Smith v. Charleston County et al

Filing 78

ORDER RULING ON REPORT AND RECOMMENDATION for 70 Report and Recommendation, 60 Motion for Summary Judgment filed by Zach Lindsay, John Wiedemann, Donald Stanley, Matthew Wean, James L Jacko, Charleston County Sh eriff's Office. The Court overrules the objections filed and adopts the Report of the Magistrate Judge. It is ordered that Defendant's motion for summary judgment (ECF No. 60) is GRANTED in part and DENIED in part. All state law claims (Cou nts 47) are DISMISSED without prejudice, and Defendants Charleston County Sheriffs Office and Donald Stanley are DISMISSED as party defendants from this action. Moreover, Defendant Lindsay is DISMISSED as a party on Plaintiffs excessive force claim only. Signed by Honorable Bruce Howe Hendricks on 3/22/2019. (vdru, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
)
)
Plaintiff, )
)
)
vs.
)
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The Charleston County Sheriff’s
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Office, James L. Jacko, Donald
)
Stanley, John Wiedemann, Zach
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Lindsay, Matthew Wean in their
)
respective individual capacities,
)
Defendants. )
______________________________ )
Akiliou Smith,

Civil Action No.: 2:16-655-BHH

OPINION AND ORDER

On December 20, 2016, Plaintiff Akiliou Smith (“Plaintiff”) filed his amended
complaint in this 42 U.S.C. § 1983 action alleging that Defendants James L. Jacko
(“Jacko”), Donald Stanley (“Stanley”), John Wiedemann (“Wiedemann”), Zach Lindsay
(“Lindsay”), Mathew Wean (“Wean”) (collectively “Individual Defendants”), and the
Charleston County Sheriff’s Office (“CCSO”) violated his Fourth Amendment rights
during a search of his home and seizure of his person. (ECF No. 32.) Plaintiff also
brought related state claims for false imprisonment, invasion of privacy, trespass, and
negligence. (Id.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(d) D.S.C., this matter was referred to United States Magistrate Judge
Bristow Marchant, for consideration of pretrial matters. The Magistrate Judge prepared a
thorough Report and Recommendation (“Report”) which recommends that Defendants’
motion for summary judgment (ECF No. 60) be granted in part and denied in part. (ECF

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No. 70.) Defendants and Plaintiff filed timely objections to the Report. (ECF Nos. 71 &
72.) Additionally, the parties filed replies to one another’s objections. (ECF Nos. 73 &
74.) For the reasons set forth herein, the Court adopts the Report.
BACKGROUND AND PROCEDURAL HISTORY
The Report sets forth in detail the relevant facts (see ECF No. 70 at 2–7) and
standards of law, and the Court incorporates them herein, summarizing below only in
relevant part.1 On December 7, 2015, a woman named Ms. Foggy called 911 to report
that she found an unknown man in her house. Ms. Foggy provided a description of the
intruder, a black male, including his appearance, his height and weight, and the clothes
he was wearing. Defendant Jacko, along with another sheriff’s deputy who is not listed
as a defendant, responded to the call and interviewed Ms. Foggy at her home. Ms.
Foggy gave her description of the intruder to Jacko during the interview. A K-9 officer
was requested, whereupon Defendant Lindsay responded to the scene with his police
dog. After being provided with a description of the suspect, Lindsay and the K-9 began
canvassing the area where the suspect was last seen with several other officers.
Lindsay and the K-9 came upon Plaintiff who was standing in his driveway
smoking a cigarette. Lindsay testified that his dog went into alert status and he saw
someone out of the corner of his eye “essentially lurch behind a vehicle,” gave him
reasonable suspicion that something was “going on.” Lindsay further testified that he
directed his flashlight toward the subject and yelled “show me your hands,” at which
point the subject ran from behind the vehicle toward the house.

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As always, the Court says only what is necessary to address the parties’ objections against the already
meaningful backdrop of a thorough Report and Recommendation by the Magistrate Judge; comprehensive
recitation of law and fact exist there.

