Defendant] Caviness kicked the Plaintiff in the
right side of his leg in attemps [sic] to injure him, during the
same time [that] [Defendant] Hannon and [Defendant] Moore pull[ed]
and drag[ged] the [P]laintiff to and on the ground (concrete)
1
Ms. Haizlip is Plaintiff’s aunt.
23.)
-3-
(Docket Entry 56, ¶¶ 8,
causing abrasions on both [Plaintiff’s] right[ and] left elbow
areas and left forearm[].”
(Id. at 2-3.)
After transporting Plaintiff to jail, “bail was given to the
Plaintiff and [Ms. Haizlip].”
(Id. at 3.)
Defendant “Alston
grab[bed] the Plaintiff and t[ook] him to the concrete floor
roughly and handcuff[ed] him behind his back.” (Id.) “[Defendant]
Alston attemps [sic] to pick up the Plaintiff by the handcuffs,”
but “drop[ped] the Plaintiff back to the concrete floor with the
handcuffs on behind his back in attemps [sic] to further injure
him.”
(Id.)
“[Defendant] Moore c[ame] to assist [Defendant]
Alston with picking up the Plaintiff from the floor” and “open[ed]
the holding cell.”
(Id.)
“[Defendant] Alston then grab[bed] the
Plaintiff an[d] thr[ew] him into the holding cell roughly with the
handcuffs still on, into the wall further injuring [Plaintiff’s]
already wrap [sic] arms [from] the abrasion injuries.”
(Id.)
B. Defendants’ Version
At all times material to this action, Defendants served as
police officers with the Greensboro Police Department (the “GPD”).
(Docket Entry 53, ¶ 2; Docket Entry 54, ¶ 2; Docket Entry 55, ¶ 2;
Docket Entry 56, ¶ 2.)
Defendants have provided a more detailed
version of the events surrounding Plaintiff’s apprehension, arrest,
and booking.
-4-
i. Defendant Alston
Defendant Alston reports that:
He
learned
through
a
confidential
informant
purchases occurred at a particular residence.
¶ 5.)
that
drug
(Docket Entry 56,
While conducting surveillance at that residence, Defendant
Alston observed Plaintiff attempt to approach his vehicle, and
later observed an SUV owned by Ms. Haizlip (the “SUV”) leave the
residence.
(Id. ¶¶ 7-8.)
Upon leaving the residence, “[t]he SUV
. . . travelled at a high rate of speed, violating multiple traffic
laws.”
(Id. ¶ 9.)
Other officers commented on “an open radio
communications channel . . . that if it was Ms. Haizlip, she would
run.”
(Id. ¶ 10.)
A “vehicle chase” involving the SUV and
officers other than Defendant Alston “ensued.”
(Id. ¶ 11.)
After officers stopped the SUV, Defendant Alston arrived on
the scene and observed “Plaintiff hopping a fence . . . and
[Defendant] Moore in pursuit of him.”
(Id. ¶ 12.)
Defendant
Alston drove “around the perimeter to get in a position to help”
(id.
¶
13),
and
heard
through
the
radio
that
officers
had
apprehended Plaintiff and found drugs (id. ¶ 14). Defendant Alston
“remained at the scene during the time that [he] and the other
officers processed the crime scene, collected the drug evidence[,]
and moved the Plaintiff to a marked vehicle for transport to the
[jail].”
(Id. ¶ 15.)
“During this time at the scene, [Defendant
Alston reports that he] observed all the activities related to the
-5-
custody of the Plaintiff, and no act of excessive force against the
Plaintiff occurred at any point.”
(Id. ¶ 16.)
Upon arrival at the jail, Defendant Alston observed that
Plaintiff and Ms. Haizlip initially presented “no real problems.”
(Id. ¶ 19.)
However, after a magistrate read them their charges
and set their bonds, they “became aggravated” (id. ¶ 20) and
“visibly angry towards [Defendant] Moore and [Defendant Alston]”
(id. ¶ 21).
“During this time[,] neither the Plaintiff nor Ms.
Haizlip were handcuffed.”
“[Defendant
Alston]
(Id. ¶ 22.)
told
Ms.
Haizlip
to
give
property for processing per standard procedure.”
[him]
her
(Id. ¶ 23.)
Plaintiff responded, “‘you’re not going to be talking to my aunt
like that’ in an aggressive tone as he approached [Defendant
Alston].”
(Id.)
“Plaintiff proceeded to approach [Defendant
Alston] in a fighting manner” (id. ¶ 24), and “[u]ltimately . . .
squared his body to [Defendant Alston] and took an aggressive,
fighting stance” (id. ¶ 25).
“[Defendant Alston] attempted to
escort [Plaintiff] back to the bench where he had been sitting, but
[Plaintiff] went back into the corner, remained in an aggressive
stance, and . . . clench[ed] his fists.”
(Id. ¶ 26.)
also called Defendant Alston “multiple racist names.”
Plaintiff
(Id. ¶ 27.)
“Ms. Haizlip then attempted to get involved, but [Defendant]
Moore took physical control of her and ensured that she remained on
the bench.”
(Id. ¶ 28.) “[Defendant Alston] continued to try [to]
-6-
gain control of the Plaintiff and the Plaintiff continued to take
a stance as if [he] wanted to physically fight.”
(Id. ¶ 29.)
Although Ms. Haizlip was now handcuffed, she “still attempt[ed] to
get involved.”
(Id. ¶ 30.)
“[Defendant Alston] finally was able to bring the Plaintiff to
the ground in normal fashion and place him in handcuffs.”
¶ 31.)
(Id.
Defendant Alston then picked Plaintiff up and took him to
a holding cell.
(Id. ¶ 32.)
the holding cell door.
Defendant Moore assisted with opening
(Id. ¶ 33.)
Because “Plaintiff continued
to physically resist being moved,” Defendant Alston “grapple[d] the
Plaintiff face-to-face and put him into the holding cell.”
¶ 34.)
(Id.
“[Defendant] Moore quickly closed the door to prevent the
Plaintiff from attempting to charge back out.”
(Id. ¶ 35.)
“Plaintiff immediately spit in [Defendant Alston’s] direction close
to [him].”
(Id. ¶ 36.)
Defendant Alston asserts that “[a]t no
point did [he] propel the Plaintiff with force which caused the
Plaintiff to fall, hit a wall or come into contact with any other
objects.” (Id. ¶ 34.) Additionally, Defendant Alston asserts that
Plaintiff did not “request . . . EMS or medical attention,” and
that “there were no bandages on anyone involved.”
(Id. ¶¶ 37-38.)
ii. Defendant Moore
Defendant Moore’s version of the relevant events begins with
the officers’ pursuit of the SUV.
-7-
Defendant Moore reports that:
Defendant Alston called him “to assist in an investigation
arising from a residential narcotics complaint.” (Docket Entry 53,
¶ 6.)
Defendant Alston dictated “through a working channel that a
[vehicle] was heading towards U.S. 29.”
(Id. ¶ 7.)
Defendant
Moore followed “a number of surveillance vehicles and not directly
behind the suspect’s [vehicle].”
(Id. ¶ 8.)
“On the working
channel, one of the officers ran the license plate number on the
[vehicle] and discovered that it belonged to [Ms.] Haizlip, who had
a suspended license.”
(Id. ¶ 9.)
“Statements were also made
regarding the tendency of anyone in the Haizlip family to run from
police.”
(Id. ¶ 10.)
Another officer attempted to initiate a
traffic stop of the vehicle, but it “accelerated and attempted to
elude police.”
(Id. ¶¶ 11-12.)
“A vehicle pursuit ensued between
officers and the [vehicle] when [it] failed to heed blue lights and
siren.”
(Id. ¶ 13.)
Defendant Moore “observed [the pursuing
officer] attempting to stop the [vehicle] and the vehicles exiting
at [an] exit ramp.” (Id. ¶ 14.) “[Defendant Moore] simultaneously
observed a subject who [he] later identified as [Plaintiff] running
up the exit ramp from the officers.”
(Id. ¶ 15.)
“[Defendant Moore] initiated a foot pursuit for resisting a
public officer and suspicion of narcotics[,] and issued verbal
commands like ‘stop, police[,]’ ‘you’re under arrest[,]’ and ‘get
down.’” (Id. ¶ 16.)
Plaintiff did not comply with Defendant
Moore’s commands, but “proceeded to run up the ramp, and jump over
-8-
a three-foot fence.”
(Id. ¶ 17.)
Defendant Moore “chas[ed] the
Plaintiff and yell[ed] verbal commands to ‘stop, police[,]’ ‘you’re
under arrest[,]’ and ‘get down[.]’”
(Id. ¶ 18.)
