Davis v. Richland County et al

Filing 117

ORDER RULING ON REPORT AND RECOMMENDATION. The Court adopts the R & R (Dkt. No. 112 ) in part. The Court declines to adopt the R&R as to Plaintiff's intentional infliction of emotional distress claim against the individu al defendants. The Court adopts all other portions of the R&R.Defendants' Motion for Summary Judgment (Dkt. No. 76 ) is granted in part and denied in part. Defendants' motion is DENIED WITHOUT PREJUDICE as to Plaintiffs excessive force clai m against Defendant Giron with respect to her use of her firearm, DENIED as to Plaintiff's excessive force claim against Defendant Cornwell, and GRANTED as to all other claims. Thus, Defendants Richland County, Lott and Thompson are DISMISSED fr om this action. Defendants' Motion to Stay (Dkt. No. 114 ) is GRANTED. This matter is stayed pending resolution of Plaintiff's criminal charges in state court. The parties are ordered to apprise the Court of the status of those criminal charges every ninety (90) days and to notify the Court within thirty (30) days when those criminal charges are resolved. The stay will be lifted at that time. Signed by Honorable Richard M Gergel on 07/29/2014. (dsto, )

IN THE UNITED STATES DISTRICT COURT ,...
DISTRICT OF SOUTH CAROLINA
znl~

Antonio Davis,
Plaintiff,
vs.
Richland County, Sheriff Leon Lott,
Dep. Sara Giron, Dep. Adrian Thompson,
and Dep. Adam Cornwell,
Defendants.

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JUL 2C! P 4: 48

No.4: 12-cv-3429-RMG

ORDER

This matter is before the Court on both the Magistrate Judge's Report and
Recommendation ("R & R"), (Dkt. No. 112), and Defendants' Motion to Stay (Dkt. No. 114).
For the reasons stated below, the Court adopts the R & R in part, grants in part Defendants'
Motion for Summary Judgment (Dkt. No. 76), and grants Defendants' Motion to Stay (Dkt. No.
114).

I. Facts l
Defendants Thompson and Giron stopped a white Buick Lesabre for a traffic violation on
March 3, 2011. The driver and Plaintiff were asked to exit the vehicle. Defendant Giron
attempted to perfonn a Terry frisk to ensure Plaintiffhad no weapons, felt a hard object near
Plaintiff's waistband, and attempted to place Plaintiff in handcuffs for officer safety. However,
Plaintiff fled the scene. Plaintiff did not follow verbal commands to stop, and, based her

I The underlying facts are laid out in detail in the R & R with citations to the record.
(Dkt. No. 112 at 2-4). The Court adopts this portion of the R & R, and does not repeat all ofthe
facts in detail here. Instead, the Court only provides a brief summary.

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observations up to that point, Defendant Giron deployed her taser and hit Plaintiff in the
buttocks. Here, Plaintiff and Defendants' version of events diverge.
Plaintiff states that the taser incapacitated him but that Giron fired four or five shots from
her weapon, hitting Plaintiff once in the leg. Giron states that the taser had no effect on Plaintiff,
that he turned and pointed a firearm at her, and that, fearing for her life, Giron fired four shots
from her firearm at Plaintiff. Giron states that she stopped firing once she saw that Plaintiff had
thrown down his firearm and put his hands up. Plaintiff denies ever having a weapon in his
posseSSIOn.
Defendant Cornwell then arrived on the scene. According to Plaintiff, Cornwell kneed
and hit Plaintiff in the head several times before handcuffing him. Cornwell states that he
handcuffed Plaintiff and never violated Plaintiff's rights.
II. Background

Defendants' filed a motion for summary judgment as to all claims. (Dkt. No. 76). The
Magistrate Judge recommended denying summary judgment as to (1) Plaintiffs excessive force
claim against Giron with respect to her use of her firearm, (2) Plaintiff s excessive force claim
against Cornwell, and (3) Plaintiffs claim for intentional infliction of emotional distress against
individual defendants in their individual capacities. (Dkt. No. 112). The Magistrate Judge
recommended granting summary judgment as to all other claims. (Jd.). Plaintiff did not file any
objections to the R & R. Defendants objected to the Magistrate Judge's recommendation that the
three above-stated claims survive summary judgment. (Dkt. No. 115). At the same time that
Defendants filed their objections, they also filed a Motion to Stay, arguing that Plaintiff's claim

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against Defendant Giron must be stayed under Wallace v. Kato, 549 U.S. 384 (2007). (Dkt. No.
114).

