Williams v. North Charleston Police Department, The et al

Filing 29

ORDER adopting 24 Report and Recommendation of Wallace W Dixon; granting 16 Motion for Summary Judgment. Signed by Honorable Richard M Gergel on 8/29/2014.(ssam, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Thomas A. Williams,

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Plaintiff,

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vs.

No.2: 13-cv-02969-RMG

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ORDER

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The North Charleston Police Department;
Officer C. Arroyo,

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Defendants.

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This matter is before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge recommending that Defendants' Motion to Dismiss, or in the alternative,
Motion for Summary Judgment be granted. (Dkt. No. 24). Plaintiff filed timely objections.
(Dkt. No. 27). For the reasons stated below, the Court ADOPTS the R & R and GRANTS
Defendants' Motion for Summary Judgment. i

Backeround
Plaintiff alleges that Defendant Arroyo falsely imprisoned/arrested him and used
excessive force on the night of October 3,2011, when Arroyo arrested Plaintiff and charged him
with trespassing and damage to property. (Dkt. No.1-I). Defendants filed a motion for
summary judgment, attaching three affidavits concerning the events of October 3, 2011, and
establishing that Defendants had probable cause to believe Plaintiff had trespassed and destroyed
his neighbor's property, based on his neighbor's accusations and call for emergency assistance.
(See Dkt. Nos. 16-1, 16-2 and 16-3). These witnesses also testifY that Plaintiff was "erratic,"

Because the Magistrate Judge and the undersigned has considered affidavits submitted
with Defendants' motion, it is one for summary judgment.
i

"defensive," and placed his hands suspiciously "near his belt line." (/d.). Thus, Plaintiff and
Officer Bailey used the "minimum force necessary to take Plaintiff to his couch where we were
able to place him in handcuffs." (Dkt. No. 16-1 at 4; Dkt. No. 16-2 at 4).
Plaintiff responded to Defendants' motion with two unsworn statements by his neighbors
and a Disability Adjudication from the Social Security Administration. (Dkt. No. 20-1). In
briefing, Plaintiff argues that police officers "shined flashlights in my face to intimidate and
confuse met and then physically attacked me" but does not provide any details of the alleged
attack. (Dkt. No. 20 at 2)
The Magistrate Judge found that because the affidavits submitted by Plaintiff were
neither sworn nor declared under penalty of perjury, they were not competent evidence for the
purposes of summary judgment. (Dkt. No. 24 at 4-5). Therefore, the Magistrate Judge found
that Plaintiff failed to present any evidence to dispute the affidavits submitted by Defendants, and
summary judgment was appropriate. (/d.). Plaintiff filed timely objections, stating among other
things that "[t]he affadavits [sic] submitted do not need to be sworn." (Dkt. No. 27 at 1).

Le&al Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions
of the R & R or specified proposed findings or recommendations to which objection is made.

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Diamondv. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (quoting 28 U.S,C.

§ 636(b)(1)); accord Fed, R. Civ. P. 72(b).
Discussion
The Magistrate Judge is correct that to be competent evidence considered on summary
judgment, an affidavit or declaration must either be sworn under oath or made under penalty of
perjury. E.g., Geter v. Powers, No. 8:07-3849,2008 WL 5245321 at *1 (D.S.C. Dec. 16,2008).
However, even if the Court considered the statements submitted by Plaintiff, they would not
create an issue of fact as to whether Defendants had probable cause to arrest Plaintiff or as to
whether Defendant Arroyo used excessive force.
Plaintiff s neighbors state that Plaintiff did have permission to enter their home on
October 3, 2011, and that he did not cause any damage to their property. (Dkt. No. 20-1 at 1-2).
While such statements may be relevant to whether Plaintiff was actually guilty of the offenses
charged, they do not dispute the facts relied on by Defendants for probable cause,2 The
statements made by Plaintiffs neighbors do not dispute that someone made an emergency call
for help from the residence at issue, that a disturbance could be heard in the background, that the
caller claimed Plaintiff would not leave the residence, or that the call had been disconnected and
dispatch could not get the caller back on the line. These written statements do not dispute that
the caller, Ms. Smith, was crying when officers arrived on the scene and that she informed the
officers that Plaintiff had forced entry into the residence, broken the door frame and refused to

2 Plaintiff also objects that "[t]he magistrate seems to completely ignore the facts outlined
in my previous response concerning expungement," (Dkt. No. 27 at 1). Again, the fact that
Plaintiff was not ultimately found guilty of the crimes charged does not necessarily mean that the
officers who arrested him lacked probable cause at the time of arrest.

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leave. Indeed, Mr. Green states that "[a]ny statements which may have been made contradictory
to the above were probably made by my companion at that time and in the emotion of the
moment," indicating such comments were indeed made to officers at the time. (Dkt. No. 20-1).
Thus, even considering these statements, Plaintiff has presented no evidence to dispute the
officer's accounts of the evening and their basis for probable cause.
The written statements submitted by Plaintiff also do not contain any information about
the alleged use of excessive force. Indeed, the alleged use of excessive force occurred at
Plaintiff s residence when his neighbors were not present. Plaintiff submits a decision by an
Administrative Law Judge that finds him disabled under the Social Security Act. However, this
document does not provide any insight as to the amount of force used by Defendant Arroyo when
Plaintiff was handcuffed. Plaintiff has provided no evidence showing the amount of force used
or suggesting that the amount of force was unreasonable under the circumstances. Therefore,
summary judgment is appropriate.

Conclusion
For the reasons stated above, the Court ADOPTS the R & R (Dkt. No. 24) and GRANTS
Defendants' Motion for Summary Judgment (Dkt. No. 16).
AND IT IS SO ORDERED.

August J ~ ,2014
Charleston, South Carolina

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