FRANCE-BEY v. HOLBROOK et al
Filing
102
MEMORANDUM OPINION, RECOMMENDATION, AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/15/2019; that the First Strike Motion (Docket Entry 81 ), the Second Strike Motion (Docket Entr y 90 ), the Discovery Motion (Docket Entry 71 ), the Reconsideration Motion (Docket Entry 79 ), the Eighth Amendment Motion (Docket Entry 89 ), the First Sealing Motion (Docket Entry 64 ), and the Second Sealing Motion (Docket Entry 85 ) are DE NIED. FURTHER that the materials Defendants sought to file under seal (Docket Entries 63 , 63 -1, 84 , 84 -1, 84 -2, 84 -3) are STRICKEN from the record. The Clerk is directed to remove these filings from the Docket. RECOMMENDED that the Court grant the Summary Judgment Motion (Docket Entry 61 ) and dismiss all claims against Defendants as barred by qualified immunity. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOSÉ L. FRANCE-BEY,
Plaintiff,
v.
KENNY HOLBROOK, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:17cv241
MEMORANDUM OPINION, RECOMMENDATION, AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on the “Motion for Rule
56(f)” (Docket Entry 71) (the “Discovery Motion”)1 filed by José L.
France-Bey
(the
“Plaintiff”),
Plaintiff’s
motion
for
reconsideration (Docket Entry 79) (the “Reconsideration Motion”),
Plaintiff’s “Motion for Eighth Amendment Violation with Medical
Records from Hugh Chatham Memorial Hospital (Elkin, NC 28621)”
(Docket Entry 89) (at times, the “Eighth Amendment Motion”),
“Defendants’ Motion to Strike Plaintiff’s Rule 26(b)(1) Motion for
Release of Surveillance Video, Rule 56(f) Motion, Plaintiff’s First
Set of Interrogatories, and Request for Production of Documents”
(Docket Entry 81) (the “First Strike Motion”), “Defendants’ Motion
to Strike Plaintiff’s Motion for Eighth Amendment Violation with
Medical Records from Hugh Chatham Memorial Hospital” (Docket Entry
90) (the “Second Strike Motion”), the “Motion to Seal Memorandum of
1 For legibility reasons, this Opinion omits all-cap font in
all quotations from the parties’ materials.
Defendants in Support of Summary Judgment” (Docket Entry 64) (the
“First Sealing Motion”) filed by Kenny Holbrook, Jason White,
Travis Bowman, and Brad Cook (collectively, the “Defendants”),
Defendants’ “Motion to Seal Reply to Plaintiff’s Response to
Defendants’
Motion
for
Summary
Judgment
and
Accompanying
Affidavits” (Docket Entry 85) (the “Second Sealing Motion”), and
the “Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56 of
Kenny Holbrook, Jason White, Travis Bowman, and Brad Cook” (Docket
Entry 61) (the “Summary Judgment Motion”).
For the reasons that
follow, the Court (1) will deny the First Motion to Strike, the
Second Motion to Strike (collectively, the “Motions to Strike”),
the
Discovery
Motion,
the
Reconsideration
Motion,
the
Eighth
Amendment Motion, the First Sealing Motion, and the Second Sealing
Motion, and (2) should grant the Summary Judgment Motion.
BACKGROUND
Plaintiff, a pro se litigant, initiated this action against
Defendants pursuant to 42 U.S.C. § 1983 for their alleged violation
of his fourth-amendment rights.
that
Defendants
interaction
on
used
March
“Complaint”) at 4, 5.)2
In particular, Plaintiff contends
excessive
16,
2014.
force
against
(See
Docket
him
during
Entry
2
an
(the
According to the Complaint:
2 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.
2
On March 16, 2014, Plaintiff “was parked at the gravel pit
awaiting [two women] to give them $10 for gas.”
(Id. at 4.)
As
Plaintiff “wait[ed] for their arrival, Dobson Police Officer Mr.
Kenneth James Holbrook approached [Plaintiff and] asked what [he]
was doing out there.”
(Id.)
After speaking with Holbrook,
Plaintiff returned to his car, and, “[u]nkowingly, Mr. Holbrook
retrieved his flashlight [and likewise] approached” Plaintiff’s
car.
(Id.)
“Upon
[Plaintiff’s]
[Plaintiff]
left
to
[Plaintiff’s]
the
back
noticing
wrist
in
a
restraints
ground.
[and]
restraints behind [him].”
bag,
He
then
Mr.
Holbrook
[and]
placed
then
placed
slammed
his
knee
in
right
wrist
in
placed
[Plaintiff’s]
(Id.)
“Holbrook then called dispatch
for back-up,” and “Deput[ies] Jason White, Brad Cook[, and] Travis
Bowman arrived on the scene.”
(Id.)
“The officers started asking
[Plaintiff] questions [and he] refused to respond.”
(Id.)
“This
is when the officers started choking [Plaintiff], placing their
fingers around [his] jaw, slamm[ing him] on the trunk of a car face
first[,] and started raising [his] restrained hands well beyond
[their] normal range of motion, punching [him] in [his] back [and]
ribs.”
(Id.)
These events caused Plaintiff to develop “acute
chronic back disorder,” “sciatic nerve damage, [a] pinched nerve,
bone spurs in [his] neck[, and] a possible bulging disc,” as well
as “extreme emotional distress,” all requiring medical attention.
(Id. at 4, 5.) “[W]hen the officials punched, choked, [and] kicked
3
[Plaintiff], leaving [him] with minor bruises, swelling of face
throat [and] loose/chipped teeth[, and] severe injuries,” they
acted with “excessive force” in violation of the United States
Constitution.
(Id. at 5.)
Defendants moved to dismiss the Complaint on statute of
limitations grounds.
(See Docket Entry 16 at 4, 5.)
The Court
(per United States District Judge Loretta C. Biggs) denied that
motion
(see
Docket
Entry
40
at
1)
and
thereafter
(per
the
undersigned) issued a Scheduling Order for this action (see Text
Order dated Oct. 19, 2017).
The Scheduling Order established a
discovery deadline of April 20, 2018, and specified a deadline of
December 20, 2017, for seeking leave to amend the pleadings.
id.)
On
April
12,
2018,
Plaintiff
submitted
a
request
(See
for
“subpoenas to file with the Surry County Sheriff’s Dept. and the
Dobson Police Dept.” for, inter alia, “[v]ideo surveillance cameras
of
cruisers
involved
in
[the]
incident
on March
16,
2014[,]
involving [Defendants].” (Docket Entry 53 at 1.) The Court denied
that motion, explaining that
Plaintiff waited until only eight days remained in the
(six-month) discovery period to request issuance of these
subpoenas. By that late date, little chance existed that
issuance and service of the subpoenas could occur before
the close of discovery and, under no circumstances, could
the
subpoenas
simultaneously
have
permitted
the
non-parties a reasonable time to respond and have
required a response by the close of discovery.