III. Legal Standard
A. Report and Recommendation
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. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(I)); accord Fed. R. Civ. P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court
"must 'only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Id (quoting Fed. R. Civ. P. 72 advisory committee note). Moreover, in the
absence of specific objections to the R & R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199­
200 (4th Cir. 1983).

B. Summary Judgment
Summary judgment is appropriate "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 oflaw." Fed.R.Civ.P.
56(a). Only material facts-those "that might affect the outcome of the suit under the governing

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law"-will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242,248 (1986). A dispute about a material fact is genuine, "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party." Id.
At the summary judgment stage, the court must "construe the evidence, and all reasonable
inferences that may be drawn from such evidence, in the light most favorable to the nonmoving
party." Dash v. Mayweather, 731 F.3d 303, 310 (4th Cir. 2013). However, "the nonmoving
party must rely on more than conclusory allegations, mere speculation, the building of one
inference upon another, or the mere existence of a scintilla of evidence." Id. at 311.
IV. Defendants' Summary Judgment Motion
A. Section 1983 Claims against Defendants in their Official Capacities
The Magistrate Judge found that any Section 1983 claims against the Defendants in their
official capacities are barred by the Eleventh Amendment. (Dkt. No. 112 at 5-6). No party
objected to this finding, and the Court agrees. Therefore, any such claims are dismissed with
prejudice.
B. Defendants Lott and Richland County
The Magistrate Judge found that Plaintiff had failed to put forward any evidence of a
widespread pattern of excessive force by officers in Richland County and that summary judgment
should be granted as to Plaintiffs Section 1983 claims against Richland County and Lott. (Dkt.
No. 112 at 6-7). No party objected to this finding, and the Court agrees. Therefore, Plaintiffs
Section 1983 claims against Richland County and Lott are dismissed with prejudice.

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C. Racial Profiling

The Magistrate Judge found that Plaintiff failed to put forward any evidence, other than
conclusory speculation, of racial profiling or racial discrimination by Defendant Giron. (Dkt.
No. 112 at 10-11). Thus, the Magistrate Judge recommended granting summary judgment on
this claim. No party objected to this finding, and the Court agrees that Plaintiff has put forward
no evidence other than conclusory speculation. Therefore, this claim is dismissed with prejudice.
D. Defamation
The Magistrate Judge found that because Plaintiff failed to identify any specific language
or statements said about him by Lott or Giron, his defamation claim must fail. (Dkt. No. 112 at
14-15). No party has objected to this finding. The Court agrees that Plaintiff has failed to
identify a false and defamatory statement; therefore, this claim is dismissed with prejudice.
E. Intentional Infliction of Emotional Distress
The Magistrate Judge found that because the South Carolina Tort Claims Act (SCTCA)
specifically excludes claims for intentional infliction of emotional harm that such a claim is not
cognizable against Richland County. (Dkt. No. 112 at 14). No party has objected to this finding,
and the Court agrees.
However, the Magistrate Judge found that because the SCTCA does not provide
immunity to governmental employees for acts constituting actual fraud, actual malice, or intent to
harm, it does not bar Plaintiff's claims for intentional infliction of emotion distress against the
individual defendants and that, because Defendants did not address Plaintiff's claim as to the
individual Defendants, the claim should move forward. (ld. at 13-14). Defendants object to this
finding arguing that (1) because Defendants were acting within the scope of their official duties,

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the SCTCA bars the claim and (2) that PlaintifIfailed to even plead a claim for intentional
infliction of emotional distress. (Dkt. No. 115 at 9-10).
S.C. Code Ann. § 15-78-70(b) provides that "[n]othing in this chapter may be construed
to give an employee of a governmental entity immunity from suit and liability if it is proved that
the employee's conduct was not within the scope of his official duties or that it constituted actual
fraud, actual malice, intent to harm, or a crime involving moral turpitude." Thus, if an
intentional infliction of emotional distress claim alleges actual malice or intent to harm, then the
SCTCA does not bar the claim. 2 Smith v. Ozminf, 394 F. Supp. 2d 787, 792 (D.S.C. 2005);

accord DiLorenzo v.

s.c. Dep 'f ofCorr., No. 2:10-cv-2356, 2010 WL 5389994 at * 3 (D.S.C.