At one point during the foot pursuit, Plaintiff “ran straight
into a dense hedgerow of bushes” (id. ¶ 19) and “crouched down”
(id. ¶ 27) “in the fetal position with his back to [Defendant
Moore]” (id. ¶ 20).
“[Defendant Moore] could tell [Plaintiff] was
doing something with his hands but could not tell what it was.”
(Id.)
Defendant
Moore
Plaintiff did not adhere.”
yelled
more
(Id.)
commands,
“to
which
the
“The Plaintiff then came to his
feet and ran away from [Defendant Moore] again.”
(Id. ¶ 21.)
Defendant Hannon arrived on the scene, and Defendant Moore “chased
the Plaintiff through the brush.”
(Id. ¶ 21.)
“[Defendant Moore]
continued to follow the Plaintiff on foot, while continuously
yelling commands.”
(Id. ¶ 22.)
When Defendant Moore finally caught up with Plaintiff, “[he]
tackled [Plaintiff] to the ground,” and “placed handcuffs on him
and told him he was under arrest.”
(Id.)
“During this time the
Plaintiff was passively resisting by not listening to [Defendant
Moore’s] commands and directions.” (Id. ¶ 23.) “[Defendant Moore]
had many abrasions on [his] arms and legs resulting from the
chase.”
(Id. ¶ 24.)
“As [Defendant Moore] was detaining the Plaintiff, [Defendant]
Caviness was coming on to the scene by vehicle.”
-9-
(Id. ¶ 25.)
“[Defendant Moore] did not observe any force applied by . . .
[Defendant] Caviness.”
(Id. ¶ 26.)
Defendant Moore “then radioed
for more officers, as well as a K9 Unit to check out the area where
the Plaintiff was crouched down to see if the Plaintiff had
discarded contraband.”
(Id. ¶ 27.)
That search revealed “a Crown
Royal bag with a trafficking amount of cocaine buried loosely in
the dirt area where [Defendant Moore] [had] observed the Plaintiff
laying down in the fetal position.”
(Id. ¶ 28.)
Because tactical
medic Kerry Cross (“Medic Cross”) “was already on the scene,”
Defendant Moore requested that Medic Cross evaluate Plaintiff.
(Id. ¶ 31.)2
Defendant Moore reports that “[i]t is typical for
those who resist and flee to fain injury as a means to further
delay and prolong the process of transfer to the jail.”
(Id.)
Officers then transported Plaintiff and Ms. Haizlip to the jail.
(Id. ¶ 32.)3
At
the
jail,
Defendant
Plaintiff and Ms. Haizlip.
Moore
assisted
(Id. ¶ 33.)
with
processing
During processing,
“Plaintiff and Ms. Haizlip were hard to deal with,” and “talk[ed]
2
Medic Cross asserts that “[w]hen [he] first arrived on scene
[he] . . . found [Plaintiff] in custody sitting on the curb” and
“alert.” (Docket Entry 57, ¶ 7.) Medic Cross further asserts that
he “then attempted to examine the Plaintiff,” but that “Plaintiff
refused treatment.” (Id. ¶¶ 8-9.)
3
Defendant Moore provides no other details regarding the
alleged search of Plaintiff. (See Docket Entry 53.)
-10-
over [Defendant] Alston and [Defendant Moore].”
(Id. ¶ 34.)
In
that regard, Defendant Moore asserts:
The standard booking procedure when arriving at the jail
is to have the person in custody sit on a bench and have
them handcuffed to a rail. For the magistrate hearing
where bond will be set, the person is taken off of the
rail and into a room where two magistrates are. This
protocol was followed . . . with the Plaintiff and Ms.
Haizlip.
During the magistrate hearing neither the
Plaintiff nor Ms. Haizlip were in handcuffs. At this
point[,] both had calmed down, however once their bond
was set, both became agitated and riled up. At one point
after bond had been set, [Defendant] Alston and Ms.
Haizlip were in a heated discussion.
The Plaintiff
appeared to take offense to this, and began challenging
[Defendant] Alston. The Plaintiff called [Defendant]
Alston derogatory names, was clenching his fists, and was
standing him up in an aggressive fighting stance. These
were all signs of a pre-assault, meaning a person is
either going to run or assault. During this time[,] the
Plaintiff was not handcuffed. [Defendant] Alston
proceeded to take the Plaintiff to the ground as standard
procedure dictates. During this time I told Ms. Haizlip
to sit down because she was trying to get involved in the
situation between [Defendant] Alston and the Plaintiff.
I proceeded to handcuff Ms. Haizlip back to the rail.
After doing this, I went over to [Defendant] Alston to
assist him in picking up [Plaintiff]. [Defendant] Alston
and I walked the Plaintiff over to a cell. I opened the
cell door and [Defendant] Alston pushed the Plaintiff
into the cell. When the Plaintiff was pushed into the
cell, he never came in contact with any fixed objects,
nor did he fall to the ground. The Plaintiff spat on
[Defendant] Alston and then I closed the door.
(Id. ¶¶ 35-51 (paragraph numbering and line spacing omitted).)
Defendant Moore further denies “observ[ing] any signs of injury” to
Plaintiff.
(Id. ¶ 55.)
-11-
iii. Defendant Caviness
Defendant Caviness’s version of the relevant events picks up
when
Defendant
Alston
reported
suspicious
vehicle
activity.
Defendant Caviness reports that:
“[Defendant] Alston called in suspicious vehicle activity,”
and “identified the vehicle over the radio.”
(Docket Entry 54,
¶ 4.) “[Defendant Caviness] saw the vehicle [Defendant] Alston was
radioing about” (id. ¶ 5), and “[she] proceeded to follow the
vehicle, along
with
other
officers”
(id.
¶
6).
“[Defendant
Caviness] was able to see when [another officer] turned his lights
on, and [she] could hear the details of the pursuit via radio,” but
“[she] was unable to see the wreck that occurred at the . . .
[e]xit.”
(Id. ¶ 7.)
“As [she] was coming upon the wreck,
[Defendant Caviness] saw the Plaintiff running over to a fence away
from officers.”
(Id. ¶ 8.)
“[Defendant Caviness] proceeded to go
off the road and loop around . . . in an attempt to set up a
perimeter.”
(Id. ¶ 9.)
“Officers had walked the Plaintiff from
the wooded area . . . and sat him down on the curb when [Defendant
Caviness] arrived.”
(Id. ¶ 10.)
Defendant Caviness questioned Plaintiff, but he “ignored [her]
questions and . . . curs[ed] and sp[oke] in a rude manner towards
[her] and other officers.”
(Id. ¶ 11.)
Plaintiff off the curb to search him.
“Officers lifted the
Plaintiff became visibly
agitated and was still mouthing off to the officers while they
-12-
searched him.”
(Id. ¶ 13.)
“While officers were attempting to sit
the Plaintiff back down, Plaintiff . . . stiffen[ed] his body and
[took] steps backward to avoid sitting.”
(Id. ¶ 14.)
However,
“[i]t was crucial for the Plaintiff to remain seated due to his
history of flight, and the fact that being handcuffed would not
hinder his ability to engage in another foot pursuit.”
(Id.)
“Due
to Plaintiff’s resisting, . . . officers [had] difficulty getting
the Plaintiff to sit down, so [Defendant Caviness] stuck [her] foot
out to prevent [Plaintiff] from stiffening his body and [to] allow
the officers to lower him to the ground.”
(Id. ¶ 15.)
“[Defendant
Caviness] did not kick [Plaintiff] or attempt to kick [Plaintiff]
in any way.”
(Id.)
“During this entire time, the Plaintiff was
uncooperative, belligerent, angry, and consistently physically
resisting.”
(Id. ¶ 16.)
“[Defendant Caviness] do[es] not recall
the Plaintiff having any bruises or bleeding,” and she “did not see
any officers drag the Plaintiff on the ground.”
(Id. ¶¶ 18-19.)
iv. Defendant Hannon
Defendant Hannon’s version of the relevant events begins when
he heard through the radio of the officers’ involvement in a chase.
Defendant Hannon reports that:
“[He] was on patrol when [he] heard over the radio that the
narcotics unit was in a chase, approaching [an] . . . exit.”
(Docket Entry 55, ¶ 5.)
“[Defendant Hannon] was in the area so
[he] made the decision to assist [his] fellow officers.”
-13-
(Id.
¶ 6.)
“When [he] arrived on scene, [he] observed the Plaintiff
fleeing up the . . . exit ramp from the vehicle.”
(Id. ¶ 7.)
“[Defendant Hannon] also observed [Ms. Haizlip] handcuffed at the
bottom of the ramp.”
(Id.)
“[Defendant Hannon] then observed the
Plaintiff running . . . towards [a] fence,” “scale the fence,” and
“bury something in a bush filled area.”
(Id. ¶¶ 8-9.)