(Docket Entry 56 (the “Order”) at 2.)
The Court similarly denied
Defendants’ motion to unseal certain medical records produced “in
4
response to a subpoena served by Defendants on [a] non-party on or
after April 20, 2018 (the date of the subpoena’s issuance)” (Docket
Entry 58 at 1), on the grounds that “Defendants did not make
adequate provisions for production of these medical records within
the discovery period” (id. at 2).
Defendants subsequently moved for summary judgment.
Docket Entry 61.)
(See
In conjunction with their Summary Judgment
Motion, Defendants filed their First Sealing Motion, asking “for an
order to seal the unredacted Memorandum of Law in Support of
Defendants’ [Summary Judgment] Motion” as well as “Exhibit D to its
[Summary Judgment] Motion.”
(Docket Entry 64 at 1.)
Plaintiff
filed various responses in opposition to the Summary Judgment
Motion (see, e.g., Docket Entries 72-78), as well as the Discovery
Motion (Docket Entry 71) and Reconsideration Motion (Docket Entry
79). In response, Defendants filed, inter alia, their First Strike
Motion (Docket Entry 81) and their Second Sealing Motion (Docket
Entry 85), which seeks “an order to seal the unredacted Reply to
Plaintiff’s Response to Defendants’ Motion for Summary Judgment
[(the “Reply”)] and Accompanying Affidavits, Exhibit A to its
Reply, Exhibit B to its Reply, and Exhibit C to its Reply” (id. at
1).
Thereafter, Plaintiff filed his Eighth Amendment Motion
(Docket Entry 89), and Defendants filed their Second Strike Motion,
which
seeks
to
strike
Plaintiff’s
(see Docket Entry 90 at 1).
5
Eighth
Amendment
Motion
DISCUSSION
I. Motions to Strike
As an initial matter, Defendants move to strike certain of
Plaintiff’s motions. In particular, the First Strike Motion seeks,
“pursuant to Rule 12(f)(2) of the Federal Rules of Civil Procedure”
(the “Rules”)
Discovery
(Docket
Motion and
Entry 81
its
at
1), to
attachments,
strike Plaintiff’s
as well
as
an
earlier
iteration of Plaintiff’s Reconsideration Motion (compare Docket
Entry 70, with Docket Entry 79).
(See Docket Entry 81 at 1.)
In
addition, the Second Strike Motion asks the Court, also pursuant to
Rule 12(f)(2), to strike Plaintiff’s Eighth Amendment Motion. (See
Docket Entry 90 at 1.)
Rule 12(f) authorizes the Court to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.”
Fed. R. Civ. P. 12(f) (emphasis added).
Rule
7(a) identifies which documents qualify as pleadings in federal
cases.
JHRG LLC v. StormWatch, Inc., No. 1:09cv919, 2011 WL
3111971, at *5 (M.D.N.C. July 26, 2011); see also General Tire &
Rubber Co. v. Watkins, 331 F.2d 192, 195–96 (4th Cir. 1964)
(analyzing
whether
filing
constituted
“a
pleading
within
the
meaning of [the] Rule[s]” by reference to Rule 7(a), which “defines
pleadings”).
Under Rule 7(a), the complaint; any third-party
complaint; answers to (1) such complaints, (2) any crossclaims, and
(3) any counterclaims; and, “if the [C]ourt orders one, a reply to
6
an answer,” constitute the pleadings.
definition
does
not
include
Fed. R. Civ. P. 7(a).
motions
(or
discovery
This
requests).
Accordingly, the Court will deny the Motions to Strike.
II. Discovery Motion
Next, the Discovery Motion seeks (1) the Court’s “assistance
in locating two (2) witnesses” so that Plaintiff may obtain their
“declarations,” as well as (2) “any other just order(s).”
(Docket
Entry 71 at 1.)
Plaintiff filed the Discovery Motion after
discovery closed.
(Compare id. (bearing date of June 3, 2018),
with
Text
Order
dated
Oct.
19,
deadline of April 20, 2018).)
necessarily
seeks,
in
discovery deadline.
part,
2017
(establishing
discovery
As such, the Discovery Motion
a
“just
order[]”
(Docket Entry 71 at 1.)
extending
the
Under this Court’s
Local Rules, however,
[m]otions seeking an extension of the discovery period
. . . must be made or presented prior to the expiration
of the time within which discovery is required to be
completed. They must set forth good cause justifying the
additional time and will be granted or approved only upon
a showing that the parties have diligently pursued
discovery.
M.D.N.C. LR 26.1(d).
The Discovery Motion fails to satisfy these requirements.
More specifically, the Discovery Motion not only qualifies as
untimely, but also fails to either “set forth good cause justifying
the additional time” or “show[] that [Plaintiff] ha[s] diligently
7
pursued discovery,” id.
(See Docket Entry 71.)
Under these
circumstances, the Court will deny the Discovery Motion.
III. Reconsideration Motion
Plaintiff additionally seeks “reconsideration” of the Court’s
Order regarding “video surveillance from the cruisers involved in
the” altercation between Plaintiff and Defendants on March 16,
2014.
(Docket Entry 79 at 2.)3
An order that resolves “fewer than
all the claims or the rights and liabilities of fewer than all the
parties . . . may be revised at any time before the entry of a
[final] judgment.”
Fed. R. Civ. P. 54(b).
The power to reconsider
such orders “is committed to the discretion of the district court.”
American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th
Cir. 2003).
Furthermore, although the Rules “do not set out any
standard for reconsideration of interlocutory orders,” federal
courts generally “adhere[] to a fairly narrow set of grounds on
which to reconsider their interlocutory orders.”
Akeva, L.L.C. v.
Adidas Am., Inc., 385 F. Supp. 2d 559, 565 (M.D.N.C. 2005).
More
specifically, “[c]ourts will reconsider an interlocutory order in
the following situations: (1) there has been an intervening change
in controlling law; (2) there is additional evidence that was not
3 In an apparent typographical error, the Reconsideration
Motion technically requests an “order releasing video surveillance
from the cruisers involved in the day/night of the incident March
16, 2018 [sic] A.D.” (Id.)
8
previously available; or (3) the prior decision was based on clear
error or would work manifest injustice.”