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Plaintiff testified that he was standing in his driveway finishing a cigarette when he
noticed a man with a dog. Plaintiff stated that he is not fond of dogs and the dog he
observed was big. Plaintiff further testified that he could not tell who the man was
because it was dark, but when they noticed each other the man said “Hey, you, come
here.” Plaintiff further stated that he never heard Lindsay say he was a sheriff’s officer.
Plaintiff explained that because the man started running toward him, he did not respond
to the individual’s statement but ran into his house.
Lindsay proceeded to the house and began to “pound” on the door. Plaintiff and
his family, who were in the house, were distraught, and some of the family began crying
as the individual grabbed the door handle and tried to open it. Lindsay and Jacko both
testified that they identified themselves as members of the Charleston County Sheriff’s
Office, but no one answered the door. Plaintiff called 911 to report that a man with a dog
had just run at him in his yard. While he was on the phone with the 911 operator, he
could hear knocking on the door and someone yelling outside. Plaintiff was not sure what
the people at the door were saying, but his wife told them “don’t come in here.”
Plaintiff’s mother-in-law, Tonya Davis (“Davis”) was in the house during the
incident, and testified that someone was banging on the door and screaming various
profanities, such as “open the f****** door.” Ms. Davis stated that when the individual
yelled that they were the “f****** police,” and she asked what they wanted, they asserted
that she had let a fugitive into her house. Ms. Davis told them she was not opening her
door for them because Plaintiff said he did not know who they were, she did not know
who they were, and she did not know what they might do based on the way they were

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“carrying on and cursing out there.” Ms. Davis further testified that she was afraid as a
result of their behavior.
Another individual in the house, Dominique Smith (“Smith”), testified that the
individuals outside the house were yelling “open the f****** door” and saying they were
going to “kick this s*** down.” Ms. Smith stated that when she asked the individuals who
they were, they identified themselves as the police. She further testified that when she
asked “what is wrong? What is the problem . . . I have my kids in here,” they responded
“open it up” and threatened to “kick this mother-f***** down.” Ms. Smith, having “never
experienced anything like this,” said she did not believe the individuals were actually
police, and refused to open the door because she was afraid.
It is undisputed that Plaintiff lived at the residence, that he was not the intruder
who had been at Ms. Foggy’s house, and that other than being an African-American
male he did not fit the description of the intruder that Ms. Foggy provided, with respect to
height, weight, or his clothing.
When the residents of the house would not open the door, Lindsay testified that
he kicked the door once in an attempt to kick it in, and then Jacko “kicked the door in
maybe twice, and the door kicked in.” The deputies entered the house into a room full of
a least five people, most of whom were upset and crying or yelling at them. Jacko stated
that the individuals made it clear that the deputies were not welcome and that they
wanted the deputies to leave. Jacko also conceded that by this point it was clear that
Plaintiff was not an intruder in the residence, and that any exigency that had previously
existed had expired.

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Nevertheless, Lindsay and Jacko persisted in their efforts to speak with Plaintiff.
Instead of leaving, Jacko demanded to know where Plaintiff was, saying “we need to
speak to him.” Plaintiff was located in the house and initially refused to go with the
deputies, so Jacko “grabbed his wrist.” Jacko testified that Plaintiff “pulled away from me
and so I grabbed it again, and that is when the Defendant Deputy Wean came in and
helped me handcuff [Plaintiff].” Jacko stated that Plaintiff was “passively” resisting the
officers’ verbal commands to go outside, but that once Deputy Wiedemann aimed his
taser at Plaintiff and said “you are going to come outside,” Plaintiff complied. Once
outside, the group was met by Defendant Stanley, a Lieutenant, who had since arrived
on the scene. Plaintiff was held until Ms. Foggy was brought to the scene and confirmed
that Plaintiff was not the intruder who had been in her home, at which point Plaintiff was
released.
On May 18, 2018, Defendants moved for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure. (ECF No. 60.) Plaintiff responded (ECF No. 62)
and Defendants replied (ECF No. 64) in turn. After consideration of all the relevant
briefing and detailed analysis of the record, the Magistrate Judge issued a Report
recommending that Defendants’ motion for summary judgment be granted in part and
denied in part. (ECF No. 70.) Specifically, the Magistrate Judge concluded that the
motion for summary judgment with respect to Plaintiff’s federal claims asserted pursuant
to 42 U.S.C. § 1983 (Counts 1–3) should be denied, but that Defendant Stanley should
be dismissed as a party on Plaintiff’s illegal search claim and that Defendants Stanley
and Lindsay should be dismissed as parties on Plaintiff’s excessive force claim. (Id. at 13