“During the
entire chase[, Defendant Hannon] was able to hear officers yelling
at the Plaintiff.”
(Id. ¶ 11.)
“When [Defendant Hannon] arrived where the Plaintiff was being
held, [Plaintiff] was in handcuffs and sitting on the sidewalk.”
(Id. ¶ 13.)
Defendant Hannon did not assist in Plaintiff’s actual
arrest, touch Plaintiff at this time, or drag Plaintiff across any
ground.
(Id. ¶ 14.)
stand by.”
Instead, Defendant Hannon “was . . . told to
(Id.)
While sitting on the sidewalk, Plaintiff “became agitated,”
“[ran] his mouth,” “curse[d],” and “urinate[d] in his pants.” (Id.
¶ 15.) Defendant Hannon “assisted the Plaintiff off of the curb by
picking him up by one arm so that he would go from sitting to
standing,” and “then searched the Plaintiff per normal procedure.”
(Id. ¶¶ 17-18.)
vehicle on
a
Defendant Hannon then placed Plaintiff in his
“foil
and
cardboard seat”
and
“transported
the
Plaintiff to [jail].” (Id. ¶¶ 19-20.) “During the entire drive[,]
the
Plaintiff
was
running
his
mouth.”
(Id.
¶
20.)
“Once
[Defendant Hannon and Plaintiff] arrived at the jail, [Defendant
-14-
Hannon] got the Plaintiff out of the vehicle, walked him into the
jail, un-cuffed one [of Plaintiff’s] hand[s] and cuffed him to
something in the jail per protocol.”
(Id. ¶ 21.)
III. ANALYSIS
A. Summary Judgment Standard
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.
“In determining whether a genuine issue of material fact
exists, . . . the evidence [must be viewed] in the light most
favorable to the nonmoving party.
However, a nonmovant cannot
defeat summary judgment with merely a scintilla of evidence.”
American Arms Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009)
(citation omitted).
“If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)
(citations omitted).
The party seeking summary judgment has the
initial burden to show “an absence of evidence to support the
nonmoving party’s case.”
325 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
Additionally, even for unopposed summary judgment
motions, the moving party must establish “that it is entitled to a
judgment as a matter of law.”
Custer v. Pan Am. Life Ins. Co., 12
F.3d 410, 416 (4th Cir. 1993) (internal quotation marks omitted).
-15-
In this case, Plaintiff failed to respond to the Summary
Judgment Motion
(see
Docket
Entries
dated
Feb.
15,
present), despite notice to do so (see Docket Entry 59).
2016, to
However,
Plaintiff’s “verified [Amended C]omplaint is the equivalent of an
opposing
affidavit
for
summary
judgment
purposes,
when
the
allegations contained therein are based on personal knowledge.”
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (emphasis
omitted).
therefore
The undersigned United States Magistrate Judge will
consider
the
verified
allegations
in
the
Amended
Complaint in resolving the Summary Judgment Motion.4
Pursuant
to
42
U.S.C.
§
1983,
Plaintiff
alleges
that
Defendants violated his constitutional rights through the use of
excessive force.
(See Docket Entry 28 at 2-3.)
“Section 1983 of
Title 42 creates a cause of action against any person who, acting
under color of state law, abridges a right arising under the
Constitution or laws of the United States.” Cooper v. Sheehan, 735
F.3d 153, 158 (4th Cir. 2013). Defendants seek summary judgment on
the grounds that (1) the applicable statute of limitations bars
4
Although Plaintiff verified the Amended Complaint (see
Docket Entry 28 at 5), he did not verify the Complaint (see Docket
Entry 2).
The undersigned United States Magistrate Judge will
therefore not consider the allegations in the Complaint in
resolving the Summary Judgment Motion. See Aloisi v. Morgan, No.
86-6717, 804 F.2d 1250 (table), 1986 WL 18016, at *1 (4th Cir. Nov.
11, 1986) (unpublished) (recognizing that “if [the plaintiff] had
filed a verified complaint, he could . . . rely on his pleading in
resisting a motion for summary judgment”).
-16-
Plaintiff’s excessive force claim against the Search Defendants,
and (2) qualified immunity protects Defendants from suit in this
action.
B. The Statute of Limitations Defense
The Search Defendants contend that the events underlying
Plaintiff’s
excessive
force
claim
against
them
occurred
on
September 7, 2011, and that the applicable statute of limitations
bars that claim.
(Docket Entry 53, ¶¶ 6, 53; Docket Entry 54, ¶ 4;
Docket Entry 55, ¶ 5; see also Docket Entry 52 at 5-9.)
In
contrast, the Amended Complaint asserts that the events giving rise
to Plaintiff’s excessive force claim all occurred on September 8,
2011, rather than on September 7, 2011.
(Docket Entry 28 at 2; see
also id. at 1 (alleging that “[t]he correct date for the excessive
force claim is actually on 9-8-11”).)
Under either date, however,
the applicable statute of limitations does not bar Plaintiff’s
excessive force claim against the Search Defendants.
“There is no federal statute of limitations for [Section] 1983
claims, so the state limitations period which governs personal
injury actions is applied.”
Lewis v. Richmond City Police Dep’t,
947 F.2d 733, 735 (4th Cir. 1991) (per curiam).
North Carolina has
a three-year statute of limitations for personal injury claims.
N.C. Gen. Stat. § 1-52.
“[T]he Federal Rules of Civil Procedure
[(the “Rules”)] govern the commencement of . . . suit[s] [involving
-17-
federal question jurisdiction] for purposes of tolling the state
statute of limitations.” Lewis, 947 F.2d at 735.
Under the Rules,
“[a] civil action is commenced by filing a complaint with the
court.”
Fed. R. Civ. P. 3.
Of particular importance here, Rule
6(a) provides that, when computing a time period “stated in days or
a longer unit of time[,] . . . include the last day of the period,
but if the last day is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is not
a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).
Applying these Rules, “[a]s long as the complaint is deemed filed
within the limitations period, the action is timely.”
Lewis, 947
F.2d at 735.
Here, even assuming that the events giving rise to Plaintiff’s
excessive force claim against the Search Defendants occurred on
September 7, 2011, the relevant three-year statute of limitations
period would not bar this action.5
September 7, 2014, the last day
of the limitations period, fell on a Sunday.
Under Rules 3 and
6(a), Plaintiff therefore had until Monday, September 8, 2014, to
5
Plaintiff does not dispute that he became aware of his
excessive force claim against the Search Defendants, and it
therefore “accrued” for statute of limitations purposes, on the
date that the Search Defendants allegedly used excessive force
against him. See Nasim v. Warden, Md. House of Corr., 64 F.3d 951,
955 (4th Cir. 1995) (en banc) (explaining that a plaintiff’s
Section 1983 claim accrues, and the statute of limitations runs,
from the date on which he “possesses sufficient facts about the
harm done to him that reasonable inquiry will reveal his cause of
action”).
-18-
file the Complaint.
See Lewis, 947 F.2d at 734-35, 735 n.1
(concluding that, because the last day of the limitations period
ended on a Saturday, under Rules 3 and 6(a), the plaintiff had
until the following Monday to file his Section 1983 excessive force
claim); see also Sain v. City of Bend, 309 F.3d 1134, 1138 (9th
Cir. 2002) (holding that, “Rules 3 and 6(a), taken together,
dictate that a Sunday not be counted in a [Section] 1983 action
when that Sunday is the last day in the [limitations] period”).
The Complaint shows a filing date of September 8, 2014.
Entry 2 at 1.)
(Docket
The applicable three-year statute of limitations
therefore does not bar Plaintiff’s excessive force claim against
the Search Defendants.
Moreover, even without a Rule 6(a) extension, the Complaint
would remain timely. The envelope containing the Complaint states,
“Mailed From Tabor Correctional Inst[itute].” (Docket Entry 2-1 at
1.)
Plaintiff thus initiated this action while incarcerated.
For an incarcerated plaintiff proceeding pro se, an action is
deemed filed “when the [plaintiff] delivers his pleading to prison
authorities for forwarding to the court clerk.” Lewis, 947 F.2d at
735.
Numerous reasons exist for this “bright line rule”:
[Pro se prisoners] are unable to monitor the process of
the mails as are other litigants. They are unaware of
delays and unable to rectify any problems even if they
were apprised of them. They cannot deliver a copy of
their document to the clerk by hand, and do not have
access to express mail services.
They must rely on
correctional authorities, who may be motivated to delay
-19-
the filing. If the pleading is delayed, they have no way
to determine the cause and possibly obtain evidence to
support a finding of excusable neglect. Because they are
acting pro se, they do not have an attorney who can
monitor the process for them. Furthermore, correctional
facilities maintain records of outgoing prisoner mail,
thereby minimizing disputes and uncertainties regarding
the moment of filing.