Id. at 566.
The Reconsideration Motion identifies no change in law or
previously
unavailable
evidence.
Instead,
it
maintains
that
“[t]his evidence production or non-production weighs heavily upon
[D]efendants[’] unlawfulness of their duties unbecoming of an
officer.”
justify
(Docket Entry 79 at 2.)
Rule
54(b)
relief.
First,
This contention fails to
the
proposed
evidence’s
potential significance does not excuse Plaintiff’s failure to
timely request this material during the discovery period.
See
M.D.N.C. LR. 26.1(c) (“The requirement that discovery be completed
within a specified time means that adequate provisions must be made
for interrogatories and requests for admission to be answered, for
documents to be produced, and for depositions to be held within the
discovery period.”).
Second, Defendants aver that “[t]here is no
dash cam or body cam video footage of the incident.” (Docket Entry
61-1, ¶ 37; accord Docket Entry 61-3, ¶ 20 (“There is no dash cam
or body cam video footage of the arrest.”).)
Thus, reconsidering
the Order would produce no benefit for Plaintiff.
Under these
circumstances, the Court will exercise its discretion to deny the
Reconsideration Motion.
IV. Eighth Amendment Motion
Finally,
Plaintiff
pursues
his
Eighth
Amendment
however, the nature of this motion remains unclear.
9
Motion;
Plaintiff
begins the Eighth Amendment Motion by reciting various legal
principles, including regarding the “Eighth Amendment” (Docket
Entry 89 at 1-3), before stating:
Plaintiff did comply with initial officers [sic]
request; however, once on the ground [and] placed in
restraints [P]laintiff had a constitutional right not to
engage in verbal and/or physical compliance. Plaintiff
assumed he was being placed under arrest once restraints
placed on his wrists behind his back. Plaintiff also
assumed he was going to be placed in the back of the
cruiser; however, this never occurred by any of the
[D]efendants.
Conclusion
Wherefore, the Plaintiff respectfully request that
the Court grant the Plaintiffs [sic] Motion for Eighth
Amendment Violation along with relief as previously
requested, injunctive relief so such never happens again,
and any further relief the Court deems just and proper.
(Id. at 3 (underlining and indentation in original).)
Thereafter,
in his reply in support of the Eighth Amendment Motion, Plaintiff
“respectfully request[s] that the Court grant [his] Motion for
Eighth Amendment violation with Medical Records from Hugh Chatham
Memorial Hospital because Attorneys for Defendants have previously
stated records didn’t show injuries conclusive of the night of the
injuries; however, records prove (show) otherwise.”
(Docket Entry
92 at 7.)
In light of this reply, Plaintiff’s Eighth Amendment Motion
apparently
opposes
Defendants’
Summary Judgment
Motion, which
relies, in part, on the argument that “Plaintiff did not suffer
serious injury as a result of any actions by the Defendants”
10
(Docket Entry 62 at 11).
This Court’s Local Rules permit a party
opposing a motion for summary judgment to “file a response” within
“30 days.”
M.D.N.C. LR 7.3(f) (emphasis added).
The Local Rules
further authorize the filing, within seven days, of a “surreply
memorandum” solely to address “an evidentiary objection . . .
raised by the moving party in its reply.”
M.D.N.C. LR 7.6.
Here,
Plaintiff filed multiple responses to the Summary Judgment Motion
(see, e.g., Docket Entries 72-78, 88), and waited for nearly three
weeks after Defendants filed their Reply (and more than fifty days
after they filed the Summary Judgment Motion) to submit the Eighth
Amendment Motion (compare Docket Entry 89 at 3 (bearing signature
date of July 10, 2018), with Docket Entry 83 at 5 (bearing filing
date of June 21, 2018), and Docket Entry 61 at 1 (bearing filing
date of May 18, 2018)). Accordingly, to the extent that the Eighth
Amendment Motion constitutes an attempt to further oppose the
Summary Judgment Motion, the Court will deny it for failure to
comply with this Court’s Local Rules.
See M.D.N.C. LR 83.4(a)
(authorizing the Court to “make such orders as are just under the
circumstances”
when “a
party
fails
to
comply
with
a
[L]ocal
[R]ule,” including “an order refusing to allow the failing party to
. . . oppose designated . . . defenses, or prohibiting the party
from introducing designated matters in evidence”).
Alternatively, to the extent that Plaintiff seeks to amend his
Complaint via the Eighth Amendment Motion, that effort fails as
11
well.
The Scheduling Order established December 20, 2017, as the
deadline
for
“fil[ing]
any
motion
seeking
leave
to
amend
pleadings.” (Text Order dated Oct. 19, 2017.) Plaintiff submitted
the Eighth Amendment Motion on July 10, 2018. (See Docket Entry 89
at 3.)
Because Plaintiff filed his Eighth Amendment Motion after
the Scheduling Order’s deadline for motions to amend, he must
establish “excusable neglect” to receive relief.
See Fed. R. Civ.
P. 6(b) (“When an act may or must be done within a specified time,
the court may, for good cause, extend the time[] . . . on motion
made after the time has expired if the party failed to act because
of excusable neglect.”).
“‘Excusable neglect’ is not easily
demonstrated, nor was it intended to be,” Thompson v. E.I. DuPont
de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996), and the Eighth
Amendment Motion provides no grounds for finding excusable neglect
here (see Docket Entry 89 at 1-3).
Moreover, even if the Court overlooked the Eighth Amendment
Motion’s untimely nature, it would still fall short.
Because
Defendants oppose the Eighth Amendment Motion (see Docket Entry 90
at 1), Plaintiff “may amend [his] pleading only with . . . the
[C]ourt’s leave.”
Fed. R. Civ. P. 15(a)(2).
In considering
whether to grant such leave, the Court must consider whether “the
amendment would be futile.” Edwards v. City of Goldsboro, 178 F.3d
231, 242 (4th Cir. 1999) (internal quotation marks omitted). Here,
Plaintiff
complains
of
Defendants’
12
actions
prior
to
his
incarceration.
(See generally Docket Entry 2.)
The United States
Supreme Court has held that “all claims that law enforcement
officers have used excessive force — deadly or not — in the course
of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395
(1989) (emphasis in original).
Accordingly, any attempt to add a
claim under the Eighth Amendment in the context of this case
qualifies as futile.
Therefore, to the extent that the Eighth
Amendment Motion constitutes a motion for leave to amend the
Complaint, it fails for futility.
Under the circumstances, the Court will deny Plaintiff’s
Eighth Amendment Motion.4
V. Summary Judgment Motion
A.
