Brooks v. Hill Finklea Detention Center et al
ORDER adopting 204 Report and Recommendation; granting 176 Motion for Summary Judgment; denying 198 Motion for Summary Judgment; denying 203 Motion for Contempt; denying 218 Motion for Extension of Time to File Res ponse/Reply re 204 REPORT AND RECOMMENDATION re 176 MOTION for Summary Judgment filed by Berkeley County Sheriff's Office, Officer Fludd, Captain Jackelman. Signed by Honorable Patrick Michael Duffy on 08/03/2017. (egra, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Captain Jacumin, Officer Fludd, and
Berkeley County Sheriff’s Office,
C.A. No.: 9:15-cv-2677-PMD-BM
This matter is before the Court on Plaintiff’s objections to Magistrate Judge Bristow
Marchant’s Report and Recommendation (“R & R”) (ECF Nos. 217, 214, & 204). In his R & R,
Magistrate Judge Marchant recommends granting Defendants’ motion for summary judgment.
For the reasons stated herein, the Court adopts the R & R and grants Defendants’ motion for
This 42 U.S.C. § 1983 action arises out of a September 2013 incident at the Hill-Finklea
Detention Center (“HFDC”). Plaintiff Altony Brooks alleges that he was lured out of his cell at
HFDC, taken to the booking area, and told that he needed to have his picture taken. Plaintiff
resisted having his picture taken by moving his head repeatedly to prevent a clear picture. After
the detention officers spent seven and a half minutes trying to convince Plaintiff to comply with
HFDC’s photograph policy, the officers warned Plaintiff that if he kept resisting he would be
tased. Despite that warning, Plaintiff continued to resist, so Sergeant Johnston fired her taser.
According to Defendants, Plaintiff continued to resist even after being tased, so Sergeant
Johnston tased him again. Surprisingly, however, Plaintiff still continued to resist. Sergeant
Johnston then tased Plaintiff a third time, and at that point he allowed the officers to take his
photograph. Although it is undisputed that Plaintiff was tased three times, the parties’ versions
of the facts diverge as to whether Plaintiff continued to resist after being tased the first time.
According to Plaintiff, he stopped resisting after the first use of the taser. As a result, he now
sues, claiming that Captain Jacumin and Officer Fludd are liable under § 1983 for use of
excessive force, and raising various state-law causes of action against the Berkeley County
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the R & R within fourteen days after being served with a copy of it. 28 U.S.C. § 636(b)(1). This
Court must conduct a de novo review of any portion of the R & R to which a specific objection is
made, and it may accept, reject, or modify the Magistrate Judge’s findings and recommendations
in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the
matter to the Magistrate Judge with instructions. Id. A party’s failure to object is taken as the
party’s agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140
(1985). Absent a timely, specific objection—or as to those portions of the R & R to which no
specific objection is 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.’” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
Plaintiff also asserted claims against several other officers, including Sergeant Johnston, but those aspects of
the case have been dismissed. (See Order, ECF No. 110.)
Pro se filings are held to a less stringent standard than those drafted by attorneys, Gordon
v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and federal district courts must construe such
pleadings liberally to allow the development of potentially meritorious claims, see Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (per curiam). The liberal construction requirement, however, does
not mean courts can ignore a clear failure to allege facts that set forth claims cognizable in
federal district court. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Plaintiff filed two separate sets of objections to the Magistrate Judge’s R & R. In his first
objection (ECF No. 214), Plaintiff requests that the Court consider an additional response in
opposition to Defendants’ motion for summary judgment when reviewing the R & R. Plaintiff
attached that response as an exhibit to his objection. Plaintiff’s “objection” does not make any
specific objection to the R & R and is therefore improper. See Fed. R. Civ. P. 72(b) (“a party
may serve and file specific, written objections to the [Magistrate Judge’s] proposed findings and
recommendations”). Moreover, even counting Plaintiff’s response in opposition to Defendants’
motion for summary judgment as mailed on January 17, 2017, as Plaintiff claims it should be,
that response would still have been filed more than two weeks after the December 31, 2016
See Local Civ. Rule 7.06 (D.S.C.).
For both of those reasons, Plaintiff’s first
“objection” is overruled.
The majority of Plaintiff’s second set of objections (ECF No. 217) either rehash
arguments made to the Magistrate Judge, or fail to specifically object to the R & R. However,
Plaintiff does make one relevant objection to the Magistrate Judge’s qualified-immunity analysis.
