Isgett v. Boone et al
Filing
56
OPINION and ORDER RULING ON REPORT AND RECOMMENDATION adopting in part 53 Report and Recommendation, granting in part and denying in part 32 Motion for Summary Judgment. Signed by Honorable Cameron McGowan Currie on 2/28/2013. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Ronald Alexander Isgett, Jr.,
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Plaintiff,
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v.
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Kenny Boone, as representative for the
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Office of the Florence County Sheriff’s
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Office; Officer Travis Taylor; Officer
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Xederick Hall; and Sergeant Robin
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Flemming,
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Defendants.
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___________________________________ )
C/A NO. 8:11-02783-CMC-JDA
OPINION and ORDER
This matter is before the court on Plaintiff’s complaint, filed in this court pursuant to 42
U.S.C. § 1983. Defendants filed a motion for summary judgment, to which Plaintiff responded in
opposition.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Jacquelyn D. Austin for pre-trial proceedings
and a Report and Recommendation (“Report”). On February 1, 2013, the Magistrate Judge issued
a Report recommending that Defendants’ motion for summary judgment be granted. The Magistrate
Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and
the serious consequences if he failed to do so. Plaintiff filed has filed no objections to the Report
and the time for doing so has expired.
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.
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See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in the absence of a timely filed objection, a district court need not conduct a de novo review, but
instead must only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.”) (citation omitted).
A review of the record for clear error reveals the Report errs in its recitation of the standard
for an alleged excessive force claim. Additionally, the Report errs in making a credibility
determination of the evidence against Plaintiff, the non-moving party. For the reasons discussed
below, the court adopts the Report and Recommendation in part and grants in part and denies in
part Defendants’ motion for summary judgment.
I. SUMMARY JUDGMENT STANDARD
Summary judgment should be granted 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). It is well established that summary judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the controversy or the inferences to be drawn from
those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).
The party moving for summary judgment has the burden of showing the absence of a genuine
issue of material fact, and the court must view the evidence before it and the inferences to be drawn
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therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962).
Rule 56(c)(1) provides as follows:
(1)
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, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations . . . , admissions, interrogatory answers
or other materials; 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).
A party “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
Therefore, “[m]ere unsupported speculation . . . is not enough to defeat a summary judgment
motion.” Ennis v. National Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
II. FOURTEENTH AMENDMENT – EXCESSIVE FORCE
Excessive force claims raised by pretrial detainees are governed by the Due Process Clause
of the Fourteenth Amendment. Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). To succeed
on an excessive force claim, Plaintiff must show that Defendant Taylor “inflicted unnecessary and
wanton pain and suffering.” Id. (quotation and citation omitted). When evaluating the use of force,
the court considers factors such as “the need for the application of force, the relationship between
the need and the amount of force used, the extent of the injury inflicted, and whether the force was
applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for
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the very purpose of causing harm.” Id. (quotation and citation omitted). This analysis requires
consideration of whether the given situation required the use of force and “the relationship between
the need and the amount of force used.” Id.
III. REPORT OF THE MAGISTRATE JUDGE
The court agrees with the Report’s analysis and conclusions regarding exhaustion of
administrative remedies and dismissal of Defendants Boone and Flemming. Accordingly, the court
adopts and incorporates those portions of the Report.
Additionally, as Defendant Hall was responsible for use of a taser gun and was not involved
in the alleged assault, Defendant Hall is also entitled to summary judgment.
However, the Report errs in two respects. First, the Report indicates that “[t]o determine
whether Defendants are entitled to qualified immunity, the Court must determine whether
Defendants acted with objective reasonableness when restraining Plaintiff.” Report at 13 (ECF No.
53). The “objective reasonableness” standard is not applicable to Plaintiff’s complaint of use of
excessive force, which must be evaluated under the subjective standard used in analyzing a claim
made under the Fourteenth Amendment. Orem, 523 F.3d at 446. Accordingly, the citation of the
“objective reasonableness” standard is error.