Relevant Standards
Having disposed of the preliminary motions, the analysis now
turns to Defendants’ Summary Judgment Motion.
“The [C]ourt shall
4 For the reasons stated in Deberry v. Davis, No. 1:08cv582,
2010 WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010), the
undersigned Magistrate Judge will enter an order, rather than a
recommendation, as to the Eighth Amendment Motion, including as to
any request to amend Plaintiff’s pleadings. See also Everett v.
Prison Health Servs., 412 F. App’x 604, 605 & n.2 (4th Cir. 2011)
(explaining that, where the plaintiff “moved for leave to amend her
complaint,” “the magistrate judge denied [that] motion,” and the
plaintiff “timely objected,” the district court “could not modify
or set aside any portion of the magistrate judge’s order unless the
magistrate judge’s decision was ‘clearly erroneous or contrary to
law’” (citing 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a))).
13
grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine
dispute of material fact 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).
movant bears
dispute.
analyzing
the
burden of
establishing
the
absence
of
The
such
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
a
summary
judgment
motion,
the
Court
“tak[es]
In
the
evidence and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d
524, 531 (4th Cir. 2011) (en banc).
In other words, the nonmoving
“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)
(brackets in original) (quoting Charbonnages de France v. Smith,
597 F.2d 406, 414 (4th Cir. 1979)).
If, applying this standard,
the Court “find[s] that a reasonable jury could return a verdict
for [the nonmoving party], then a genuine factual dispute exists
and
summary
judgment
is
improper.”
Evans
v.
Technologies
Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).
However, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
14
the entry of summary judgment.”
Anderson, 477 U.S. at 248.
Moreover,
may
“the
non-moving
party
not
rely
on
beliefs,
conjecture, speculation, or conclusory allegations to defeat a
motion for summary judgment.”
Lewis v. Eagleton, 4:08-cv-2800,
2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (citing Baber v.
Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992)),
aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.
Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that
“[m]ere conclusory allegations and bare denials” or the nonmoving
party’s “self-serving allegations unsupported by any corroborating
evidence”
cannot
defeat
summary
judgment).
Finally,
factual
allegations in a complaint or court filing constitute evidence for
summary judgment purposes only if sworn or otherwise made under
penalty of perjury.
See Reeves v. Hubbard, No. 1:08cv721, 2011 WL
4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011), recommendation
adopted, slip op. (M.D.N.C. Nov. 21, 2011).
Defendants seek summary judgment, in part, on the basis of
qualified immunity. (See Docket Entry 62 at 13-15.) “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.
15
223,
231
(2009)
(internal
quotation
marks
omitted).5
“The
protection extends to all but the plainly incompetent or those who
knowingly violate the law.”
Raub v. Campbell, 785 F.3d 876, 881
(4th Cir. 2015) (internal quotation marks omitted).
Under this
doctrine, “[o]fficials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines.”
Id.
(internal quotation marks omitted) (brackets in original).
In evaluating qualified immunity, courts consider “(1) whether
the plaintiff has established the violation of a constitutional
right, and (2) whether that right was clearly established at the
5
In addition to monetary damages, the Complaint also
requests declaratory and injunctive relief. (See Docket Entry 2 at
6 (“Affiant seeks declaration that the acts [and] omissions
described herein violate his rights under the Constitution [and]
laws of the United States, [and] preliminary [and] permanent
injunction ordering agencies and/or defendants involved to cease
their physical violence/threats toward affiant . . . .”).)
However, “[t]o obtain prospective relief, such as a declaratory
judgment or an injunction, a plaintiff must show, inter alia, ‘a
sufficient likelihood that he . . . will again be wronged in a
similar way.’” Marcavage v. City of New York, 689 F.3d 98, 103 (2d
Cir. 2012) (emphasis in original) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983)). Moreover, “[i]n establishing a
certainly impending future injury, a plaintiff cannot rely solely
on past injuries; rather, the plaintiff must establish how he or
she will be injured prospectively and that the injury would be
prevented by the equitable relief sought.” Id. (citing Whitmore v.
Arkansas, 495 U.S. 149, 158–59 (1990), Lyons, 461 U.S. at 102–03,
and O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).
The
Complaint pertains solely to events occurring on March 16, 2014,
with no factual allegations to support a conclusion that, after
that
date,
Defendants
continued
to
engage
in
“physical
violence/threats toward [Plaintiff]” (Docket Entry 2 at 6).
(See id. at 4, 5.) As such, Plaintiff cannot obtain injunctive or
declaratory relief in this action, rendering monetary damages the
only potential relief Plaintiff could obtain against Defendants.
16
time of the alleged violation.”
prongs in
whatever
order
Id.
“will
The Court may address these
best
facilitate
efficient disposition of [this] case.”
the
fair and
Pearson, 555 U.S. at 242.
Here, consideration of the latter prong first appears appropriate.
See id. at 237 (recognizing propriety of initial consideration of
the
latter
prong
in
“cases
in
which
it
is
plain
that
a
constitutional right is not clearly established but far from
obvious whether in fact there is such a right”).
A right qualifies as “clearly established . . . [if] it would
be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202
(2001), overruled in part on other grounds, Pearson, 555 U.S. at
227.
In other words, “[t]he unlawfulness of the action must be
apparent when assessed from the perspective of an objectively
reasonable official charged with knowledge of established law.”
Lopez v. Robinson, 914 F.2d 486, 489 (4th Cir. 1990).
“This is not
to say that an official action is protected by qualified immunity
unless the
very
action
in
question
has
previously
been
held
unlawful, but it is to say that in the light of pre-existing law
the unlawfulness must be apparent.”
Anderson v. Creighton, 483
U.S. 635, 640 (1987) (citation omitted).
In ascertaining whether a right had become clearly established
at the time of the challenged conduct, courts within this circuit
generally “need not look beyond the decisions of the Supreme Court,
17
th[e Fourth Circuit C]ourt of [A]ppeals, and the highest court of
the state in which the case arose.”
(internal quotation marks omitted).
Edwards, 178 F.3d at 251
However, in the absence of
controlling precedent, a right may qualify as clearly established
(1)
if
it
appears
“manifestly
included
within
more
general
applications of the core constitutional principles invoked” or (2)
based on “a consensus of cases of persuasive authority from other
jurisdictions.”
Booker v. South Carolina Dep’t of Corr., 855 F.3d
533, 538-39 (4th Cir. 2017) (emphasis and internal quotation marks
omitted).
Conversely, in the absence of controlling authority,
decisions
from
other
jurisdictions
that
decline
to
find
constitutional violations in similar circumstances can justify
application of qualified immunity.