Id. at 735-36.
Due to Plaintiff’s incarceration, he “commenced” this action,
for
statute
of
limitations
purposes,
when
he
delivered
the
Complaint to prison officials for mailing, rather than when the
Clerk filed the Complaint in this Court.
See id.
The record
establishes that the Clerk stamped the Complaint as received at
1:20 p.m. on Monday, September 8, 2014.
(Docket Entry 2-1 at 1.)
In order for the Clerk to have received the Complaint on September
8, 2014, Plaintiff must have delivered the Complaint to prison
officials for mailing prior to that day.
commenced
this
action
by
delivering
Thus, Plaintiff timely
the
Complaint
officials for mailing before September 8, 2014.
to
prison
See Lewis, 947
F.2d at 735-36.
C. The Qualified Immunity Defense
Defendants further contend that, pursuant to applicable law,
they enjoy qualified immunity from Plaintiff’s excessive force
claim. (Docket Entry 51 at 2.)
incidents
of
alleged
The Amended Complaint details four
excessive
force,
sometime after Plaintiff’s arrest.
-20-
all
of
which
occurred
(See Docket Entry 28 at 2-3
(alleging that Defendants used excessive force against Plaintiff
after “Plaintiff was apprehended, handcuffed and arrested”).) “The
doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
“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)).
In analyzing qualified immunity, 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.”
Cir. 2013).
prong first.
Williams v. Ozmint, 716 F.3d 801, 805 (4th
The Court possesses discretion to address either
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)
(en banc).6
6
Defendants only address the first prong of the qualified
immunity analysis. (See Docket Entry 52 at 9-14.) Accordingly,
-21-
Plaintiff cites the “Eight[h] Amendment/Cruel and Unusual
Punishment” as the predicate for his excessive force claim (Docket
Entry 28 at 2), but the Eighth Amendment does not apply until after
conviction and sentence, Lee v. O’Malley, 533 F. Supp. 2d 548, 552
n.5 (D. Md. 2007).7
Plaintiff’s criminal case clearly had not
reached the point of a formal adjudication of guilt at the time of
the events giving rise to his excessive force claim.
Even
though
the
Eighth
Amendment’s
cruel
and
unusual
punishment prohibition does not apply to arrestees / pretrial
detainees
such
Fourteenth
as
Plaintiff,
Amendment
excessive force.
the
protects
them
Due
Process
from
an
clause
officer’s
of
use
the
of
See Kingsley v. Hendrickson, ___ U.S. ___, ___,
135 S. Ct. 2466, 2475 (2015).
In Kingsley, the Supreme Court
observed that “pretrial detainees (unlike convicted prisoners)
cannot be punished at all.”
Id. at ___, 135 S. Ct. at 2475.
Accordingly, a pretrial detainee can “prevail [on an excessive
force claim] by showing that the [defendant’s] actions are not
‘rationally
related
to
a
legitimate
nonpunitive
governmental
purpose’ or that the actions ‘appear excessive in relation to that
purpose.’”
Id. at ___, 135 S. Ct. at 2473 (quoting Bell v.
this recommendation will focus on whether Defendants committed a
constitutional violation of Plaintiff’s rights.
7
The Eighth Amendment provides, “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII.
-22-
Wolfish, 441 U.S. 520, 561 (1979)).
Ultimately, a standard of
objective reasonableness applies to a pretrial detainee’s excessive
force claim.
Id. at ___, 135 S. Ct. at 2472-73.
The Supreme Court has provided several factors to analyze “the
reasonableness or unreasonableness” of the alleged forced used:
the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff’s injury; any effort made by the officer to
temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably
perceived by the officer; and whether the plaintiff was
actively resisting.
Id. at ___, 135 S. Ct. at 2473 (citing Graham v. Connor, 490 U.S.
386,
396
(1989)).
“illustrate
the
Although
types
of
not
exclusive,
objective
these
circumstances
relevant to a determination of excessive force.”
factors
potentially
Id.
In addition, the determination of whether an officer used
excessive force must be made “from the perspective of a reasonable
officer on the scene, including what the officer knew at the time,
not with the 20/20 vision of hindsight.”
Id.
In the jail setting,
“court[s] must also account for the ‘legitimate interests that stem
from the government’s need to manage the facility in which the
individual is detained,’ appropriately deferring to ‘policies and
practices that in the judgment’ of jail officials ‘are needed to
preserve
internal
order
institutional security.’”
and
discipline
and
to
maintain
Id. (brackets omitted) (quoting Bell,
441 U.S. at 540, 547).
-23-
i. The “Search” Incident
Plaintiff
first
alleges
excessive
force
Defendants prior to his transport to the jail.
by
the
Search
In that regard, the
record establishes that Plaintiff and Ms. Haizlip attempted to
elude officers in a vehicle chase.
Docket
Entry
54,
¶¶
5-7).)
(Docket Entry 53, ¶¶ 12-15;
After
the
vehicle
chase
Plaintiff exited the SUV and led officers on a foot chase.
Entry 53, ¶¶ 15-23.)
ended,
(Docket
During the foot chase, Plaintiff briefly
stopped (id. ¶¶ 20-21) and “bur[ied] something in a bush filled
area” (Docket Entry 55, ¶ 9), where officers later recovered
narcotics buried loosely in the dirt (Docket Entry 53, ¶ 28).
While pursuing Plaintiff on foot, Defendant Moore issued commands
to Plaintiff and ordered him to stop fleeing numerous times.
¶¶ 16, 18, 20, 22-23.)
(Id.
However, Plaintiff ignored Defendant
Moore’s commands and kept running.
(Id. ¶¶ 17, 19-22.)
When
Defendant Moore finally caught Plaintiff, he “tackled [Plaintiff]
to the ground” and “then placed handcuffs on [Plaintiff] and told
him he was under arrest.”
(Id. ¶ 22.)
After Plaintiff’s apprehension and arrest, officers searched
Plaintiff before transporting him to jail.
(Docket Entry 28 at 2;
see also Docket Entry 54, ¶ 13; Docket Entry 55, ¶¶ 17-18, 20.)
At
the time officers initiated the search, “Plaintiff was . . . seated
on [a] curb.”
2.)
(Docket Entry 54, ¶ 12; see also Docket Entry 28 at
“Officers lifted the Plaintiff off the curb to search him,”
-24-
but “Plaintiff became visibly agitated” and “mouth[ed] off to the
officers” during the search.
(Docket Entry 54, ¶ 13.)
Officers
“told [Plaintiff] to sit back down after he was searched.” (Docket
Entry 28 at 2.)
Plaintiff “stiffen[ed] his body and [took] steps
backward to avoid sitting.”
(Docket Entry 54, ¶ 14.)
“Due to
Plaintiff’s resisting, . . . officers [had] difficulty getting
[him] to sit down.”
(Id. ¶ 15.)
At this point, the parties’ versions of the events differ.
The Amended Complaint asserts that, as Plaintiff attempted to sit
down, “[Defendant] Caviness kicked [him] in the right side of his
leg,” while at “the same time [Defendant] Hannon and [Defendant]
Moore pull[ed] and drag[ged] the [P]laintiff to and on the ground
(concrete).”
further
(Docket Entry 28 at 2-3.)
asserts
that
the
force
The Amended Complaint
applied
Plaintiff’s elbows and left forearm.
caused
abrasions
to
(Id. at 3.)
In contrast, Defendant Moore reports that he “did not use
physical force against [Plaintiff] with the exception of taking
[Plaintiff] to the ground and forcibly handcuffing him” (Docket
Entry 53, ¶ 26), that he “did not observe any force applied by
. . . [Defendant] Caviness” (id.), and that he did not “observe any
signs of injury” to Plaintiff (id. ¶ 55).
Further, Defendant
Caviness reports that she “simply placed [her] foot out[, and]
. . . did not kick [Plaintiff] or attempt to kick him in any[ ]way”
(Docket Entry 54, ¶ 15), that she “stuck [her] foot out to prevent
-25-
[Plaintiff] from stiffening his body and [to] allow the officers to
lower [Plaintiff] to the ground” (id.), that she “did not see any
officers drag the Plaintiff on the ground” (id. ¶ 19), and that she
does “not recall the Plaintiff having any bruises or bleeding in
anyway” (id. ¶ 18).
In addition, Defendant Hannon reports that he
did not “drag the Plaintiff across any ground” (Docket Entry 55,
¶ 14), that “[he] assisted the Plaintiff off of the curb by picking
[Plaintiff] up by one arm so that he would go from sitting to
standing” (id. ¶ 17), and that he “searched the Plaintiff per
normal procedure” (id. ¶ 18).