In the R & R, the Magistrate Judge concluded that Plaintiff continued to resist even after
Sergeant Johnston first used her taser. Plaintiff objects, claiming that he stopped resisting after
the first tasing. The R & R references the video of the incident submitted by Defendants, and the
Magistrate Judge concludes the video shows that Plaintiff did continue to resist. As a result, the
Magistrate Judge also explicitly concluded that no constitutional violation occurred.
carefully examining the video, the Court agrees that Plaintiff continued resisting having his
picture taken after the first two times he was tased. The Magistrate Judge also states that even
assuming, without deciding, that a constitutional violation occurred in this case, Defendants
would still be entitled to qualified immunity because the law concerning the use of tasers against
inmates was not settled at the time of the incident. The Court need not reach the qualified
immunity analysis because it concludes that no constitutional violation occurred.
As the Magistrate Judge thoroughly described in his R & R, law enforcement officer
bystanders may be held liable for another officer’s act of excessive force if the bystanders
possess the power to prevent it but fail to do so. Randall v. Prince George’s County, 302 F.2d
188, 203 (4th Cir. 2002). For such liability to attach here, Defendants Fludd and Jacumin must
have: (1) known that Sergeant Johnston was violating Plaintiff’s constitutional rights, (2) had a
reasonable opportunity to prevent the harm, and (3) purposefully chosen not to act. Id. at 204.
At the time of the incident, Plaintiff was incarcerated at HFDC while awaiting a post-conviction
relief hearing. As a result, his claims fall under the Eighth Amendment. See Whitley v. Albers,
475 U.S. 312, 318 (1986). In determining whether an officer’s use of force violates the Eighth
Amendment, the Court must determine whether the “force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for the very purpose of causing
harm.” Id. at 320–21. In making that determination,
courts should consider the necessity for the application of force; the relationship
between the need for force and the amount of force used; the extent of the injury
inflicted; the extent of the threat to the safety of the staff and other prisoners as
reasonably perceived by prison officials based on the facts known to them at the
time; and the efforts, if any, taken by the officials to temper the severity of the
Boone v. Stallings, 583 F. App’x 174, 176 (4th Cir. 2014) (per curiam) (citing Hudson v.
McMillian, 503 U.S. 1, 7 (1992)).
Even viewed in the light most favorable to him, Plaintiff was refusing to obey the
detention officers’ commands that he allow them to take his picture until after he was tased for
the third time. The Court bases its opinion on Plaintiff’s allegations and on its numerous
painstaking reviews of the video of the incident.2 As a result, the Court lays out the incident as
can be seen in the video. The first seven and a half minutes of the video show the detention
officers attempting to convince Plaintiff to let them take his picture. There is no evidence of the
use of force against Plaintiff during this time frame, and the detention officers calmly warn
Plaintiff that he would be tased if he continued to resist having his picture taken. Throughout the
incident, Plaintiff was restrained in handcuffs and was being held by two detention officers.
After the detention officers attempted to reason with Plaintiff and after warning him that
continued non-compliance would result in the use of force, Plaintiff continued his resistance and
Sergeant Johnston used her taser for the first time. Plaintiff then fell to the ground, writhed and
kicked for approximately five seconds, and ultimately laid still.
Plaintiff then talked with the detention officers for another ten seconds, during which
time the officers tried to get him to get up off of the floor so that they could take his picture.
Instead, Plaintiff continued to lay on the ground. Sergeant Johnston then tased him for the
second time. The entirety of the time Plaintiff was on the ground, the detention officers did not
apply any additional physical force and they attempted to convince him to stand up so that they
Courts have “credited the plaintiff’s version of the facts only to the extent consistent with record video
evidence.” Garcia v. McClaskey, No. 1:12CV93, 2016 WL 2903234, at *6 (M.D.N.C. May 18, 2016) (collecting
could take his picture. After the second use of the taser, the officers helped Plaintiff to his feet
and again instructed him to look at the camera so that they could take his picture. After the
detention officers spent yet another minute attempting to convince Plaintiff to comply with their
commands, Sergeant Johnston tased Plaintiff for the third time. Plaintiff started to fall to the
floor but was caught by several of the officers. After the third tasing, Plaintiff finally complied
with the detention officers’ commands to allow them to take his picture.
Having established the facts, the Court now turns to the factors enumerated in Hudson.
First, the Court believes that there was a need for some use of force to secure Plaintiff’s
cooperation in taking his photograph. HFDC’s policy requires that each inmate have his picture
taken each time he is housed at HFDC. This policy is reasonable as identification of inmates is
vital to detention center security. See Zargary v. City of New York, 607 F. Supp. 2d 609, 613
(S.D.N.Y. 2009) (“Being able to accurately identify inmates is clearly essential to maintain
security at correctional facilities.”). Plaintiff can be clearly seen refusing to comply with the
detention officers’ orders. As a result, to secure Plaintiff’s photograph some degree of force was
necessary. See Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984), (“Inmates cannot be
permitted to decide which orders they will obey, and when they will obey them. Someone must
exercise authority and control.”) cited in Rendelman v. Scott, 378 F. App’x 309, 313 (4th Cir.