See Pearson, 555 U.S. at 244-
45; see also Booker, 855 F.3d at 539.
Plaintiff alleges that Defendants used excessive force against
him in the course of an investigatory encounter on March 16, 2014.
(See Docket Entry 2 at 4, 5.)
“[C]laims that law enforcement
officers have used excessive force . . . in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment,” Graham, 490 U.S. at
395,
which
protects
individuals
“against
unreasonable
seizures” of their “person[],” U.S. CONST. amend. IV.
.
.
As the
Supreme Court has explained:
Determining whether the force used to effect a
particular seizure is “reasonable” under the Fourth
18
.
Amendment requires a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth
Amendment
interests
against
the
countervailing
governmental interests at stake. Our Fourth Amendment
jurisprudence has long recognized that the right to make
an arrest or investigatory stop necessarily carries with
it the right to use some degree of physical coercion or
threat thereof to effect it.
Because the test of
reasonableness under the Fourth Amendment is not capable
of precise definition or mechanical application, however,
its proper application 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 (brackets, citations, and certain internal
quotation marks omitted).
Moreover, “[t]he ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Id.
In
evaluating the reasonableness of a use of force, the Court must
also “allow[] for the fact that police officers are often forced to
make split-second judgments — in circumstances that are tense,
uncertain, and rapidly evolving — about the amount of force that is
necessary in a particular situation,” id. at 397.
97.
See id. at 396-
Nevertheless, “the ‘reasonableness’ inquiry in an excessive
force case is an objective one:
the question is whether the
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation.”
19
Id. at 397.
B.
Relevant Facts
As
relevant
to
this
inquiry,
the
record6
reflects
the
following:
On the night of March 16, 2014, Holbrook, an officer with the
Surry County Sheriff’s Office, “was assisting [the] Dobson Police
Department by filling in for a police officer” on patrol.
Entry 61-1, ¶ 3.)
(Docket
“As part of [his] patrol, [Holbrook] was driving
a marked Dobson Police patrol vehicle through the area where
Plaintiff
was
parked.
[Holbrook]
routinely
check[s]
the
convenience stores in this area while they are open as there was a
robbery, shooting, and murder [t]here a few years prior to this
incident.”
(Id., ¶ 4.)
“Plaintiff was parked in a very back
corner parking space of the Kangaroo Express convenience store
6 Plaintiff submitted multiple purported “affidavits” (see,
e.g., Docket Entries 75, 76) and other memoranda in opposition to
the Summary Judgment Motion (see, e.g., Docket Entries 74, 88, 94,
95). “[A]n affidavit, by definition, is a statement reduced to
writing and the truth of which is sworn to before someone who is
authorized to administer an oath.” Elder–Keep v. Aksamit, 460 F.3d
979, 984 (8th Cir. 2006) (emphasis in original) (internal quotation
marks omitted). Plaintiff’s affidavits, memoranda, and Complaint
lack any indication that he swore to their truth before someone
authorized to administer oaths. (See generally Docket Entries 2,
73-78, 94, 95.) Nor did Plaintiff attest to the contents of these
documents “as true under penalty of perjury,” as permitted under 28
U.S.C. § 1746, see Nissho–Iwai Am. Corp. v. Kline, 845 F.2d 1300,
1306 (5th Cir. 1988) (explaining that Section 1746 “permits unsworn
declarations to substitute for an affiant’s oath if the statement
contained therein is made ‘under penalty of perjury’ and verified
as ‘true and correct’”). (See generally Docket Entries 2, 73-78,
94, 95.)
Accordingly, Plaintiff’s unsworn documents do not
constitute evidence for summary judgment purposes.
See In re
French, 499 F.3d 345, 358 (4th Cir. 2007) (Whitney, J.,
concurring); Reeves, 2011 WL 4499099, at *5 n.14.
20
parking lot.”
(Id., ¶ 5.)
Holbrook “went across the road to check
on some [closed] businesses” (id., ¶ 6), and, when he returned,
“Plaintiff’s vehicle was still in the same parking space” (id.,
¶ 7). Holbrook “watched Plaintiff from [Holbrook’s] vehicle” (id.)
and when, “[a]fter about ten minutes, Plaintiff started his vehicle
and went west on Zephyr Road toward Elkin” (id., ¶ 8), Holbrook
“headed in the same direction as Plaintiff” (id., ¶ 9).
“As
[Holbrook] was turning around in a gravel lot located at Interstate
77 and Zephyr Road, [he] spotted Plaintiff’s vehicle backed into a
parking space next to an unoccupied vehicle.”
(Id., ¶ 10.)
Holbrook “stopped [his] patrol car near where Plaintiff was
parked, got out of [his] car and approached Plaintiff.”
¶ 11.)
(Id.,
Holbrook “asked what [Plaintiff] was doing and if he had
any identification.
Plaintiff told [Holbrook] he was meeting
someone that needed gas and that he did not have a license or any
other
form
of
identification”
(id.,
¶
12),
but
identified himself as Jose France” (id., ¶ 13).
“Plaintiff
“[A]s a safety
precaution to make sure [Holbrook] could see Plaintiff’s hands” and
to aid in Plaintiff’s search for identification, Holbrook shone his
flashlight into Plaintiff’s car.
the
light
into
Plaintiff’s
(Id., ¶ 14.)
vehicle,
“When [he] shined
[Holbrook]
saw
a
white
substance in a bag or some type of wrapping on the center console
in plain sight,” which, based on Holbrook’s experience with drugrelated
crimes,
“appeared
to
be
21
cocaine
or
methamphetamine.
[Holbrook] asked Plaintiff what the substance was.”
(Id., ¶ 15.)
“[A]s soon as [Holbrook] asked Plaintiff what the substance was,
[Plaintiff] grabbed it in his right hand and shoved his hand
underneath his seat between the center console and the seat.”
(Id., ¶ 16.)
Knowing that people sometimes keep weapons between
their seat and center console, [Holbrook] was afraid
Plaintiff might have a weapon, especially considering
this area was an area where violent crimes including
gun-related crimes had occurred in the past. [Holbrook]
could not see the location where Plaintiff shoved his
hand, and therefore could not confirm whether or not
Plaintiff had a weapon. Plaintiff was moving his hand in
such a way that [Holbrook] feared he was looking for a
weapon between or under the seat.
At that point,[7 Holbrook] opened Plaintiff’s driver
side door, grabbed Plaintiff’s left arm and removed him
from his vehicle. Plaintiff went directly to the ground
and his right hand went towards his face.