At this stage of the proceedings, the question becomes whether
the record - when viewed in the light most favorable to Plaintiff i.e., assuming that Defendant Caviness kicked the right side of
Plaintiff’s leg, while Defendant Moore and Defendant Hannon pulled
and
dragged
Plaintiff
to
and
on
the
ground,
objectively unreasonable under the circumstances.
qualifies
as
See Kingsley,
___ U.S. at ___, 135 S. Ct. at 2473 (holding that “a pretrial
detainee must show only that the force purposely or knowingly used
against him was objectively unreasonable,” and that “objective
reasonableness turns on the ‘facts and circumstances of each
particular case’” (quoting Graham, 490 U.S. at 396)); see also
Grisson v. City of Fayetteville, No. 5:14-CV-272, 2015 WL 5797661,
at *4 (E.D.N.C. Oct. 2, 2015) (unpublished) (noting that “it is
appropriate to determine whether the force used was objectively
-26-
reasonable in full context, as a segmented view of the events
‘misses the forest for the trees’” (quoting Smith v. Ray, 781 F.3d
95, 101 (4th Cir. 2015))).
The first Kingsley factor (the relationship between the need
for the use of force and the amount of force used) weighs heavily
in favor of the Search Defendants.
Defendant Caviness reported
that “[i]t was crucial for the Plaintiff to remain seated due to
his history of flight, and the fact that being handcuffed would not
hinder his ability to engage in another foot pursuit.”
Entry 54, ¶ 14.)
(Docket
Moreover, although Plaintiff reported attempting
to sit down at the same time the Search Defendants used force to
compel him to sit, the Amended Complaint does not dispute that,
before Plaintiff’s attempt to sit down, he actively resisted the
officers’ efforts to put him on the ground.
(See Docket Entry 28;
see also Docket Entry 54, ¶ 14 (asserting that, “[w]hile officers
were attempting to sit the Plaintiff back down, Plaintiff would
stiffen his body and take steps backward to avoid sitting”); id.
¶
16
(asserting
that,
during
the
entire
search
encounter,
“Plaintiff was uncooperative, belligerent, angry, and consistently
physically resisting”).)
Importantly, Plaintiff has provided no evidence to suggest
that, before the Search Defendants applied force to put him on the
ground, he had made them aware that he would comply with the
officers’ orders to sit.
“The law cannot demand that officers be
-27-
mind readers,” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)
(explaining that the officers could not be charged with knowing of
the plaintiff’s medical history because the plaintiff had not
informed them of such), and nothing in the record here suggests
that
the
Search
Defendants
should
have
known
that
Plaintiff
intended to comply with their attempts to put him on the ground at
the time they applied force, see Kingsley, ___ U.S. at ___, 135 S.
Ct.
at
2473
standard
for
(applying
Graham
analyzing
claim
Fourth
of
Amendment
excessive
reasonableness
force
under
the
Fourteenth Amendment’s Due Process Clause); Graham, 490 U.S. at 396
(explaining that, “[w]ith respect to a claim for excessive force,
the
same
standard
(emphasis added)).
of
reasonableness
at
the
moment
applies”
In other words, Plaintiff’s recent flight,
coupled with his physical resistance, provided an objectively
reasonable need for the Search Defendants to use force to put
Plaintiff
back
on
the
ground,
notwithstanding
Plaintiff’s
contention that he attempted to sit down at the same time that
officers applied force.
See Graham v. Gagnon, ___ F.3d ___, ___,
2016 WL 4011156, at *4 n.1 (4th Cir. 2016) (recognizing that
“[q]ualified immunity does not shield officials from liability for
all of their mistakes, but it does shield them when their mistakes
were reasonable”); Mills v. Rich, No. 7:13-CV-138, 2015 WL 5139198,
at *5 (E.D.N.C. Sept. 1, 2015) (unpublished) (concluding that a
“closed-fist punch to [the plaintiff’s] head and rough takedown may
-28-
indeed have been more than what was necessary when considering the
circumstances
in
hindsight,”
but
that,
“[u]nder
the[]
circumstances, and having considered the officers’ actions in
context and from the perspective of a reasonable officer on the
scene, . . . [the officers] made at worst mistaken but reasonable
judgments”).
Furthermore, the amount of force that the Search Defendants
used remained proportional to the need to place Plaintiff on the
ground.
In that regard, Plaintiff reports that Defendant Caviness
kicked him in the leg, and that Defendant Moore and Defendant
Hannon dragged and pulled him to and on the ground.
28 at 2-3.)
(Docket Entry
Defendant Caviness made contact with Plaintiff’s leg
“to prevent him from stiffening his body and [to] allow the
officers to lower him to the ground.”
(Docket Entry 54, ¶ 15.)
Kicking Plaintiff in the leg, while Defendant Moore and Defendant
Hannon pulled and dragged Plaintiff to and on the ground amounts to
a reasonable application of force to ensure Plaintiff resumed
sitting to lessen his risk of flight.
See Skinner v. Sproul, No.
1:14-CV-174, 2016 WL 796015, at *11-13 (M.D. Ga. Feb. 26, 2016)
(unpublished) (recommending that summary judgment be entered in
favor of the defendants on the plaintiff’s excessive force claim
where the defendants twice took the plaintiff to the floor, carried
him into the hallway, and forcibly handcuffed him, because the
undisputed evidence revealed that the plaintiff physically resisted
-29-
the defendants and did not cooperate with their orders, thereby
necessitating
the
use
of
that
physical
force
to
gain
the
plaintiff’s compliance), recommendation adopted in relevant part,
slip op. (M.D. Ga. Mar. 28, 2016).
Plaintiff suffered no major
injuries from the Search Defendants’ application of force, and he
does not allege that the Search Defendants continued using force
after putting him on the ground.
(See Docket Entry 28.)
Under
these circumstances, “the relationship between the need for force
and the amount of force used to restore discipline was closely
matched.”
See Ellenburg v. Henderson Cty. Jail, 1:14-CV-290, 2016
WL 1354980, at *4 (W.D.N.C. Apr. 5, 2016) (unpublished) (finding
that the force applied remained proportional to its need where the
defendant only used force after the plaintiff refused an order to
stop fighting, the force ended when its need subsided, and “no
other means of force such as pepper spray, batons, or fists were
used”).
The second Kingsley factor (the extent of the plaintiff’s
injury) also weighs in favor of the Search Defendants. The Amended
Complaint alleges that Plaintiff suffered “abrasions” to his elbows
and left forearm from the Search Defendants’ actions.
Entry 28 at 2-3.)
(See Docket
Notably, the Amended Complaint does not allege
that the abrasions required medical treatment.
-30-
(See Docket Entry
28 at 2-3.)8
This relatively minor injury, combined with the lack
of injury to Plaintiff’s leg or any other body part, indicates that
the Search Defendants did not apply a significant amount of force
when putting Plaintiff back on the ground.
See Wilkins v. Gaddy,
559 U.S. 34, 37 (2010) (discussing excessive force analysis under
the Eighth Amendment and explaining that, “[t]he extent of injury
suffered . . . may suggest whether the use of force could plausibly
have been thought necessary in a particular situation” and “may
also provide some indication of the amount of force applied”
(internal
brackets
and
quotation
marks
omitted));
see
also
Ellenburg, 2016 WL 1354980, at *4 (finding the extent of the
plaintiff’s injury “minimal” even where the defendant shot the
plaintiff with a taser that caused a cut in the plaintiff’s side).
The third Kingsley factor (any effort made by the officer to
temper or limit the amount of force) also weighs in favor of the
Search Defendants.
Defendant Caviness reports that Plaintiff
physically resisted the officers’ attempts to sit him on the
ground.
(Docket Entry 54, ¶¶ 14-16.)
resisted
those
attempts,
did
the
Search
necessary force to compel Plaintiff to sit.
Only after Plaintiff
Defendants
use
the
(See id. ¶ 15.)
The
record thus establishes that the Search Defendants attempted to
8
Plaintiff refused Medic Cross’s offer to provide him medical
attention on the scene (Docket Entry 57, ¶¶ 7-9), but the record
does not reveal whether that refusal occurred before or after the
Search Defendants’ application of force.
-31-
gain Plaintiff’s compliance before applying the necessary force to
lower him into a seated position, and that, once the Search
Defendants’
force.
See
gained
Plaintiff’s
compliance, they
stopped using
Ellenburg, 2016 WL 1354980, at *4 (finding that the
third Kingsley factor favored the defendant where he ordered the
plaintiff to stop fighting before employing force).
The fourth Kingsley factor (the severity of the security
problem at issue) also weighs in favor of the Search Defendants.
The record establishes that Plaintiff put the safety of the public
and officers at serious risk by participating in a vehicle chase
and running from officers on foot, all while ignoring officers’
repeated commands to stop. (Docket Entry 53, ¶¶ 6-23; Docket Entry
54, ¶¶ 5-8; Docket Entry 55, ¶¶ 5-11.)