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n.7, 17 n.9, 22.) The Magistrate Judge further found that the CCSO’s motion for
summary judgment with respect to Plaintiff’s state law claims should be granted, and
those claims should be dismissed without prejudice. (Id. at 22.) Finally, because the
CCSO is only named as a Defendant in the state law causes of action, the Magistrate
Judge concluded that the CCSO should be dismissed as a party in this case. (Id.) The
Court has reviewed the objections (ECF Nos. 71 & 72) to the Report and finds them to
be without merit. Therefore, the Court will enter judgment accordingly.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). The Court is charged with making a de novo determination of those portions of
the Report to which specific objection is made, and the court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo
review when a party makes only “general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the Magistrate Judge’s conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

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DISCUSSION
A. Bystander Liability
Defendants object by arguing that Plaintiff did not specifically plead bystander
liability in the amended complaint, and “There is no language in the Amended Complaint
that can be construed as alleging bystander liability.” (ECF No. 71 at 1–2.)
First, with respect to Defendant Wiedemann, Defendants cite footnote 8 in the
Report, which states, inter alia, “[T]he undersigned does not find that Wiedemann’s mere
drawing of his taser by itself would amount to an excessive use of force.” (See ECF No.
70 at 17 n.8 (citations omitted).) Defendants argue that Wiedemann should have been
recommended for summary judgment on the excessive force claim because his only
involvement was in verbally speaking to Plaintiff and drawing his taser, he did not
actually touch Plaintiff. (ECF No. 71 at 2.)
The Court disagrees, and overrules the objection. The Magistrate Judge correctly
noted that it is not excessive force per se for a police officer to draw a taser and point it
at an unarmed suspect. However, as with all allegations of excessive force, it is a
question of what was reasonable under the circumstances. The Court finds that there is
a genuine issue of material fact as to whether Wiedemann pointing his taser at Plaintiff in
order to compel him to submit to being handcuffed was reasonable under the specific
circumstances presented here.
Second, with respect to Defendant Lindsay, Defendants argue that he should be
granted summary judgment as to the unlawful search claim because he never crossed
the threshold of the residence, “did not perform any search of the residence[,] and did

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not do anything to look for [Plaintiff] inside the residence.” (Id. at 2–3.) This argument
represents an unduly narrow view of Lindsay’s involvement in the search. Lindsay
testified that he attempted to kick in Plaintiff’s door, but was unsuccessful, so he ordered
Defendant Jacko to kick in the door. Lindsay was unquestionably part of law
enforcement’s breach of Plaintiff’s home without a warrant, and genuine issues of
material fact remain as to whether the totality of the search was unconstitutional.
Accordingly, the Court overrules this objection.
Third, Defendants object to the absence of a recommendation for summary
judgment in favor of Defendants Wiedemann and Wean with respect to the unlawful
search claim. Defendants argue that Wiedemann and Wean “were not called to assist
until after Jacko had entered and did not arrive until Plaintiff had already entered the
kitchen and confronted Deputy Jacko. Neither Wean nor Wiedemann participated in any
kind of search inside the house.” (ECF No. 71 at 3.) Again, Defendants artificially narrow
the scope of the claim. The “search” that Plaintiff is challenging was the entry, by law
enforcement, into Plaintiff’s home in search of his person. The Court finds that genuine
issues of material fact remain as to whether Wiedemann and Wean participated in an
unconstitutional search for Plaintiff inside his own home, and the objection is overruled.
Fourth, Defendants object by arguing that because Defendant Jacko was the one
who laid hands on Plaintiff, by grabbing his arm and placing handcuffs on him, that
Defendants Lindsay, Wiedemann, Wean, and Stanley are all entitled to summary
judgment on the unlawful seizure claim. (ECF No. 71 at 3–4.) However, the facts viewed
in the light most favorable to Plaintiff reveal that Lindsay, Wiedemann, and Wean were