2010) (per curiam). Thus, the first factor favors the Defendants. Second, the Court evaluates the
relationship between the need for force and the amount of force used. This factor also favors the
Defendants. Defendants used a taser to secure Plaintiff’s compliance in order to avoid the
danger to both officer and inmate that accompanies the use of physical force. There is no
question that “[d]eploying a taser is a serious use of force.” Armstrong, 810 F.3d at 902 (quoting
Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010)). However, there was a
serious need for the use of force here, and serious force was needed to secure a repeatedly noncompliant inmate’s acquiescence to a simple photograph. Third, the Court looks to the degree of
injury inflicted. In addition to the pain Plaintiff suffered from the taser, he also alleges that this
incident resulted in a severe knee injury that required surgery.
Defendants dispute that
allegation, and the video certainly reveals no indication of any knee injury, but viewed in the
light most favorable to Plaintiff, the Court must credit his sworn statement of a severe knee
injury. Thus, this factor favors Plaintiff. Fourth, the Court assesses the extent of the threat to the
safety of the staff and other prisoners as reasonably perceived by the prison officials based on the
facts known to them at the time, as well as the efforts they took to temper the severity of the
force. Here, based on the video evidence and Defendants’ uncontroverted sworn testimony, the
Court concludes there was a threat to the safety of the officers because Plaintiff was refusing to
comply with one of HFDC’s important security policies and because Plaintiff was threatening
the officers. As far as the Court can tell, Plaintiff posed no immediate physical safety risk to the
officers either before or after Sergeant Johnston’s uses of the taser. However, he threatened
officers and, as recognized in Zargary, prisoner identification is vital to detention center security.
Thus, the detention officers could have reasonably perceived a significant threat to the safety of
the detention center’s staff and inmates. Additionally, the detention officers spent seven and a
half minutes attempting to coax Plaintiff into allowing them to take his picture.
Defendants expended significant time and effort in an attempt to avoid the use of force altogether
by attempting to reason with Plaintiff to secure a single photograph.
The Court simply cannot hold that the detention officers’ conduct in this case is sufficient
to create a jury question as to excessive force under Whitley’s standard. The use of force here
does not appear to have been malicious in the slightest, but was instead used to acquire
Plaintiff’s compliance with HFDC’s picture policy after repeated attempts to avoid the use of
force altogether. The detention officers clearly attempted to convince Plaintiff to allow his
photograph to be taken and only resorted to the use of force after an extended attempt to reason
with him. Moreover, the use of the taser, while painful, avoided the use of rough physical force
against Plaintiff and preserved the detention officers’ safety. As recognized by the Magistrate
Judge, the use of rough physical force would undoubtedly have also been the subject of a § 1983
claim. Although the growing trend of jurisprudence rightly counsels that law enforcement
officers must exercise restraint in their use of force, the Court cannot ascertain what additional
steps the detention officers could have taken in this situation to secure Plaintiff’s compliance. As
noted in Soto and quoted by the Fourth Circuit in Rendelman, inmates cannot be permitted to
decide which orders to follow and which orders to ignore, and detention officers must have some
means of securing inmates’ compliance without endangering their own safety. As a result, the
Court concludes that no constitutional violation occurred in this case.
The Court also agrees with the Magistrate Judge’s recommendation that Plaintiff’s statelaw claims be dismissed without prejudice.
Where all federal-question claims have been
dismissed, this Court may decline to exercise supplemental jurisdiction over any related statelaw claims. 28 U.S.C. § 1367. The Court finds it appropriate to do so here. Accordingly,
Plaintiff’s objection is overruled.
For the foregoing reasons, it is ORDERED that Plaintiff’s objections are
OVERRULED, that the R & R is ADOPTED, that Defendants’ motion for summary judgment
is GRANTED, and that Plaintiff’s state-law causes of action are DISMISSED WITHOUT
Accordingly, Plaintiff’s motion for summary judgment is DENIED, as is
Plaintiff’s motion for an extension of time to file a response to the R & R. Plaintiff had ample
opportunity to address the R & R in his two previous sets of objections to the R & R, and the
Court need not consider any further belated filings. Finally, Plaintiff’s motion for contempt is
also DENIED. The Court is satisfied that the additional video of middle booking that Plaintiff
seeks has been destroyed in the ordinary course of business and that it is of no importance to
AND IT IS SO ORDERED.
August 3, 2017
Charleston, South Carolina
The incident that forms the basis for Plaintiff’s claims occurred in back booking.
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