Robinson v. Florence County Police Department et al
Filing
94
ORDER RULING ON REPORT AND RECOMMENDATION: The court overrules Plaintiff's objections and adopts and incorporates by reference the Report and Recommendation (ECF No. 86 ) of the Magistrate Judge. Defendant Officer Brown's (ECF No. 74 ) motion for summary judgment is GRANTED. This case is hereby DISMISSED with prejudice.IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 09/19/2016. (dsto, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Paul D. Robinson,
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Plaintiff,
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v.
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Officer A. Brown,
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Defendant.
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______________________________)
Civil Action No.: 4:15-cv-00387-RBH
ORDER
Plaintiff, Paul D. Robinson, currently incarcerated at Kirkland Reception and Evaluation
Center in Columbia, South Carolina and proceeding pro se, brought this action pursuant to 42
U.S.C. § 1983 alleging excessive force during the course of his arrest following a high speed chase
in a stolen car. Plaintiff alleges that he was lying on his stomach on the ground with his hands
behind his head when Defendant Officer Brown kicked him in the face two times. Plaintiff also
alleges that immediately after he was kicked, he was shot while face down with his hands behind his
head. Plaintiff alleges he will never walk the same and seeks $25 million dollars in damages or his
freedom. [Complaint, ECF No. 1 at 5].
Officer Brown maintains that his firearm discharged
accidentally as he was attempting to holster his weapon. On December 22, 2015, Officer Brown
moved for summary judgment [ECF No. 74] arguing that the accidental discharge of his firearm did
not amount to a Fourth Amendment violation and that he is entitled to qualified immunity.
This matter is before the court with the Report and Recommendation (“R&R”) [ECF No. 86]
of Magistrate Judge Kaymani D. West filed on February 19, 2016.1 The Magistrate Judge
recommended that Officer Brown’s motion for summary judgment be granted and this case
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This matter was referred to Magistrate Judge Gossett pursuant to 28 U.S.C. § 636(b), and Local
Civil Rule 73.02(B)(2).
dismissed based on her recommendation that no Fourth Amendment violation occurred and that,
alternatively, Officer Brown is entitled to qualified immunity. Plaintiff timely filed objections to the
R&R on March 7, 2016. Officer Brown filed a reply to Plaintiff’s objections on March 24, 2016.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the 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 R & R 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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a party
makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the
[M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence of objections
to the R & R, the Court is not required to give any explanation for adopting the recommendation.
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of objections, the Court
must “‘satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
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Summary Judgment Standard
“The court shall 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)
(2010). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). When no genuine issue of any
material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929 F.2d 1009, 1011 (4th
Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most
favorable to the non-moving party. Id. However, "the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986).
"Once the moving party has met [its] burden, the nonmoving party must come forward with
some evidence beyond the mere allegations contained in the pleadings to show that there is a genuine
issue for trial." Baber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The nonmoving
party may not rely on beliefs, conjecture, unsupported speculation, or conclusory allegations to defeat
a motion for summary judgment. See Baber, 977 F.2d at 875. Rather, the nonmoving party is required
to submit evidence of specific facts by way of affidavits, depositions, interrogatories, or admissions to
demonstrate the existence of a genuine and material factual issue for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
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Discussion
Where an excessive force claim arises in the context of an arrest, the claim should be
characterized as one invoking the protections of the Fourth Amendment and its prohibition against
unreasonable seizures of the person. Graham v. Connor, 490 U.S. 386, 395 (1989). Thus, “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, 490 U.S. at 395.
“A person is seized by the police and thus entitled to challenge the government’s action
under the Fourth Amendment when the officer, ‘by means of physical force or show of
authority,’ terminates or restrains his freedom of movement.” Brendlin v. California, 551 U.S.
249, 254 (2007) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). But a “seizure does not
occur whenever there is a governmentally caused termination of an individual’s freedom of
movement. . . .” Brower v. County of Inyo, 489 U.S. 593, 596–97 (1989). Instead, an individual
is “seized” under the Fourth Amendment “only when there is a governmental termination of
freedom of movement through means intentionally applied.” Id. at 597 (emphasis in original);
see also Watson v. Bryant, 532 F. App’x 453, 457 (5th Cir. 2013) (“The Supreme Court and this
circuit have long held that Fourth Amendment violations occur only through intentional
conduct.”); Brown v. City of Charleston, No. 2:12-CV-01865-DCN, 2013 WL 4436398, at *4
(D.S.C. Aug. 15, 2013) (“[T]he court must still decide whether the officer’s actions were willful
rather than accidental.”).