Further, Defendant Moore
suffered abrasion injuries as a result of the foot chase (Docket
Entry 53, ¶ 24), and Plaintiff continued resisting officers even
after his apprehension and arrest (id. ¶ 23; see also Docket Entry
54, ¶¶ 11, 13-16). Additionally, Plaintiff’s feet remained unbound
during the search incident, heightening his risk of flight.
See
Graham, 490 U.S. at 396 (observing that the plaintiff’s “attempt[s]
to evade arrest by flight” factors into the reasonableness of an
officer’s use of force in detaining a suspect).
Under these
circumstances, Plaintiff presented a serious flight risk, and any
further flight would present further risk of injury to Plaintiff,
the officers, and the public.
See Mills, 2015 WL 5139198, at *5
-32-
(ruling that the “[e]scape of a detainee would be a serious
security issue” (citing McKenney v. Harrison, 635 F.3d 354, 360
(8th Cir. 2011) (concluding that officers could use force to
prevent arrestee’s escape))).
The fifth Kingsley factor (the threat reasonably perceived by
the officer), also favors the Search Defendants.
Plaintiff’s
previous attempts to elude the officers increased the possibility
that
he
standing.
would
flee
again
if
officers
allowed
him
to
remain
As discussed above, Defendant Caviness conveys the
officers’ legitimate concerns that “[i]t was crucial for . . .
Plaintiff to remain seated due to his history of flight, and the
fact that being handcuffed would not hinder his ability to engage
in another foot pursuit.”
(Docket Entry 55, ¶ 14.)
If Plaintiff
escaped, officers would again need to pursue Plaintiff, increasing
the possibility of further injury.
Given Plaintiff’s proven
tendency to flee from officers, an objectively reasonable threat
existed that Plaintiff’s risk of flight increased if Plaintiff
remained standing.
The sixth Kingsley factor (whether the plaintiff actively
resisted) also favors the Search Defendants.
Plaintiff does not
dispute that he actively resisted the Search Defendants’ attempts
to sit him on the ground.
(See Docket Entry 28; see also Docket
Entry 54, ¶¶ 14, 16 (detailing Plaintiff’s resistance).)
discussed
above,
given
Plaintiff’s
-33-
noncompliance,
the
As
Search
Defendants lacked any reasonable basis to foresee that Plaintiff
would attempt to sit down at the same time that they applied force.
See generally Graham, 490 U.S. at 396 (recognizing that “not every
push or shove, even if it may later seem unnecessary” amounts to a
deprivation of a constitutional right).
In sum, all six Kingsley factors favor the Search Defendants.
The record evidence thus establishes that the amount of force the
Search Defendants’ applied to put Plaintiff on the ground did not
qualify as objectively unreasonable under the circumstances.
The
Court should therefore award summary judgment in favor of the
Search Defendants.
ii. The “Jail” Incidents
Plaintiff’s remaining allegations of excessive force involve
only Defendant Alston and concern events at the jail.
There, the
record establishes that, after Plaintiff and Ms. Haizlip arrived at
the jail, they “became aggravated” (Docket Entry 56, ¶ 20) and
“visibly angry towards [Defendant] Moore and [Defendant Alston]”
(id. ¶ 21; see also Docket Entry 53, ¶¶ 41-46).
While Plaintiff
remained free of handcuffs (Docket Entry 56, ¶ 22), he used an
“aggressive
tone”
towards
Defendant
Alston
(id.
¶
23),
and
approached Defendant Alston “in a fighting manner” (id. ¶ 24).
“Ultimately, the Plaintiff squared his body to [Defendant Alston]
and took an aggressive, fighting stance.”
-34-
(Id. ¶ 25.)
“These were
all signs of a pre-assault, meaning a person is either going to run
or assault.”
(Docket Entry 53, ¶ 43.)
“[Defendant Alston] attempted to escort [Plaintiff] back to
the bench where he had been sitting, but [Plaintiff] went back into
the corner, remained in an aggressive stance, and was clenching his
fists.” (Docket Entry 56, ¶ 26.)
“The Plaintiff also proceeded to
call [Defendant Alston] multiple racist names.”
(Id. ¶ 27.)
“Ms.
Haizlip then attempted to get involved, but [Defendant] Moore took
physical control of her and ensured that she remained on the
bench.” (Id. ¶ 28.)
“[Defendant Alston] continued to try and gain
control of the Plaintiff and the Plaintiff continued to take a
stance as if [he] wanted to physically fight.”
(Id. ¶ 29.)
“During this time, while Ms. Haizlip was handcuffed, she was still
attempting to get involved.”
(Id. ¶ 30.)
At this point, the parties’ versions of events come into
conflict.
The Amended Complaint asserts that “[Defendant] Alston
grab[bed] the Plaintiff and t[ook] him to the concrete floor
roughly and handcuff[ed] him behind his back.” (Docket Entry 28 at
3.)
In contrast, Defendant Alston asserts that he “was able to
bring the Plaintiff to the ground in normal fashion and place him
in handcuffs” (Docket Entry 56, ¶ 31), and Defendant Moore reports
that “[Defendant] Alston proceeded to take the Plaintiff to the
ground as standard procedure dictates” (Docket Entry 53, ¶ 45).
-35-
The Amended Complaint further asserts that Defendant Alston
“attemps [sic] to pick up the Plaintiff by the handcuffs,” and
“[a]t this point[, Defendant] Alston drops the Plaintiff back to
the concrete floor.”
Defendant
Alston
declarations)
that
(Docket Entry 28 at 3.)
nor
Defendant
Defendant
handcuffing him on the floor.
Moore
Alston
Conversely, neither
acknowledge
dropped
(in
their
Plaintiff
after
(See Docket Entries 53, 56.)
Uncontested evidence in the record establishes that Defendant
Moore assisted Defendant Alston with picking up Plaintiff from the
floor, and opened the holding cell door.
(Docket Entry 28 at 3.)
Defendant Alston “took [Plaintiff] over to the [holding] cell to
place him in it.”
(Docket Entry 56, ¶ 32.)
Because “Plaintiff
continued to physically resist being moved,” Defendant Alston
“grapple[d] [with] the Plaintiff face-to-face.”
(Id. ¶ 34.)
Here, again, the parties’ versions of events diverge.
The
Amended Complaint asserts that Defendant Alston grabbed Plaintiff
and “thr[ew] him into the holding cell roughly with the handcuffs
still on, into the wall further injuring [Plaintiff’s] already wrap
[sic] arms [from] the abrasion injuries.”
(Docket Entry 28 at 3.)
In contrast, Defendant Alston reports that he “put [Plaintiff] into
the holding cell,” and that “[a]t no point did [he] propel the
Plaintiff with force which caused the Plaintiff to fall, hit a wall
or come into contact with any other objects.”
¶ 34.)
(Docket Entry 56,
Defendant Moore reports that Defendant Alston “pushed the
-36-
Plaintiff into the cell” (Docket Entry 53, ¶ 50), and that, “[w]hen
the Plaintiff was pushed into the cell, [Plaintiff] never came in
contact with any fixed objects, nor did he fall to the ground” (id.
¶ 51).
After
Plaintiff
entered
the
cell,
uncontested
evidence
establishes that “[Defendant] Moore quickly closed the door to
prevent the Plaintiff from attempting to charge back out.” (Docket
Entry 56, ¶ 35.)
“Nevertheless, the Plaintiff immediately [spat]
in [Defendant Alston’s] direction close to [him].”
(Id. ¶ 36.)9
At no point did Plaintiff make a “request for EMS or medical
attention.”
(Id. ¶ 37.)
Under these circumstances, the Court must determine whether
the record - when viewed in the light most favorable to Plaintiff would permit the conclusion that Defendant Alston used excessive
force
by
(1)
taking
Plaintiff
“roughly”
to
the
ground
and
handcuffing him, (2) dropping Plaintiff to the ground after picking
him up by his handcuffs, and/or (3) throwing Plaintiff “roughly”
into the holding cell such that Plaintiff hit a wall.
a. The Handcuff Incident
The
first
application
of
force
at
the
jail
(accepting
Plaintiff’s account) involved Defendant Alston grabbing Plaintiff,
9
Defendant Moore reports that Plaintiff’s spit actually
contacted Defendant Alston. (Docket Entry 53, ¶ 51 (“The Plaintiff
spat on [Defendant] Alston and then I closed the door.”).)
-37-
taking him to the concrete floor “roughly,” and handcuffing him
behind his back.
(Docket Entry 28 at 3.)