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all instrumental parts of a chain of events that led to Plaintiff’s seizure. Lindsay was the
first to interact with Plaintiff and chased him into his home. (Lindsay Dep. p. 61–63.)  He
directed Jacko to kick the door in (id. at 77) and Wean to assist Jacko with the seizure of
Plaintiff. (Wean Dep. p. 51.) Jacko testified that Wean helped him handcuff Plaintiff.
(Jacko Dep. p. 58.) He further testified that Wiedmann pointed a taser at Plaintiff while
he and Wean handcuffed Plaintiff, and that Wiedmann told Plaintiff, “Don’t move or
you’re going to be tased.” (Id. p. 61–62.) Therefore, with respect to Defendants Lindsay,
Wiedemann, and Wean, the objection is overruled.
Plaintiff does not oppose the dismissal of Defendant Stanley from this action. In
his reply to Defendants’ objections, Plaintiff notes, “Lieutenant Stanley arrived at the
scene after Plaintiff was already handcuffed, removed from his home, and taken to the
street. . . . Lieutenant Stanley ordered Defendants to release Plaintiff after Ms. Foggy
informed Defendants he was not the suspect.” (ECF No. 73 at 2 n.1.) Indeed, given that
the Magistrate Judge specifically recommended that Defendant Stanley should be
dismissed as a party on Plaintiff’s illegal search claim and excessive force claim (see
ECF No. 70 at 13 n.7, 17 n.9), it seems as though it may have been mere oversight not
to also recommend that he be dismissed from the seizure claim. In any event, given that
Plaintiff does not oppose such dismissal, Defendant Stanley is hereby dismissed from
this action.
B. Qualified Immunity As To Defendants Wiedemann and Wean
Defendants object to the Report’s findings regarding qualified immunity, arguing
that Defendants Wiedemann and Wean are entitled to qualified immunity on the unlawful

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seizure and excessive force claims because they were only present in Plaintiff’s
residence as a result of a call for help from a fellow law enforcement officer. (ECF No. 71
at 4.) Defendants assert that, when judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight, Wiedeman and Wean “were
within their rights to assist Jacko, detain the Plaintiff[,] and to use ‘some degree of
physical coercion’ to effect the detainer.” (Id. at 5–6 (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)).)
However, the Court finds that Defendants erroneously construe the facts in a light
favorable to their own position when they argue that Plaintiff was “actively resisting and
struggling with Deputy Jacko” as Wiedemann and Wean entered the residence, and
therefore could reasonably be characterized as posing a danger or threat to the deputies
on scene or to bystanders. (See ECF No. 71 at 6.) The facts of the case, when
construed in the light most favorable to Plaintiff demonstrate that Defendants kicked in
Plaintiff’s door, intruded into the privacy of his home, pointed a taser at him, put him in
handcuffs, and forcibly removed him from his home against his will in the presence of his
wife and children. It is undisputed that Plaintiff committed no crime, and posed no danger
to anyone in his own home. Defendants’ assertion that Wiedemann and Wean are
entitled to qualified immunity because they were simply acting as backup for Lindsay and
Jacko is of no moment. The Court finds that genuine issues of material fact remain as to
whether Defendants, including Wiedemann and Wean, were justified in the warrantless
search of Plaintiff’s residence and/or with Plaintiff’s seizure. As the Magistrate Judge
rightly noted, “[I]t was certainly clearly established at the time of the incident at issue in

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this lawsuit that law enforcement officers must have a reasonable basis to justify even an
investigatory detention, and that they are not justified in conducting a warrantless search
of a residence or seizure of a person absent exigent circumstances.” (ECF No. 70 at 19
(citing Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)).) The Court agrees with
the Magistrate Judge’s sound analysis and conclusions on the qualified immunity issue
and overrules Defendants objections.
C. Report’s Section I “Unlawful Seizure”
Plaintiff objects to the Report “to the extent that it agrees, if at all, with the
Defendants that their seizure of Mr. Smith constituted a ‘stop and frisk,’ as contemplated
by Terry v. Ohio, 392 U.S. 1 (1968).” (ECF No. 72 at 2.) Plaintiff further states that he
“objects to the [Report] not specifically finding that the evidence establishes that
Defendants placed Mr. Smith under arrest such that their conduct must be analyzed as
to whether probable cause existed for Defendants to arrest him.” (Id.)
With respect, the undersigned does not read the Report as making an affirmative
finding that Defendants’ seizure of Plaintiff constituted a “stop and frisk” detention as
opposed to an arrest. Rather, the Magistrate Judge reasoned that, “[e]ven under [the
reasonable, articulable suspicion] standard, . . . which is a less demanding standard than
probable cause,” Defendants still failed to satisfy their burden to show that summary
judgment is appropriate. (See ECF No. 70 at 10.) The Magistrate Judge stated, “Here,
considered in the light most favorable to the Plaintiff, the evidence presented is sufficient
to create a genuine issue of fact as to whether the Sheriff’s Deputies had any such
reasonable suspicion to justify Plaintiff’s seizure and detention in this case, no matter