Dec. 22, 2010). Here, however, Plaintiff does not allege actual malice or intent to harm. His
only allegation concerning the claim is to request damages for "post-traumatic stress" in the relief
section of his Complaint. (Dkt. No.1 at 5). Because Plaintiff has not alleged that Defendants
intentionally inflicted emotional distress the claim is barred by the SCTCA. 3

F. Excessive Force Claims against Defendant Giron
The Magistrate Judge recommended granting summary judgment as to Plaintiffs claim
that Defendant's Giron use of her taser was excessive force because "[c]ourts have held that use

2 A Plaintiff can state a claim for infliction of emotional distress by alleging that the
defendant acted recklessly, rather than intentionally. See Bass v. S.c. Dep 'f ofSoc. Servs., 742
S.E.2d 667,672 (S.C. Ct. App. 2013) (reciting elements of an intentional infliction of emotional
distress claim). Such claims fall outside of Section 15-78-70(b) and would be barred by the
SCTCA. Therefore, to the extent that the Magistrate Judge held that all claims for intentional
infliction of emotional distress against individuals fall outside of the SCTCA, the Court declines
to adopt the R & R.

The Court declines to adopt the R & R as to Plaintiffs intentional infliction of
emotional distress claim against the individual defendants. The Court adopts all other portions of
the R& R.
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of a taser gun to subdue a belligerent suspect who has repeatedly ignored police instructions is
not excessive." (Dkt No. 112 at 9 (citing cases». No party has objected to this finding, and the
Court agrees that summary judgment is appropriate. Under the undisputed facts recounted by the
Magistrate, it was not unreasonable for Giron to use her taser to stop Plaintiff who was resisting
seizure and refusing to obey oral commends. The Court also agrees with the Magistrate Judge's
finding that Defendant Giron is entitled to qualified immunity on this claim.
However, because of the disputed facts surrounding Giron's use of her firearm, the
Magistrate Judge recommended denying summary judgment as to this excessive force claim.
(Dkt. No. 112 at 9-10). Defendants do not appear to object to the Magistrate Judge's finding that
summary judgment is inappropriate under Plaintiff's version of events but argue that Plaintiffs
version of events cannot be believed. Defendants argue that Plaintiffs verified complaint is a
"self-serving affidavit" that cannot defeat summary judgment and that the Court must accept as
fact that Plaintiff was pointing a weapon at Giron when she fired. (Dkt. No. 115 at 2 n.3, 3, 4
n.5). Defendants are incorrect. Recently, the Fourth Circuit explicitly held in a Section 1983
case that "the record could defeat summary judgment even if the evidence consisted exclusively
of so-called 'self-serving' declarations from [the plaintiff] himself." Mann v. Failery, - - - Fed.
App'x - - - -, 2014 WL 3511878 at *5 n.2 (July 17,2014). The Fourth Circuit went on to note
that the Court may not make credibility determinations in reviewing the record on summary
judgment.

Id. Therefore, Defendants' objections are overruled. The Court finds that there is a

genuine dispute of fact as to the circumstances the occurred immediately prior to the deadly force
used by Giron when she shot Plaintiff.

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The Magistrate Judge went on to find that Giron was not entitled to qualified immunity
because at the time of her conduct, it was clearly established that an officer may not seize an
unarmed, non-dangerous suspect by using deadly force. (Dkt. No. 112 at 12). Again, Defendants
object to this finding because they believe it undisputed that Giron was threatened with a
weapon. (Dkt. No. 115 at 7). If it were undisputed that Giron was threatened with a weapon,
summary judgment would be appropriate. See Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).
However, this fact is in dispute. Thus, summary judgment is not appropriate.

G. Excessive Force Claim against Defendant Cornwell
The Magistrate Judge also recommended denying summary judgment as to the excessive
force claim against Defendant CornwelL (Okt. No. 112 at 10). Viewing the evidence in the light
most favorable to Plaintiff, Plaintiff had been tased and shot and was fully subdued when
Cornwell arrived on the scene. Cornwell then kneed Plaintiff and hit him in the head several
times before handcuffing him.
Defendants again object that there is no evidence of Cornwell's purported conduct other
than Plaintiff's testimony. (Dkt. No. 115 at 8 n.8, 9). As explained above, Plaintiff's testimony
is enough to defeat summary judgment. Defendants also argue that even if Plaintiffs version of
events are true, "Plaintiff has failed to put forth any evidence to show that any force used against
him was excessive for the purposes of a constitutional claim." (Dkt. No. 115 at 9). However,
under Plaintiff's version of events, he was tased, shot and fully subdued. No force was needed to
handcuff and seize him. Even Defendant Giron testifies that Plaintiff had dropped his weapon
and that his hands in the air when she stopped shooting. Unnecessary and gratuitous force used