Plaintiff
attempted to hit and kick [Holbrook] as [Holbrook] pulled
him out of the car and continued to struggle even once
handcuffs were placed on him.
[Holbrook] placed
Plaintiff in handcuffs and requested backup from
[Holbrook’s] portable radio on [his] person. [Holbrook]
called for backup because [he] had concerns as to whether
[he] could maintain control of [Plaintiff] due to his
resistance without other officers, even with his
handcuffs in place, as he continued to attempt to kick
[Holbrook].
[Holbrook] asked Plaintiff what he did with the
drugs but he did not respond.
7
Although not mentioned in Holbrook’s affidavit, his
incident reports regarding this event, and the factual basis
supporting Plaintiff’s subsequent guilty plea, state that Holbrook
instructed Plaintiff to show Holbrook his hands while Holbrook
opened the car door and removed Plaintiff from the vehicle.
(Docket Entry 61-1 at 9, 15; Docket Entry 61-4 at 77.)
22
Shortly thereafter, Officer Jason White arrived on
scene.
[Holbrook] asked Officer White to assist with
securing Plaintiff and watch Plaintiff while [Holbrook]
returned to [Plaintiff’s] vehicle to search for the drugs
in the area between the center console and the driver’s
seat. [Holbrook] advised Officer White that Plaintiff
may have put the drugs in his mouth.
(Id., ¶¶ 17-20 (paragraph numbers omitted).)
Based
Plaintiff.”
on
prior
encounters,
White
“immediately recognized
(Docket Entry 61-3, ¶ 5.)8
While Holbrook searched
Plaintiff’s vehicle (see Docket Entry 61-1, ¶ 21), “Plaintiff began
to talk loudly,” and White “noticed that Plaintiff was mumbling and
appeared to have something in his mouth.
[White] asked Plaintiff
to open his mouth and he complied, revealing a large amount of
white substance lodged to the left side of his mouth between his
gums and teeth.”
(Docket Entry 61-3, ¶ 8.)
appeared to be cocaine.”
“The substance
(Id., ¶ 9.)
[White] told Officer Holbrook that [White] had
located the contraband in Plaintiff’s mouth.
Officer
Holbrook and [White] walked Plaintiff to the back of
[White’s] patrol vehicle and told him to spit the
substance out. Plaintiff began to bend at his waist and
twist his body in an attempt to kick [White] and Officer
Holbrook. To prevent Plaintiff from doing so, [White]
performed a quick closed hand strike to [Plaintiff’s]
back to place him back against the patrol car.
8
Bowman likewise recognized Plaintiff from previous
encounters during Plaintiff’s incarceration at the Surry County
Jail, where Bowman previously worked. (Docket Entry 61-5, ¶¶ 12,
14.) “On multiple occasions, Plaintiff had attempted to actively
resist arrest or pull away from [Bowman] while in custody.” (Id.,
¶ 13.) Thus, “[w]hen [Bowman] heard Plaintiff’s name on the radio,
[he] knew [his] fellow officers would need backup based on [his]
prior experiences with Plaintiff, so [he] went to assist them.”
(Id., ¶ 14.)
23
Officer Holbrook and [White] asked Plaintiff several
times to spit out the contraband.
He continued to
refuse. The amount of substance in his mouth based on
[White’s] experience with overdoses in [White’s]
profession would be enough to cause serious injury to
Plaintiff so [Holbrook and White] applied pressure to the
side of Plaintiff’s jaw using the mandibular angle in an
attempt to remove the drugs from his mouth. The pressure
point appeared to have no impact.
(Id., ¶¶ 10, 11 (paragraph numbers omitted); see also Docket Entry
61-1, ¶¶ 21-25 (explaining, inter alia, that, while “Plaintiff was
still struggling with” Holbrook and White “in [an] attempt to kick
or
hit
[them]
with
his
head,”
Holbrook
“attempted
to
open
Plaintiff’s mouth by pushing on his chin”).)
Additional officers, including Cook and Bowman, arrived on the
scene, and “Officer Cook and Officer Bowman relieved Officer
Holbrook and [White] from holding Plaintiff.”
(Docket Entry 61-3,
¶ 12.) “Plaintiff still had his teeth clinched and was refusing to
remove the substance from inside his mouth.”
(Id., ¶ 13.)
White
and Holbrook “attempted to open Plaintiff’s mouth by pulling his
chin down while simultaneously pulling on his upper jaw.
[White]
was able to see the large amount of contraband still between
Plaintiff’s jaw and teeth.”
(Id.)
Plaintiff began to push away from the patrol car
using his body and was trying to kick back at Officer
Bowman and Officer Cook.
To protect [Officer White],
Officer Cooke [sic] and Officer Bowman from injury and
harm, Officer Bowman performed a closed hand strike to
Plaintiff’s back to get him against the patrol car and
regain control.
(Id., ¶ 14.)
24
“At this time, [White] noticed what appeared to be white
granular particles scattered across the trunk of [his] patrol car
and rear window.”
(Id., ¶ 15.)
“As Officer Bowman and Officer
Cook continued to try to get the drugs out of Plaintiff’s mouth,
Officer
White
and
[Officer
Holbrook]
collected
Plaintiff had spit out on Officer White’s vehicle.
tested
the
granulars
and
(Docket Entry 61-1, ¶ 27.)
they
tested
positive
the
granulars
[They] field
for
cocaine.”
White “again asked Plaintiff to spit
out the cocaine, but he refused.
[White] explained to him that if
he were to swallow that much cocaine, it could kill him or get
lodged in his throat. Plaintiff still refused.” (Docket Entry 613, ¶ 16.)
“Plaintiff began coughing and acting like he was choking
or about the throw up.
and he complied.
[White] asked Plaintiff to open his mouth
[White] could see that the cocaine was gone.
[Plaintiff] still had a trace amount on his teeth, jaw, and in the
comer of his lips.”
(Id., ¶ 17.)
approximately 4 to 5 minutes.”
“The entire struggle lasted
(Docket Entry 61-1, ¶ 28.)
Thereafter, “Plaintiff stated that he was having trouble
breathing so” White called for the Emergency Medical Services
(“EMS”). (Docket Entry 61-3, ¶ 18.)
“Surry County EMS arrived and
hooked Plaintiff up to an EKG heart rate monitor.
was
really
high
and
climbing.
Plaintiff
was
His heart rate
uncuffed
and
transported to Hugh Chatham Hospital. [The officers] were notified
that Plaintiff’s blood tested positive for cocaine.” (Id.) “After
25
EMS left the scene, [White] noticed that the paint on the trunk lid
of [his] patrol car and [his] rear tail light were damaged during
the struggle.”