The “objective reasonableness” standard is used when evaluating a claim of excessive force
under the Fourth Amendment. Broadly speaking, “the Fourth Amendment only governs claims of
excessive force during the course of an arrest, investigatory stop, or other seizure of a person,” while
the Due Process Clause of the Fourteenth Amendment governs excessive force claims made by a
“pretrial detainee or arrestee.” Id. (citations, quotation marks and alterations omitted); see also
Robles v. Prince George’s Cnty., Md., 302 F.3d 262, 268 (4th Cir. 2002) (“Once the single act of
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detaining an individual has been accomplished, the [Fourth] Amendment ceases to apply.” (citation
omitted)). The distinction is material because, while the court evaluates officer conduct against an
“objective reasonableness” standard for Fourth Amendment claims, the court applies a subjective
standard to Fourteenth Amendment claims. See Young v. Prince George's Cnty., Md., 355 F.3d 751,
758 (4th Cir. 2004) (subjective standard “used to adjudicate excessive force claims brought under
the Due Process clause of the Fourteenth Amendment.”).
Second, as noted above, the Report concludes Defendants should be granted summary
judgment on Plaintiff’s claim for excessive force, as “there is no evidence other than Plaintiff’s own
allegations” that he was punched in the face by Defendant Taylor. Report at 15 (ECF No. 53, filed
Feb. 1, 2013).
Plaintiff testified in his deposition that he spit on a guard after he was placed in the restraint
chair and then was punched by that same guard three (3) times on the right side of his face, resulting
in a fracture of his jaw. Defendant Taylor, who admitted in his deposition to being the officer who
was spit upon by Plaintiff, denied assaulting Plaintiff, but testified that he did touch Plaintiff’s face,
turning Plaintiff’s head from left to right. Crediting Plaintiff’s version of the events,1 this court
cannot say, as a matter of law, that punching a pretrial detainee three (3) times in the jaw after being
spit on by the detainee is an action taken in good faith to restore order.
“It is not [this court’s] job to weigh the evidence.” Gary v. Spillman, 925 F.2d 90, 95 (4th
Cir. 1991). This court “must view the facts, and all reasonable inferences that may be drawn from
those facts, in the light most favorable to the non-moving party.” Meyers v. Baltimore Cnty., Md.,
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Plaintiff, who suffered a traumatic brain injury as a result of a car accident in 2003, testified
in his deposition to several different versions of the events occurring on the evening of September
15, 2009. However, the only issue of material fact goes to whether he was hit in the face that
evening by Officer Taylor. Accordingly, inconsistencies in Plaintiff’s version of events must go to
the weight and credibility of his testimony as determined by the factfinder.
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__ F.3d __, __, 2013 WL 388125 at *4 (4th Cir. Feb. 1, 2013). Accordingly, the facts, in the light
most favorable to the non-moving party, show that a genuine issue of material fact exists as to the
narrow issue of whether Defendant Taylor used excessive force on the evening of September 15,
2009, allegedly striking Plaintiff three (3) times in the face, resulting in a fracture of Plaintiff’s jaw,
in violation of Plaintiff’s Fourteenth Amendment rights. See Davis v. Zahradnick, 600 F.2d 458,
460 (4th Cir. 1979) (holding that summary judgment is not appropriate if the resolution of material
issues depends upon credibility determinations).
The right to be free from the excessive use of force was clearly established at the time of this
incident. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979). “Although a jury ultimately may find the
officers’ version of the events is more credible, [this court] is not permitted to make such credibility
determinations when considering whether a police officer properly was held immune from suit under
the doctrine of qualified immunity.” Meyers, __ F.3d at __, 2013 WL 388125 at *7.
IV. CONCLUSION
For the reasons noted above, the court grants in part and denies in part Defendants’ motion
for summary judgment. Defendants Boone, Flemming, and Hall are granted summary judgment
and are dismissed from this matter with prejudice. Defendant Taylor is denied summary judgment
and this matter shall proceed to trial on the narrow issue discussed below during the term of court
beginning May 30, 2013.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
February 28, 2013
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