Brown v. Mt Pleasant Police Department et al

Filing 79

ORDER RULING ON REPORT AND RECOMMENDATION for 70 Report and Recommendation, 64 Motion for Summary Judgment, filed by Officer Skipper, Sergeant Fennell, Operator Fishburne. The court, therefore, ADOPTS the magistrate judges Report (ECF No. 70) and GRANTS Defendants motion for summary judgment (ECF No. 64) as to the remaining claims against Defendants in their individual capacities. Signed by Honorable Timothy M Cain on 2/16/2021. (kric, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Tony Lee Brown,

)
)
Plaintiff,
)
)
v.
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)
)
Operator Fishburne, Officer Skipper, )
and Sergeant Fennell,
)
)
Defendants.
)
________________________________)

Civil Action No. 6:19-cv-3300-TMC
ORDER

Plaintiff Tony Lee Brown, proceeding pro se, brought this action under 42
U.S.C. § 1983, alleging that Defendants used unconstitutionally excessive force
against him while he was a pretrial detainee. (ECF No. 30). The court construed
Plaintiff’s action as asserting claims against Defendants in both their individual and
official capacities. (ECF No. 72 at 2). The case was referred to a magistrate judge
for all pretrial proceedings pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(e) (D.S.C.). On January 19, 2021, the court granted Defendants’ motion
to dismiss (ECF No. 42) Plaintiff’s claims against Defendants in their official
capacities. (ECF No. 72 at 4). Defendants then filed this motion for summary
judgment as to Plaintiff’s remaining individual capacity clams. (ECF No. 64). Now
before the court is a Report of the magistrate judge recommending that Defendants’
motion for summary judgment be granted (ECF No. 70 at 10). Plaintiff filed

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objections to the Report (ECF No. 77). The matter is now ripe for review by this
court.
Standard of Review
The recommendations set forth in the Report have no presumptive weight, and
this court remains responsible for making a final determination in this matter.
Wimmer v. Cook, 774 F.2d 68, 72 (4th Cir. 1985) (quoting 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 a specific objection is made,
and the court may accept, reject, 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). However, the court need only review for clear error “those portions which
are not objected to—including those portions to which only ‘general and conclusory’
objections have been made[.]” Dunlap v. TM Trucking of the Carolinas, LLC, 288
F. Supp. 3d 654, 662 (D.S.C. 2017). “An objection is specific if it ‘enables the
district judge to focus attention on those issues—factual and legal—that are at the
heart of the parties’ dispute.’” Id. at 662 n.6 (quoting United States v. One Parcel
of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, Known As:
2121 E. 30th St., Tulsa, Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)). On the other
hand, objections which merely restate arguments already presented to and ruled on
by the magistrate judge or the court do not constitute specific objections. See, e.g.,
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Howard v. Saul, 408 F. Supp. 3d 721, 726 (D.S.C. 2019) (noting “[c]ourts will not
find specific objections where parties ‘merely restate word for word or rehash the
same arguments presented in their [earlier] filings’”); Ashworth v. Cartledge, Civ.
A. No. 6:11-cv-01472-JMC, 2012 WL 931084, at *1 (D.S.C. March 19, 2012)
(noting that objections which were “merely almost verbatim restatements of
arguments made in his response in opposition to Respondent’s Motion for Summary
Judgment . . . do not alert the court to matters which were erroneously considered
by the Magistrate Judge”). Furthermore, in the absence of specific objections to the
Report, the court is not required to give any explanation for adopting the magistrate
judge’s recommendation. Greenspan v. Brothers Prop. Corp., 103 F. Supp. 3d 734,
737 (D.S.C. 2015) (citing Camby v. Davis, 718 F.2d 198, 199–200 (4th Cir. 1983)).
Discussion
The evidence presented to the court is fully and thoroughly set forth in the
Report. (ECF No. 70 at 1–4). Accordingly, the court need only briefly recount the
facts here. Plaintiff alleges that Operator Fishburne choked him with both hands
even though Plaintiff was already in handcuffs and that Officer Skipper and Sergeant
Fennell “watched and aided.” (ECF No. 30 at 5–6). Defendants submitted affidavits
indicating that on June 23, 2018, Plaintiff was charged with assaulting his cellmate.1