(Id., ¶ 19.)
Also after EMS transported Plaintiff
from the scene, Holbrook obtained warrants for Plaintiff’s arrest
and Plaintiff “was subsequently arrested.”
(Docket Entry 61-1,
¶ 32.) The charges against Plaintiff included felony possession of
cocaine (id. at 24), felony maintaining a vehicle dwelling or place
for controlled substance (id. at 25), and misdemeanor resisting a
public
officer
(id.
at
26).
In
addition,
“[t]he
granulars
collected from the deck lid of Officer White’s vehicle were sent to
the
State
Bureau
of
Investigation
lab
for
testing.
It
was
confirmed that the substance was cocaine.” (Id., ¶ 34.) Plaintiff
subsequently pleaded guilty to the controlled substance felonies.
(See Docket Entry 61-4 at 69-72, 80.)
C.
Analysis
On such record, the Graham factors weigh in Defendants’ favor.
As to the first factor, the “severity of the suspected crime, at
the time [Holbrook] grabbed [Plaintiff’s] arm” to pull him from the
car, he “had reason to suspect that [Plaintiff] may be guilty of
[possessing a controlled substance],” Smith v. Ray, 781 F.3d 95,
102 (4th Cir. 2015), specifically cocaine or methamphetamine.
(See Docket Entry 61-1, ¶¶ 15-18.)
Possession of cocaine or
methamphetamine constitutes a felony under North Carolina law. See
N.C. Gen.
Stat.
§
90-95(d)(2).
26
During
the
ensuing
scuffle,
Defendants confirmed this suspicion when pieces of the substance
that fell from Plaintiff’s mouth field-tested positive for cocaine.
(See Docket Entry 61-1, ¶ 27; Docket Entry 61-3, ¶ 15.)
The second Graham factor, “whether the suspect poses an
immediate threat to the safety of the officers or others,” Smith,
781 F.3d at 102, likewise weighs in Defendants’ favor.
When
Holbrook pulled Plaintiff from the car, Plaintiff had (1) grabbed
an apparent controlled substance off the car’s center console in
response to Holbrook’s query regarding the substance and (2) hidden
it beneath “his seat between the center console and the seat”
(Docket Entry 61-1, ¶ 16), a location where “people sometimes keep
weapons” (id., ¶ 17).
(See id., ¶¶ 15-17.)
Holbrook “could not
see the location where Plaintiff shoved his hand” to confirm if
Plaintiff possessed a weapon, but Plaintiff “was moving his hand in
such a way that [Holbrook] feared he was looking for a weapon
between or under the seat.”
(Id., ¶ 17; see also id. (noting that
“this area was an area where violent crimes including gun-related
crimes had occurred in the past”).)
Under these circumstances,
Plaintiff posed a threat to Holbrook’s safety.
In addition,
because he was attempting to kick various Defendants when White and
Bowman
performed
their
“closed
hand
strike[s]”
against
him,
Plaintiff likewise posed a threat to the officers when they struck
him.
(Docket Entry 61-3, ¶¶ 10, 14.)
Finally, when Defendants
applied pressure to Plaintiff’s jaw after he refused their repeated
27
requests to spit out the cocaine, Plaintiff “posed an immediate
threat of serious harm to himself” and “some degree of force [was]
reasonably
necessary
to
ameliorate
th[at]
immediate
threat.”
Estate of Hill by Hill v. Miracle, 853 F.3d 306, 314 (6th Cir.
2017) (adopting Graham test to medical emergency context).
The final Graham factor, “whether the suspect was actively
resisting arrest or attempting to evade arrest by flight, also
[favors Defendants].” Smith, 781 F.3d at 102. First, although the
record does not reveal the precise sequence of events, it does
establish that “Plaintiff attempted to hit and kick [Holbrook] as
[Holbrook] pulled him out of the car.”
(Docket Entry 61-1, ¶ 18.)
It further reflects that Plaintiff “continued to struggle even once
handcuffs
were
struggling,
placed
including
on
him.”
(Id.)
“attempt[ing]
to
Plaintiff
kick
or
hit
continued
[various
Defendants] with his head” (id., ¶ 23) and “kicking and raising off
the deck lid of [the police] vehicle” (id., ¶ 25), during all
relevant times, ceasing such resistence only after he swallowed the
cocaine, at which point Defendants released him (see, e.g., id.,
¶ 29 (“At some point, Plaintiff relaxed and [Defendants] knew that
Plaintiff had swallowed the drugs.
As soon as Plaintiff stopped
struggling, he was released.”)). (See also, e.g., Docket Entry 613, ¶¶ 10-14.)9
9 For such conduct, Plaintiff incurred a charge of resisting
public officer. (See Docket Entry 61-1 at 26.)
28
Under such circumstances, one “cannot say that [Defendants]
violated a clearly established right when,” German v. Sosa, 399 F.
App’x 554, 557 (11th Cir. 2010), they pulled Plaintiff from the
car, attempted — after ineffective verbal commands to spit out the
drugs — to retrieve the cocaine from his mouth by pressing on his
jaw, and performed two closed hand strikes to control a “violently”
(Docket Entry 61-1, ¶ 25) resisting individual.
Plaintiff has not
identified (see generally Docket Entries 74-78, 88, 94, 95), and
the undersigned has not located, any Supreme Court, Fourth Circuit,
or North Carolina Supreme Court decision that “‘squarely governs’
the facts here,” Mullenix v. Luna, __ U.S. __, __, 136 S. Ct. 305,
310 (2015).10
However, prior to this incident, the Fourth Circuit
10
In this regard, it bears noting that “[t]he case at hand
implicates [two] legitimate governmental interests: preventing a
potential drug overdose and preserving evidence.” Pennington v.
Terry, 644 F. App’x 533, 546 (6th Cir. 2016). Although Defendants
focus solely on the first interest (see, e.g., Docket Entry 61-1,
¶¶ 23, 24; Docket Entry 61-3, ¶¶ 11, 16; Docket Entry 62 at 3, 4,
15),
the standard for excessive force is objective — that is,
whether the officers’ actions are objectively reasonable
in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.
The clearly established analysis is also objective —
whether every reasonable official would have understood
that what he is doing violates that right. As a result,
the officers’ subjective belief that [Plaintiff] might be
in physical danger from ingesting the drugs does not
affect [the Court’s] analysis as to whether a reasonable
officer in [Defendants’] situation would have known that
[their actions] violated a clearly established right.