With respect to that use
of force, the first Kingsley factor (the relationship between the
need for the use of force and the amount of force used) favors
Defendant Alston.
unhandcuffed,
The undisputed record reveals that, while
Plaintiff
engaged
in
verbally
and
physically
threatening conduct towards Defendant Alston, backed himself into
a corner, and readied himself for a fight.
(Docket Entry 56,
¶¶ 23-27, 29.) Furthermore, Ms. Haizlip twice attempted to involve
herself in the altercation between Defendant Alston and Plaintiff
(Id. ¶¶ 28, 30), increasing the security and safety threat to
others in the jail.
Defendant Alston did not use a weapon or
strike Plaintiff to gain control of the situation.
Entry 28 at 3.)
(See Docket
On this record, even when viewed in the light most
favorable to Plaintiff, the unrestrained, physically threatening
conduct of Plaintiff obliged Defendant Alston to use force to gain
control of the situation, and the force Defendant Alston applied
remained proportional to its need.
See Sims v. King Cty. Corr.
Facility, Civ. Action No. C15-662, 2016 WL 384828, at *4 (W.D.
Wash. Jan. 7, 2016) (unpublished) (recommending entry of summary
judgment in favor of the defendants on the plaintiff’s excessive
force claim, and observing that, where the plaintiff refused to be
cuffed, the defendants’ use of leg, arm, and wrist locks remained
a reasonable use of force to compel compliance), recommendation
-38-
adopted, slip op. (W.D. Wash. Feb. 1, 2016); Edmonds v. Boswell,
3:14CV30, 2015 WL 6674188, at *4-5 (E.D. Va. Oct. 30, 2015)
(unpublished) (concluding that an officer’s hand strike to push a
detainee away did not amount to excessive force where the detainee
“had been unruly and was . . . unrestrained,” which presented a
“moderate security threat” to the officer, and that the officers’
use of a taser remained reasonable where the detainee “actively
resisted any effort by the officers to restrain him,” and instead,
“physically attacked” an officer).
Likewise, the second Kingsley factor (the extent of the
plaintiff’s injury) favors Defendant Alston, as Plaintiff does not
allege
that
he
suffered
any
specific
injury
from
the
force
Defendant Alston used in taking him roughly to the ground and
handcuffing his arms behind his back.
See generally Landy v.
Isenberg, Civ. Action No. PWG-14-501, 2015 WL 5289027, at *4 (D.
Md. Sept. 9, 2015) (unpublished) (concluding that the plaintiff’s
injuries of “minor bruising to the wrists and a scrape to his knee”
demonstrated that officers applied minimum force to secure and
restrain him).
The third Kingsley factor (any effort made by the
officer to temper or to limit the amount of force) also favors
Defendant Alston, as the uncontested evidence reflects that, before
Defendant Alston took Plaintiff roughly to the ground, he first
“attempted to escort [Plaintiff] back to the bench where he had
been sitting.”
(Docket Entry 56, ¶ 26.)
-39-
However, “[Plaintiff]
went back into the corner, remained in an aggressive stance, and
. . . clench[ed] his fists.”
(Id.)
“[Defendant Alston] continued
to try and gain control of the Plaintiff,” but Plaintiff remained
aggressive.
(Id. ¶ 29.)
In other words, Defendant Alston made
attempts to gain control of Plaintiff before applying force.
The fourth and fifth Kingsley factors (the severity of the
security problem at issue, and the threat reasonably perceived by
the
officer)
further
favor
Defendant
Alston,
as
Plaintiff’s
unrestrained, combative behavior presented an objectively severe
security threat and danger to the safety of Defendant Alston and
others.
In
that
regard,
Plaintiff
called
Defendant
Alston
“derogatory names,” “clench[ed] his fists,” and faced Defendant
Alston “in an aggressive fighting stance” (Docket Entry 53, ¶ 42),
“all signs of a pre-assault, meaning a person is either going to
run or assault” (id. ¶ 43).
“[A] physical altercation between a
police officer and detainee is indicative of a . . . security and
safety issue.”
Mills, 2015 WL 5139198, at *4; see also Skinner,
2016 WL 796015, at *13 (observing that “the [d]efendants reasonably
perceived a threat given [the p]laintiff’s continuous refusal to
comply”).
Additionally, Ms. Haizlip attempted to interfere in the
altercation between Defendant Alston and Plaintiff (Docket Entry
53, ¶ 46), further increasing the safety and security threat to
Defendant Alston and Defendant Moore.
-40-
Lastly, the sixth Kingsley factor (whether the plaintiff
actively resisted) also favors Defendant Alston.
In short, the
undisputed evidence establishes that Plaintiff actively resisted
Defendant Alston’s attempts to escort him back to the bench by
backing himself into a corner and attempting to engage Defendant
Alston in a physical altercation. (Docket Entry 56, ¶¶ 25-27, 29.)
On balance, each of the six Kingsley factors favors Defendant
Alston
and
leads
to
the
conclusion
that
Defendant
Alston’s
application of force in grabbing Plaintiff, taking “him to the
concrete floor roughly[,] and handcuff[ing] him behind his back”
(Docket Entry 28 at 3) does not qualify as objectively unreasonable
under the circumstances.
See, e.g., Skinner, 2016 WL 796015, at
*13 (concluding that twice taking the plaintiff to the floor and
forcing him to wear handcuffs did not amount to excessive force
where the plaintiff did not comply with the defendants’ requests
that he “be handcuffed and walk back to his cell”).
Plaintiff has
therefore not shown that this particular application of force
amounted to excessive force in violation of his constitutional
rights.
b. The Dropping Incident
Defendant Alston’s second application of force identified by
Plaintiff involved Defendant Alston dropping Plaintiff to the
concrete floor while picking Plaintiff up by the handcuffs.
Docket Entry 28 at 3.)
(See
Specifically, Plaintiff has averred that
-41-
Defendant Alston dropped Plaintiff “in attemps [sic] to further
injure him.”
(Id.)
Again, Defendant Alston neither disputes nor
acknowledges dropping Plaintiff.
(See Docket Entry 56.)
Although “the [excessive force] standard is an objective one,
[and] the Court is not concerned with the officers’ motivation” in
applying
force,
Grisson,
2015
WL
5797661,
at
*4
(discussing
excessive force standard under the Fourth Amendment); see also
Kingsley,
U.S. at
, 135 S. Ct. at 2475 (holding that “the
appropriate standard for a pretrial detainee’s excessive force
claim is solely an objective one”), the allegation that Defendant
Alston dropped Plaintiff with intent to injure him - viewed in the
light most favorable to Plaintiff - establishes that the drop did
not result from Defendant Alston’s negligence, see Kingsley, ___
U.S. at ___, 135 S. Ct. at 2472 (concluding that “the defendant
must possess a purposeful, a knowing, or possibly a reckless state
of mind” for the plaintiff to succeed on an excessive force claim
because “‘liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process’” (emphasis in
original) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849
(1998))); see also Daniels v. Williams, 474 U.S. 327, 331 (1986)
(observing that, “[h]istorically, this guarantee of due process has
been applied to deliberate decisions of government officials to
deprive a person of life, liberty, or property” (emphasis in
original)).
-42-
Against
this
backdrop,
the
first
Kingsley
factor
(the
relationship between the need for the use of force and the amount
of force used) weighs in favor of Plaintiff.
The record reveals
that, when Defendant Alston dropped Plaintiff to the ground, he had
already forced Plaintiff face down on the ground and handcuffed him
behind his back.
(Docket Entry 28 at 3.)
Therefore, at the time
of the drop, no need existed to apply force (i.e., dropping
Plaintiff).
See generally Kingsley, ___ U.S. at ___, 135 S. Ct. at
2473 (recognizing that “‘the Due Process Clause protects a pretrial
detainee
from
the
use
of
excessive
force
that
amounts
to
punishment’” (quoting Graham, 490 U.S. at 395 n.10)).
The second Kingsley factor (the extent of the plaintiff’s
injury) favors Defendant Alston, as the Amended Complaint does not
allege that Plaintiff suffered an injury from the drop.
At a
minimum, the lack of injury suggests that Defendant Alston did not
drop Plaintiff from a particularly severe height.
However, the
third Kingsley factor (any effort made by the officer to temper or
to limit the amount of force) again favors Plaintiff, as the record
contains no evidence that Defendant Alston attempted to lessen the
amount
of
force
applied
in
the
drop.
In
fact,
Defendants’
declarations remain silent as to this particular application of
force (i.e., the dropping incident).
(See Docket Entries 53-56.)
The fourth and fifth Kingsley factors (the severity of the
security problem at issue, and the threat reasonably perceived by
-43-
the officer) also favor Plaintiff.