The Magistrate Judge concluded that Officer Brown accidentally discharged his weapon,
wounding both himself and Plaintiff. Relying on multiple circuit and district court opinions holding
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that an accidental shooting does not amount to a violation of the Fourth Amendment, the Magistrate
Judge concluded that Plaintiff was not seized for purposes of the Fourth Amendment. See e.g.,
Guerra v. Montgomery Cty., Md., 118 F. App’x 673, 675 (4th Cir. 2004) (“The district court
presumably believed that the shooting itself did not violate the Fourth Amendment because it was
accidental.”); Glasco v. Ballard, 768 F. Supp. 176, 180 (E.D. Va. 1991) (“[A] more appropriate
understanding of the case law, as well as the history of the Fourth Amendment, suggests that a
wholly accidental shooting is not a ‘seizure’ within the meaning of the Fourth Amendment.”); Hicks
v. Leake, 821 F. Supp. 419 (W.D. Va. 1992) (holding that because driver was not object of police
chase, there was no “seizure” necessary to show violation of Fourth Amendment rights); Rucker v.
Harford Cty., Md., 946 F.2d 278, 282 (4th Cir.1991) (“[W]e still would conclude that given the
exigencies of the situation, his accidental shooting of Rucker would not have constituted the kind of
‘oppressive’ abuse of governmental power, see Daniels, 474 U.S. at 331, against which substantive
due process gives protection.”); Watson v. Bryant, 532 F. App’x 453, 457 (5th Cir. 2013) (“In the
absence of evidence showing that Bryant intended to use deadly force, we must conclude that the
negligent shooting here did not itself violate Watson’s Fourth Amendment rights.”); McCoy v. City
of Monticello, 342 F.3d 842, 848 (8th Cir. 2003) (finding that though facts established a seizure
occurred, the officer who accidentally shot a motorist acted objectively reasonable, entitling him
to qualified immunity); Pleasant v. Zamieski, 895 F.2d 272, 276–77 (6th Cir. 1990) (accidental
shooting did not violate the Fourth Amendment); Leber v. Smith, 773 F.2d 101, 104–05 (6th Cir.
1985) (holding that plaintiff’s unreasonable-seizure claim failed as a matter of law in an
accidental shooting case and, therefore, declining to reach qualified immunity); Dodd v. City of
Norwich, 827 F.2d 1, 7 (2d Cir. 1987) (reversing its decision on rehearing and finding no Fourth
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Amendment violation or municipal negligence was responsible for “the inadvertent shooting of
an already apprehended burglar during a struggle initiated by him in an attempt to disarm the
arresting officer and after he had apparently surrendered [when] [t]he shooting was a pure
accident”).
In his objections to the Magistrate Judge’s R&R, Plaintiff argues that the “Florence County
Police Department of the City of Florence” should not have been dismissed from this lawsuit
because Officer Brown was acting in his official capacity. However, as explained in the prior Order
dismissing the Florence Police Department and Florence County Sheriff’s Department [ECF No.
29], those entities are not “persons” subject to suit under § 1983. See Kane v. Beaufort Cnty.
Sheriffs Dept., No. 9:14-508-RMG, 2015 WL 404570, at * (D.S.C. Jan. 29, 2015) (“[U]nder 42
U.S.C. § 1983, only a “person” may be sued. A department is not a person subject to suit under §
1983.”).
Plaintiff also asks the Court to grant suit for the City of Florence (i.e. add the City as a
defendant), which currently employs Officer Brown. Plaintiff did not originally name the City of
Florence as a defendant in this case and the deadline for motions to amend pleadings has long since
passed. Finding no good cause, the Court denies Plaintiff’s request to the extent he seeks to add the
City of Florence as a defendant at this late date. See Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co.,
986 F. Supp. 959, 980 (D.S.C. 1997) (Where a motion to amend the pleadings and join additional
parties is filed after the scheduling order deadline, a movant must first demonstrate to the court that
it has a “good cause” for seeking modification of the scheduling deadline under Rule 16(b)).
Additionally, there is no vicarious liability in § 1983 actions and there is no claim of official custom
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or policy. As such, any amendment would be futile. See Monell v. Dept. of Social Services of City
of New York, 436 U.S. 658 (1978).
Next, Plaintiff appears to object to the Magistrate Judge’s characterization of the shooting as
accidental. Plaintiff argues that while he was laying face down, Officer Brown kicked him with his
left leg two times. Plaintiff’s allegation suggests that the shooting occurred as a result of Officer
Brown kicking Plaintiff in the face, as opposed to the Officer’s version that when he went to holster
his weapon, his arm got tangled in vines and branches, and accidentally discharged. [ECF No. 88 at
6-7; ECF No. 84 at 5 (“Inv. Brown used excessive force kicking me in my face, which cause[d] his
gun to go off”)]. Regardless of the Plaintiff’s version, it is undisputed that Officer Brown was
accidentally shot along with the Plaintiff. Viewing the evidence in the light most favorable to
Plaintiff, including all of his sworn statements and verified pleadings, there is no non-speculative
basis to conclude that the shooting was anything other than accidental. The Court agrees with the
Magistrate Judge’s analysis on this claim.
To the extent Plaintiff seeks recovery based on being kicked in the face apart from the
accidental gunshot, the Court finds that the force of allegedly kicking Plaintiff in the face, which
caused no discernible facial injuries, was objectively reasonable and not excessive. Excessive force
claims are evaluated under the Fourth Amendment’s objective reasonableness standard. Wilson v.