Pennington, 644 F. App’x at 546 n.8 (citations, emphasis, and
(continued...)
29
had held that an officer’s “attempt to grab [a plaintiff’s] keys
and pull him from the almost-stationary truck to prevent him from
driving off after he had refused to provide [the officer] the
requested identification . . . did not violate [the plaintiff’s]
constitutional rights.”
Foote v. Dunagan, 33 F.3d 445, 449 (4th
Cir. 1994). Further, the North Carolina Court of Appeals had twice
declined
to
find
a
fourth-amendment
violation
justifying
suppression of evidence where an officer, who reasonably believed
an individual “was attempting to swallow illegal drugs,” either
(1) “grabbed [the] defendant around the throat, pushed him on the
hood of the vehicle, . . . demanded he spit out whatever he was
attempting to swallow,” and “threaten[ed] to use the taser” or
(2) “‘grabbed [the] defendant by the back of his jacket and told
him to spit out the drugs,’ applied pressure to the defendant’s
throat, and ‘told [the] defendant not to swallow or the drugs would
kill [the] defendant.’” State v. Williams, 209 N.C. App. 255, 26061, 266-68, 703 S.E.2d 905, 909, 912-14 (2011) (brackets and
certain internal quotation marks omitted) (quoting State v. Watson,
119 N.C. App. 395, 396, 458 S.E.2d 519, 521 (1995)).
In addition, federal courts have often — although not in all
situations — upheld the use of force to prevent the destruction of
evidence or “neutralize a safety threat to the plaintiff himself,”
10(...continued)
internal quotation marks omitted).
30
Pennington v. Terry, 644 F. App’x 533, 544 (6th Cir. 2016).
See id. at 544-46 (collecting and analyzing cases).
Of particular
relevance here, the Court of Appeals for the Fifth Circuit declined
to find a constitutional violation where “federal officers obtained
[narcotics] from the defendant’s mouth as he was attempting to
swallow and destroy it by grabbing the defendant about the throat,
choking him and attempting to pry open his mouth by placing
pressure against his jaw and nose,” Espinoza v. United States, 278
F.2d 802, 803 (5th Cir. 1960).
See id. at 804.
Thereafter, the
Court of Appeals for the Eleventh Circuit concluded that an officer
“did not use excessive force when he attempted to prevent [a
plaintiff] from swallowing what [the officer] believed to be
cannabis”
by
means
of
“putting
his
hand
around
[the
plaintiff’s] throat and slamming him against the car.” German, 399
F. App’x at 557 (brackets and internal quotation marks omitted).
Finally, the Court of Appeals for the Sixth Circuit has “h[e]ld
that it was not clearly established as of March 2, 2012[,] that
tasing an arrestee attempting to swallow illegally possessed drugs
constituted excessive force,” Pennington, 644 F. App’x at 547.
Accordingly, because one cannot “say that in the light of
pre-existing law the unlawfulness [of Defendants’ actions was]
apparent,” Creighton, 483 U.S. at 640, qualified immunity protects
31
Defendants from Plaintiff’s excessive force claim.
Therefore, the
Court should grant Defendants’ Summary Judgment Motion.11
VI. Motions to Seal
Finally, Defendants seek to seal certain exhibits and the
unredacted versions of their memoranda in support of the Summary
Judgment Motion.
Sealing
Motion
(See Docket Entries 64, 85.)
and
Second
Sealing
Motion
In both the First
(collectively,
the
“Sealing Motions”), Defendants “move[] the Court pursuant to Local
Rule 79.2 for an order to seal” these filings “[f]or reasons
essential to the privacy of [P]laintiff.”
accord Docket Entry 85 at 1.)
(Docket Entry 64 at 1;
More specifically, “Defendants
request that all the medical records attached to the [Summary
Judgment Motion and Reply] be sealed to protect [Plaintiff’s]
privacy . . . and the [unredacted summary judgment m]emorandum [and
Reply] also be sealed due to [their] discussion of the above[]mentioned records.” (Docket Entry 65 at 5; Docket Entry 86 at 4.)
The Court will deny the Sealing Motions.
As
an
initial
matter,
Local
Rule
79.2
provides
no
authorization for the relief that Defendants seek. See M.D.N.C. LR
79.2 (prohibiting “court personnel . . . from disclosing to any
person, without authorization by the Court, information relating to
11
The granting of summary judgment for Defendants on
qualified immunity grounds will terminate this case, as the Court
previously concluded that Plaintiff had not stated an official
capacity claim against Defendants.
(See Docket Entry 43 at 5,
recommendation adopted, Docket Entry 45 at 1.)
32
a case that is not part of the public records of the Court”).
Moreover, any documents sought to be filed under seal must qualify
as “relevant to a matter before the Court” and “not [be] filed
unnecessarily.” M.D.N.C. LR 5.4(c). Here, Defendants seek to seal
Plaintiff’s medical records and arguments in support of the Summary
Judgment Motion based on such records.
However, as the foregoing
analysis of the Summary Judgment Motion reveals, resolution of the
Summary Judgment Motion does not require consideration of such
matters. Thus, the materials at issue do not meet the requirements
for sealing.
See id.
The Court will therefore deny the Sealing
Motions and order these materials stricken from the record.
See
M.D.N.C. LR 83.4(a).
CONCLUSION
Rule 12(f) does not authorize the relief that the Motions to
Strike
seek.
In
addition,
Plaintiff
failed
to
satisfy
the
requirements for the Discovery Motion and Reconsideration Motion
and, in turn, Defendants failed to satisfy the requirements for the
Sealing Motions.
The Eighth Amendment Motion also lacks merit.
However, Defendants established their entitlement to qualified
immunity.
IT IS THEREFORE ORDERED that the First Strike Motion (Docket
Entry
81),
the
Second
Strike
Motion
(Docket
Entry
90),
the
Discovery Motion (Docket Entry 71), the Reconsideration Motion
(Docket Entry 79), the Eighth Amendment Motion (Docket Entry 89),
33
the First Sealing Motion (Docket Entry 64), and the Second Sealing
Motion (Docket Entry 85) are DENIED.
IT IS FURTHER ORDERED that the materials Defendants sought to
file under seal (Docket Entries 63, 63-1, 84, 84-1, 84-2, 84-3) are
STRICKEN from the record.
The Clerk is directed to remove these
filings from the Docket.
IT IS RECOMMENDED that the Court grant the Summary Judgment
Motion (Docket Entry 61) and dismiss all claims against Defendants
as barred by qualified immunity.
This 15th day of February, 2019.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
34
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