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how brief.” (Id. (noting that Defendants contend Plaintiff was held in “investigative
detention” for approximately eleven minutes before being released).) The Court notes
that Plaintiff filed no cross-motion for summary judgment seeking to establish that he
was subject to an unconstitutional arrest as a matter of law. The Report evinces no error
on this point and Plaintiff’s objection is overruled.
D. Report’s Section I “Excessive Force”
Plaintiff further objects to the section of the Report that discusses the excessive
force claim and “seeks to clarify the [Report] that any force used when an officer is not
entitled to arrest or detain a suspect violates the Fourth Amendment, to include the
drawing of a taser.” (ECF No. 72 at 6.) Plaintiff argues that “an issue for the jury exists as
to whether Defendant Wiedemann’s drawing of his taser at Mr. Smith amounts to
excessive force.” (Id.)
This objection appears to construe the Magistrate Judge’s discussion of case law
pertaining to drawing and pointing a taser as an affirmative finding that Wiedemann’s
actions did not constitute excessive force in this case. However, the Magistrate Judge’s
discussion of this point, in a footnote, must be taken in context:
Plaintiff [in his response in opposition to the motion for summary judgment,]
also argues that Wiedemann’s drawing of his taser, even if not used,
further argues against granting summary judgment under the facts
presented here. Cf. Amuels v. Nutter, No. 15-665, 2016 WL 1572933, at
*2-3 (E.D. Va. April 18, 2016) [Noting Fourth Amendment Excessive Force
Claim based on the pointing of a firearm may be viable under some
circumstances]; see also Gunsay v. Mozayeni, No. 16-1131, 2017 WL
2684015, at *4-5 (4th Cir. June 21, 2017) [Discussing excessive force
involving the pointing of a firearm]; Cook v. Holmes, No. 16-17, 2016 WL
6561458, at *4 (W.D. Va. Nov. 3, 2016) [same]; Robinson v. Solano
County, 278 F.3d 1007, 1015 (9th Cir. 2002) [Finding that pointing a gun at
the head of an apparently unarmed man was actionable as excessive force
under the facts of that case]; Bellotte v. Edwards, No. 08-94, 2009 WL

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10675028 at *5 (N.D.W. Va. Feb. 2, 2009). However, the undersigned does
not find that Wiedemann’s mere drawing of his taser by itself would amount
to an excessive use of force. Cf. Matthews v. Oebus, No. 14-6003, 2018
WL 1378178 at *4 (N.D. Ill. Mar. 19, 2018) [Pointing of taser, in and of
itself, did not give rise to a claim of excessive force]; Noe v. W. Virginia,
No. 10-38, 2010 WL 3025561 at *7 (N.D.W. Va. July 29, 2010) [same];
Wallace v. Poulos, No. 08-0251, 2009 WL 3216622 at *11 (N.D.N.Y. Mar.
4, 2016) [same]; Guilford v. Frost, 269 F. Supp. 3d 816, 829 (W.D. Mich.
2017) [Sixth Circuit has never held pointing a taser, as opposed to
discharging it, constitutes excessive force].
(ECF No. 70 at 16–17 n.8 (emphasis added).) The Court finds no error in the Magistrate
Judge’s discussion of these precepts. The Report analyzed Defendants’ motion for
summary judgment, and consistently found that genuine issues of material fact remained
as to all questions of Fourth-Amendment consequence. The Magistrate Judge made no
affirmative finding that Defendant Wiedemann’s use of his taser was reasonable under
the circumstances, nor would the Magistrate Judge have been right to do so given the
procedural context. Accordingly, Plaintiff’s objection is overruled.
CONCLUSION
After careful consideration of the relevant filings and the record, the Court finds
that Plaintiff’s and Defendants’ objections are without merit and the Magistrate Judge’s
conclusions are correct. Accordingly, for the reasons stated above and by the Magistrate
Judge, the Court overrules the objections, adopts the Report, and incorporates it by
specific reference herein. It is therefore ORDERED that Defendant’s motion for summary
judgment (ECF No. 60) is GRANTED in part and DENIED in part. All state law claims
(Counts 4–7) are DISMISSED without prejudice, and Defendants Charleston County
Sheriff’s Office and Donald Stanley are DISMISSED as party defendants from this
action. Moreover, Defendant Lindsay is DISMISSED as a party on Plaintiff’s excessive

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force claim only.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 22, 2019
Charleston, South Carolina

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