Flynn, 429 F3d 465, 468 (4th Cir. 2005). In determining whether a Fourth Amendment violation
occurred, the Court must “weigh the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Bailey v. Kennedy,
349 F.3d 731, 743 (4th Cir. 2003). The test is not capable of precise definition or mechanical
application and requires careful attention to the facts and circumstances of each particular case.
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Bailey, 349 F.3d at 743. The relevant facts and circumstances include “the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing
Graham v. Connor, 490 U.S. 386, 396 (1989)). “The extent of the plaintiff’s injury is also a
relevant consideration.” Bailey, 349 F.3d at 743. “The question is whether the totality of the
circumstances justified a particular sort of seizure.” Jones v. Buchanan, 325 F.3d 520, 527-28 (4th
Cir. 2003).
Plaintiff led law enforcement on a high speed chase through Florence, South Carolina in a
car that had been reported stolen. Radio transmissions from dispatch indicated that Plaintiff should
be considered armed and dangerous. The high speed chase continued through heavy traffic and
passed several businesses and crowded areas. Plaintiff jumped out of his vehicle while it was
moving and continued to flee on foot into a wooded area. Shortly thereafter, Officer Brown
discovered Plaintiff lying face down in the wooded area.
Turning to the Graham factors, Plaintiff was charged with serious offenses arising from the
high speed chase including assault and battery first degree, possession of a stolen vehicle,
possession of stolen goods, failure to stop for a blue light, possession of marijuana, and leaving the
scene of an accident. The first factor - the severity of the crime at issue - weighs against the
Plaintiff.
The second factor - whether a reasonable officer could have perceived Plaintiff as an
immediate threat to the safety of officers or others - also weighs against the Plaintiff. Plaintiff was
thought to be armed and dangerous and the dashcam videos submitted along with Defendant’s
motion for summary judgment confirm that Plaintiff led police on a reckless high speed chase
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through downtown Florence speeding through red-lights at several heavily traveled intersections.
The chase continued through heavy traffic until Plaintiff eventually jumped from his moving vehicle
in an attempt to escape into the woods on foot. The vehicle then crashed into a utility pole. When
Officer Brown discovered Plaintiff lying on his stomach, Plaintiff appeared to Officer Brown to be
hiding. Under the totality of the circumstances, a reasonable officer would have perceived Plaintiff
as a continuing and immediate threat when he was discovered by Officer Brown in a heavily
wooded area with vines and bushes, which Officer Brown had to crouch down to get through to get
to Plaintiff.
The third factor - whether Plaintiff was actively resisting arrest or attempting to evade arrest
by flight - weighs in favor of Plaintiff but does not change the result of this case. Viewing the facts
in the light most favorable to the Plaintiff, he was arguably not actively resisting when Officer
Brown discovered him lying on his stomach. However, Plaintiff had just led officers on a lengthy
chase and was in a wooded area with bushes and vines and could have easily decided to take
advantage of the surroundings and attempt to flee again.
Nevertheless, the final consideration - the extent of Plaintiff’s injury - indicates that the level
of force used by Officer Brown was not excessive and was objectively reasonable. Plaintiff has not
alleged any injuries to his face as a result of being kicked. Plaintiff complains of injuries to his leg
and penis and claims difficulty walking as a result of those injuries but does not allege any facial
injuries.
Based on the totality of the circumstances, Officer Brown’s alleged use of force by kicking
Plaintiff in the face twice was objectively reasonable and was an objectively reasonable means to
subdue Plaintiff who was considered armed and dangerous and had led police on a high speed chase
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through heavy traffic endangering scores of innocent bystanders. Accordingly, viewing the
evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff was not seized within
the meaning of the Fourth Amendment. There is no competent evidence to suggest the shooting
was intentional or that the alleged kicks to the face were excessive.
The Magistrate Judge also found that in the event the Court finds that a constitutional
violation occurred, Officer Brown should be granted qualified immunity. Plaintiff did not lodge a
specific objection to the Magistrate Judge’s recommendation as to qualified immunity. Finding no
clear error, the Court therefore adopts without objection the Magistrate Judge’s recommendation
that Officer Brown is entitled to qualified immunity.
Conclusion
Having reviewed the record and applicable law, the court agrees with the recommendations
of the Magistrate Judge and finds that the Magistrate Judge correctly applied the law to the facts of
this case and that Defendant Officer Brown is entitled to summary judgment. The court has
reviewed Plaintiff’s objections and finds that they are without merit. The court overrules Plaintiff’s
objections and adopts and incorporates by reference the Report and Recommendation [ECF No. 86]
of the Magistrate Judge. Defendant Officer Brown’s [ECF No. 74] motion for summary judgment
is GRANTED. This case is hereby DISMISSED with prejudice.
IT IS SO ORDERED.
September 19, 2016
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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