1

Defendants presented evidence of numerous disciplinary violations by Plaintiff in
the month leading up to the incident at issue. (ECF Nos. 64-1; 64-3 at 2). 
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(ECF No. 64-3 at 2–3). As a result, Plaintiff was removed from his cell by Operator
Fishburne and other members of the Special Operations Group (“SOG”) and placed
in a cell in the Special Management unit. Id. at 3. SOG operators are “specially
trained to handle potential high-risk inmates, riots, hostage situations, escapes, and
cell extractions.” Id. at 1.
Officer Skipper prepared Plaintiff’s cell in the Special Management unit and
exited the cell so that Operator Fishburne and other officers could place Plaintiff in
the cell. Id. at 3. According to his affidavit, Operator Fishburne directed Plaintiff to
“get on his knees, place his chest on the bed, allow [the officers] to remove the
handcuffs, and then remain with his chest on the bed while [the officers] exited the
cell.” Id. Plaintiff refused to comply, however, repeatedly trying to raise up and flip
over onto his back. Id. Eventually, Plaintiff freed himself of the officers’ grasp and
Operator Fishburne was forced to use the mattress pad both to control plaintiff and
shield himself from Plaintiff. Id. Operator Fishburne stated that Plaintiff’s “actions
made it clear to us that he was looking to attack us” and “[t]he situation was
especially dangerous as [Plaintiff] had waited until his handcuffs were removed
before he struggled free of our control.” Id. at 4. Accordingly, Operator Fishburne
and the other SOG operators attempted to handcuff Plaintiff again but Plaintiff
resisted and refused to comply with any commands. Id. In order to subdue Plaintiff,
one of the other SOG operators deployed her taser, allowing Operator Fishburne and
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the other SOG team members to gain control of Plaintiff with Operator Fishburne
holding Plaintiff’s legs and two other officers holding Plaintiff’s upper body. Id.
Operator Fishburne stated in his affidavit that he never placed his hands around
Plaintiff’s neck or attempted to choke him. Id. Sergeant Fennell arrived in the Special
Management unit after the incident had been resolved. (ECF No. 64-7). In response
to Defendants’ motion for summary judgment, Plaintiff challenged his arrest and
detention rather than the incident at issue. (ECF No. 67).
In the Report, the magistrate judge considered the factors set forth in Kingsley
v. Hendrickson, 576 U.S. 389, 397 (2015), in determining whether the force used by
Operator Fishburne was objectively reasonable under the circumstances. (ECF No.
70 at 6–7). The magistrate judge concluded that, viewing the evidence in a light most
favorable to the plaintiff, the force employed by Operator Fishburne was objectively
reasonable given Plaintiff’s active resistance to the correctional officers,
noncompliance with directions, and escape from the officers’ which created “a
security problem, as they were dealing with an individual with a history of
disciplinary problems, without handcuffs, and resisting their directions and
instructions.” Id. The magistrate judge noted further that Plaintiff failed to come
forward with any evidence supporting his allegations that Operator Fishburne
choked him. Id. at 8. As to Officers Skipper and Fennell, the magistrate judge found
no evidence they were involved in the use of force against Plaintiff and, therefore,
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construed Plaintiff’s allegations as asserting a claim of bystander liability. Id. The
magistrate judge concluded that Plaintiff failed to establish a claim of bystander
liability against Officer Skipper and Sergeant Fennell because Plaintiff failed to
show an underlying constitutional violation in the first instance. Id. Finally, the
magistrate judge determined that Defendants were entitled to qualified immunity
because Plaintiff did “not demonstrate[] that the defendants violated his
constitutional rights.” Id. at 9. Accordingly, the magistrate judge recommended that
the court grant the motion for summary judgment as to Plaintiff’s claims against all
three Defendants in their individual capacities.
On February 1, 2021, Plaintiff filed objections challenging Officer
Fishburne’s affidavit rather than the Report. (ECF No. 77). Plaintiff asserts, for the
first time, that he could not have assaulted his cell mate because “when you get
booked into Al Cannon’s Detention Center you do not have a cell mate.” Id. at 1.
Plaintiff also stated that Operator Fishburne was not being truthful in his affidavit
when he claimed he made no attempt to choke Plaintiff. Id. Plaintiff appears to claim
that the falsity of Operator Fishburne’s claim is reflected by the fact that “all
incidents” must be recorded and Defendants have not submitted a video of the
incident—presumably suggesting that Defendants have something to hide. Id.
Plaintiff does not challenge the magistrate judge’s analysis of his claims as to any of
the Defendants nor does he object to the magistrate judge’s statement that Plaintiff’s
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response to Defendants’ motion for summary judgment does not discuss the merits
of his allegations but instead made irrelevant assertions against the Mt. Pleasant
Police Department regarding his underlying arrest.
Plaintiff’s objections do not address the Report in any way; rather, he has
attempted to use his objections as a means of raising new claims and allegations.
This court, however, does not have a duty to review newly raised facts or claims in
objections to a Report. See Samples v. Ballard, 860 F.3d 266, 275 (4th Cir. 2017)
(holding that there is “no obligation for the district court to hear either of the new
claims . . . in objections”); Sullivan v. McMaster, No. 6:18-cv-1425, 2018 WL
3727358, at *2 (D.S.C. Aug. 6, 2018) (“This is a new ground for relief, and the
Fourth Circuit has explained that a district court does not have a duty to review newly
raised issues in objections to a R&R.”); Backus v. Cox, No. 4:13-CV-00881-RBH,
2013 WL 5707328, at *2 (D.S.C. Oct. 18, 2013) (“Plaintiff, however, cannot use his
objections to plead new claims or cure the factual defects of his existing claims
against Defendant.”). Furthermore, Plaintiff cannot use his objections to bolster his
response to Defendants’ motion for summary judgment. The magistrate judge
entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
advising Plaintiff that an adequate summary judgment response required “an
explanation of your version of the facts . . . and . . . your legal argument regarding
why the court should not grant the motion” and “that you support your version of all
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disputed facts with material such as depositions, documents, electronically stored
information, affidavits or declarations, stipulations.” (ECF No. 65 at 2). Plaintiff was
warned that “[i]f [he] fail[ed] to dispute the defendant’s version of the facts with
proper support of [his] own version, the court may consider the defendant’s facts as
undisputed” and that “[his] failure to support facts in dispute with such material may
result in the court granting the motion.” Id. Plaintiff failed to make an adequate
response (ECF No. 67) and should not be able to use his objections to make an end
run around the magistrate judge’s Roseboro order.
Having thoroughly reviewed the record, the Report, and Petitioner’s
objections, the court finds no reason to deviate from the Report’s recommended
disposition. The court, therefore, ADOPTS the magistrate judge’s Report (ECF No.
70) and GRANTS Defendants’ motion for summary judgment (ECF No. 64) as to
the remaining claims against Defendants in their individual capacities.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
February 16, 2021
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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