Here, the record establishes
that, at the time of the drop, Defendant Alston had handcuffed
Plaintiff’s hands behind his back, had placed him face down on the
ground,
and
had
begun
picking
resistance from Plaintiff.
circumstance,
a
reasonable
him
up,
all
without
(Docket Entry 28 at 3.)
fact-finder
could
further
In that
conclude
that
Plaintiff no longer presented (and Defendant Alston reasonably
could not have perceived Plaintiff as) a security or safety threat.
Likewise, the sixth Kingsley factor (whether the plaintiff
actively resisted) also favors Plaintiff.
Simply put, no evidence
exists that Plaintiff resisted Defendant Alston’s attempts to pick
him up from the ground (which could have led to the drop).
In sum, the first, third, fourth, fifth, and sixth Kingsley
factors favor Plaintiff and the second favors Defendant Alston,
leading to the conclusion that a material question of fact exists
as to whether Defendant Alston dropped Plaintiff in a manner that
“constitute[d]
undue
punishment.”
Duncan
v.
Blackwell,
7:14-CV-527, 2015 WL 4067805, at *3 (W.D. Va. Jul. 2, 2015)
(unpublished) (concluding that the “[p]laintiff’s pro se, verified
[c]omplaint sufficiently allege[d] that [the d]efendants lacked any
objectively
alleged]”).
reasonable
need
to
[apply
the
excessive
force
Put another way, a reasonable fact-finder could
conclude that dropping Plaintiff to the ground while he remained
handcuffed and compliant qualified as an objectively unreasonable
-44-
use of force under the circumstances.
Accordingly, qualified
immunity does not entitle Defendant Alston to judgment as a matter
of law as to that particular application of force.10
c. The Throwing Incident
The
third
and
final
application
of
force
attributed
to
Defendant Alston by Plaintiff involved Defendant Alston throwing
Plaintiff into the holding cell “roughly” resulting in Plaintiff
hitting a wall.
With respect to that incident, the first Kingsley
factor (the relationship between the need for the use of force and
the amount of force used) favors Defendant Alston. The uncontested
evidence
reveals
that,
despite
being
taken
“roughly”
to
the
concrete floor, placed in handcuffs, and dropped (Docket Entry 28
at 3), Plaintiff “continued to physically resist being moved,”
forcing Defendant Alston “to grapple the Plaintiff face-to-face”
(Docket Entry 56, ¶ 34).
Plaintiff’s physical resistance thus
necessitated the use of force to place Plaintiff into the holding
10
With regard to the second prong of the qualified immunity
analysis (whether the right violated was clearly established at the
time of the violation), if the jury credits Plaintiff’s version of
events, i.e., while Plaintiff remained handcuffed, face-down on the
ground, and compliant, Defendant Alston lifted Plaintiff from the
floor and purposely dropped him, “then no reasonable officer in
[Defendant Alston’s] position could have believed that [Defendant
Alston’s] use of force was lawful.” Crowley v. Scott, No. 5:14-CV326, 2016 WL 2993174, at *7 (M.D. Ga. May 23, 2016) (denying the
defendant’s motion for summary judgment on qualified immunity
grounds where the plaintiff alleged that the defendant used
excessive force when he performed “a leg sweep while [the
plaintiff] was handcuffed, non-resistant, and otherwise not
creating [a] disturbance”).
-45-
cell.
Further, Defendant Alston did not punch Plaintiff or use a
weapon to force Plaintiff into the holding cell. (See Docket Entry
28 at 3.)
Nor did Defendant Alston continue using force once
Plaintiff entered the holding cell.
(See id.)
Instead, according
to Plaintiff, Defendant Alston “thr[ew]” Plaintiff “roughly” into
the holding cell causing Plaintiff to contact a wall.
(Id.)
Plaintiff provides no other details describing the force Defendant
Alston used.
(See id.)
Importantly, the Amended Complaint does not describe the force
Defendant Alston applied in the throw, or allege that any part of
Plaintiff’s body contacted the ground.
(See id.)
Accordingly,
given
resistance
that
Plaintiff’s
undisputed
physical
caused
Defendant Alston to grapple with Plaintiff face-to-face to get him
in the cell, the physical force Defendant Alston used remained
rationally and closely related to the need to counter Plaintiff’s
resistance and put him into the holding cell.
See Mills, 2015 WL
5139198, at *5 (concluding that a single punch to the plaintiff’s
face
to
prevent
his
escape
did
not
qualify
as
“objectively
disproportionate to the need for force” (citing Schliewe v. Toro,
138 F. App’x 715, 722 (6th Cir. 2005), which, in turn concluded
that the officers’ actions of punching the plaintiff in the face,
twice kicking him in the back, wrestling him to the ground, and
dragging him by his feet to a holding cell did not amount to
excessive force under the Fourth Amendment, where the record
-46-
revealed that the plaintiff attempted “an escape from the holding
area of the police station,” “behaved erratically,” and “resisted
the officers’ attempts to subdue him,” id. at 718, 722)).
The second Kingsley factor (the extent of the plaintiff’s
injury) also favors Defendant Alston.
Plaintiff reports that his
hands remained cuffed behind his back when Defendant Alston threw
him into the holding cell, causing him to hit a wall and to suffer
further damage to his abrasion injuries (located on his elbows and
left forearm).
(Docket Entry 28 at 3.)
Plaintiff never made a
“request for EMS or medical attention” (Docket Entry 56, ¶ 37),
indicating that this incident did not significantly exacerbate his
abrasion injuries. In short, the absence of any significant injury
provides “strong evidence that the force used did not exceed that
which was necessary to satisfy th[e] [security] concern.” Berry v.
Hershberger, Civ. Action No. CCB-14-3145, 2015 WL 4615949, at *7
(D. Md. Jul. 30, 2015) (unpublished) (noting that the plaintiff
only suffered a “scratch to his back” from the defendants’ alleged
use of excessive force).
Similarly, the third Kingsley factor (any effort made by the
officer to temper or to limit the amount of force) favors Defendant
Alston.
The record reflects that Plaintiff physically resisted
being moved to the holding cell, “forc[ing] [Defendant Alston] to
grapple the Plaintiff face-to-face and put him into the holding
cell.”
(Docket Entry 56, ¶ 34.)
Moreover, the Amended Complaint
-47-
does not allege that Defendant Alston threw Plaintiff in the
holding cell more than once, or that he continued applying force
once Plaintiff entered the cell.
Mills, 2015 WL 5139198, at *5
(recognizing that “[t]he short duration of the entire [alleged
excessive force] incident, roughly six seconds, demonstrates . . .
that an effort was made to limit the amount of force applied”).
The fourth Kingsley factor (the severity of the security
problem at issue) also favors Defendant Alston.
Plaintiff engaged
Defendant Alston in a physical altercation, resisted Defendant
Alston’s attempts to handcuff him, and actively resisted being
placed in the holding cell.
Such conduct, especially in the
confines of a jail, presented a serious security problem.
See
Edmonds, 2015 WL 6674188, at *4 (noting that an unruly, physically
resistant detainee presents a “severe security problem and a threat
to the safety of the . . . officers and others in the jail”); see
also Whitley v. Albers, 475 U.S. 312, 321 (1986) (observing that
prisons
present
an
“‘ever-present
potential
for
violent
confrontation’” (quoting Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 132 (1977))).
The fifth Kingsley factor (the threat reasonably perceived by
the officer) further favors Defendant Alston. Again, Plaintiff had
just attempted to engage Defendant Alston in a physical altercation
and then resisted Defendant Alston’s efforts to put him in the
holding cell.
Plaintiff’s resistance presented an objectively,
-48-
serious threat of escape and/or harm to Defendant Alston, Defendant
Moore, and any others in the jail.
Lastly, the sixth Kingsley factor (whether the plaintiff
actively resisted) also favors Defendant Alston.
Simply put, the
undisputed evidence of record establishes that Plaintiff physically
resisted Defendant Alston’s attempts to move him into the holding
cell.
(Docket Entry 56, ¶ 34.)
All six Kingsley factors thus favor Defendant Alston with
regard to the throwing incident.
Applying those factors, the
amount of force Defendant Alston used when placing Plaintiff into
the holding cell does not qualify as objectively unreasonable under
the circumstances.
IV. CONCLUSION
Defendants have not shown that Plaintiff filed this action
untimely. Regardless, even when viewed in the light most favorable
to Plaintiff, the Amended Complaint fails as a matter of law to
support his claim against Defendants for excessive force, except as
to his claim for excessive force arising out of Defendant Alston
picking up and dropping Plaintiff while handcuffed and compliant.
IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion
(Docket Entry 51) be granted in part and denied in part, in that
the Court should enter summary judgment in favor of Defendants on
Plaintiff’s excessive force claim, except that Plaintiff’s claim
-49-
against Defendant Alston for picking up and then dropping Plaintiff
while handcuffed and compliant at the jail should survive.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 5, 2016
-50-
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