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to seize and unarmed suspect is objectively unreasonable and is excessive for the purposes of a
constitutional claim. Baileyv. Kennedy, 349 FJd 731, 744-45 (4th Cir. 2003).
The Magistrate Judge also found that Cornwell was not entitled to qualified immunity.
The Defendants did not object to this finding, and the Court agrees. See id. ("[C]ourts have
consistently applied the Graham holding and have consistently held that officers using
unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen, do not act
in an objectively reasonable manner and, thus, are not entitled to qualified immunity.").
Therefore, the Court denies Defendants' motion for summary judgment as to the excessive force
claim against Defendant Cornwell.

V. Motion to Stay
Defendants ask that the Court stay this case because a determination on Plaintiff's
excessive force claim against Defendant Giron could be inconsistent with the verdict in
Plaintiffs pending criminal cases. (Dkt. No. 114). In particular, Plaintiff was indicted for
"pointing and presenting a firearm at a person" for pointing a firearm at Giron on March 3,
2011.4 (Dkt. No. 76-6 at 10). If Plaintiff were convicted of this charge, a finding for Plaintiff on
his excessive force claim against Giron would imply the invalidity of the conviction. As
explained above, a claim for excessive force cannot succeed if Plaintiff pointed a firearm at
Giron. See, e.g., Tennessee v. Garner, 471 U.S. 1, 11-12 (1985) ("[I]fthe suspect threatens the
officer with a weapon ... deadly force may be used if necessary to prevent escape. ").

4 Plaintiff was also indicted on a charges of resisting arrest with a deadly weapon and
attempted murder for attempting to kill Giron. (Dkt. No. 76-6 at 14, 16).

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In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a state prisoner
cannot bring a Section 1983 suit for damages where a judgment in favor of the prisoner would
necessarily imply the invalidity of his conviction or sentence. ld. at 486-87. In Wallace v. Kala,
549 U.S. 384 (2007), the Supreme Court clarified that Heck does not apply in the pre-conviction
setting. ld. at 393. The Court went on to state that a stay of the Section 1983 action is
appropriate in such instances:
If a plaintiff files a false-arrest claim before he has been convicted (or files any
other claim related to rulings that will likely be made in a pending or anticipated
criminal trial), it is within the power of the district court, and in accord with
common practice, to stay the civil action until the criminal case or the likelihood
of a criminal case is ended.... If the plaintiff is ultimately convicted, and if the
stayed civil suit would impugn that conviction, Heck will require dismissal;
otherwise, the civil action will proceed, absent some other bar to suit.

ld. at 393-94. Therefore, the Court finds a stay of Plaintiffs excessive force claim against Giron
appropriate under Wallace.
Defendants acknowledge that the criminal charges against Plaintiff did not implicate
Plaintiffs claim against Defendant Cornwell. (Dkt. No. 114-1 at 2 n.2). However, they ask that
the Court stay this matter in its entirety in the interest ofjudicial economy. The Court agrees and
will stay the entire matter.

VI. Conclusion
The Court adopts the R & R (Dkt. No. 112) in part. The Court declines to adopt the
R & R as to Plaintiff's intentional infliction of emotional distress claim against the individual
defendants. The Court adopts all other portions of the R & R.
Defendants' Motion for Summary Judgment (Dkt. No. 76) is granted in part and denied in
part. Defendants' motion is DENIED WITHOUT PREJUDICE as to Plaintiffs excessive

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force claim against Defendant Giron with respect to her use of her firearm, DENIED as to
Plaintiffs excessive force claim against Defendant Cornwell, and GRANTED as to all other
claims. Thus, Defendants Richland County, Lott and Thompson are DISMISSED from this
action.
Defendants' Motion to Stay (Dkt. No. 114) is GRANTED. This matter is stayed pending
resolution of Plaintiffs criminal charges in state court. The parties are ordered to apprise the
Court of the status of those criminal charges every ninety (90) days and to notifY the Court within
thirty (30) days when those criminal charges are resolved. The stay will be lifted at that time.

AND IT IS SO ORDERED.

July .).1 ,2014
Charleston, South Carolina

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