Young v. Lacy et al

Filing 65

MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's objections and sustains defendants' objections to Magistrate Judge Cheryl A. Eifert's PF&R. The court ADOPTS the factual and legal analysis contained within the 57 PF&R ex cept as it relates to plaintiff's claim that he was unlawfully arrested. The court GRANTS defendants' 53 Amended Motion for Summary Judgment in favor of defendants as it relates to plaintiff's claim that he was unlawfully arrested, t hat the defendants used excessive force against plaintiff during the arrest, and that the defendants used excessive force against the plaintiff while a pretrial detainee. Neither party made objections to Magistrate Judge Eifert's PF&R as it rela tes to plaintiff's unlawful search claim. Therefore, plaintiff's unlawful search claim remains viable and the motion for summary judgment is DENIED as to that claim. Signed by Senior Judge David A. Faber on 9/28/2018. (cc: plaintiff, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

LARRY ARNOLD YOUNG,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-03633

T.A. LACY; PERRY RICHMAN;
and AARON YOUNG,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ Amended Motion for
Summary Judgment.

ECF No. 53.

By Standing Order, this matter

was referred to United States Magistrate Judge Cheryl A. Eifert
for submission of findings and recommendations regarding
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

Magistrate

Judge Eifert submitted her Proposed Findings and Recommendation
(“PF&R”) to the court on May 11, 2018.

ECF No. 57.

In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days, plus three mailing days,
in which to file any objections to the PF&R.

The failure of any

party to file such objections within the time allowed
constitutes a waiver of such party's right to a de novo review
by this court.
1989).

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

Plaintiff and Defendants filed objections.

60.
1

ECF Nos. 58,

I.
BACKGROUND
A. Underlying Criminal Prosecution
On July 20, 2016, Mercer County Detective-Sergeant S.A.
Sommers received an investigation referral from the Mercer
County Prosecuting Attorney’s Office alleging Larry Young
(“plaintiff”) sexually assaulted a six-year-old female.
53-1.

ECF No.

After reviewing the alleged victim and her nine-year-old

sister’s interview taken by Child Protect of Mercer County,
Sommers and other deputies went to plaintiff’s home and arrested
plaintiff without a warrant on July 22, 2016.

Id.

A criminal

complaint was then filed against the plaintiff charging him with
First Degree Sexual Assault and First Degree Sexual Abuse.
ECF No. 53-2.

See

The magistrate judge determined that probable

cause existed, and the grand jury returned a three-count
indictment against the plaintiff alleging “Sexual Assault-First
Degree,” “Sexual Abuse by a Parent, Guardian, Custodian or
Person in a Position of Trust,” and “Sexual Abuse – First
Degree”.

ECF Nos. 53-3; 53-4.

After a trial, a jury acquitted

the plaintiff on all charges on March 15, 2018.

ECF No. 55 at

p.3.
B. Instant Complaint
Before the criminal trial was held, the plaintiff brought
this action, alleging five claims of civil rights violations by
three (3) defendants, Deputy T.A. Lacy, Perry Richmond, and
2

Aaron Young. 1

The plaintiff claims that Lacy illegally searched

his residence, falsely arrested him, and used excessive force
during the arrest.

See ECF No. 1.

Plaintiff also claims, while

detained awaiting trial, Richmond and Young used excessive force
against him after the conclusion of two pretrial hearings.

Id.

C. PF&R and the Parties’ Objections
In Magistrate Judge Eifert’s PF&R, she recommended this
court deny summary judgment as to plaintiff’s claims that Lacy
engaged in an unlawful search of the plaintiff’s residence and
falsely arrested him.

However, the PF&R recommended the court

grant defendants’ summary judgment as to all three claims of
excessive force.

ECF No. 57.

Both parties filed objections to the PF&R.
60.

ECF Nos. 58,

Defendants claim that plaintiff was not falsely arrested.

ECF No. 58.

Plaintiff continues to claim that Lacy, Richmond,

and Young used excessive force against him.

ECF No. 60.

Therefore, each of plaintiff’s claims are at issue except Lacy’s
unlawful search wherein the magistrate judge recommended
defendants’ motion for summary judgment be denied.

The court

now addresses each claim placed into controversy by the parties’
objections.

1

The employment positions of defendants, Perry Richmond and
Aaron Young, have not been identified to the court at this time.
3

II. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides:
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.
The moving party has the burden of establishing that there is no
genuine issue as to any material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

This burden can be met by

showing that the nonmoving party has failed to prove an
essential element of the nonmoving party's case for which the
nonmoving party will bear the burden of proof at trial.
322.

Id. at

If the moving party meets this burden, according to the

United States Supreme Court, “there can be ‘no genuine issue as
to any material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.” Id. at 323.
Once the moving party has met this burden, the burden shifts to
the nonmoving party to produce sufficient evidence for a jury to
return a verdict for that party.
The mere existence of a scintilla of evidence in
support of the plaintiff's position will be
insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff. The judge's
inquiry, therefore, unavoidably asks whether
reasonable jurors could find, by a preponderance of
the evidence, that the plaintiff is entitled to a
verdict . . .

4

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

“If

the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”

Id. at 250–51.

III. DISCUSSION
A. FALSE ARREST
While the plaintiff never explicitly made a claim for false
arrest, Magistrate Judge Eifert perceived that plaintiff’s
Amended Complaint contained such a claim from the following
statement:
T.A. Lacy did sneak up behind me, grabbed my hand, twisted
my arm behind my back maiming my left wrist. Arrested me
without an Arrest Warrant . . .
ECF No. 33 at p.7; see also Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985) (emphasizing imputed duty of
liberal construction for pro se plaintiffs).

Defendants did not

perceive a false arrest claim and as a result, their motion for
summary judgment did not use any ink arguing the issue.
generally ECF No. 54.

See

Now, given defendant’s opportunity to

brief the issue, the court reviews whether Lacy had probable
cause to arrest the plaintiff.
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or

5

affirmation, and particularly describing the place to be
searched, and the place or things to be searched.
U.S. Const. amend. IV.

Thus, because arrests are “seizures” of

“persons,” the Fourth Amendment establishes that arrests must be
justified by a finding of probable cause. See id.
Warrantless arrests are permitted where there is probable
cause to believe a felony has been committed by the arrested
individual, based upon “the totality of the circumstances.”
Illinois v. Gates, 462 U.S. 213, 230-31 (1983); United States v.
Watson, 423 U.S. 411, 424 (1976) (holding warrantless arrests to
be permitted if the officer has probable cause to believe a
felony has been committed, even if committed outside the
officer’s presence).

If an arrest is made without a warrant, a

defendant must be brought before a judicial officer without
unnecessary delay to make the determination of whether probable
cause existed at the time of the arrest. See Fed. R.Crim.5.
Recently, the Supreme Court explained the legal landscape
for warrantless arrests in D.C. v. Wesby,
To determine whether an officer had probable cause for
an arrest, we examine the events leading up to the
arrest, and then decide whether these historical
facts, viewed from the standpoint of an objectively
reasonable police officer, amount to probable cause.
Because probable cause deals with probabilities and
depends on the totality of the circumstances, it is a
fluid concept that is not readily, or even usefully,
reduced to a neat set of legal rules. It requires
only a probability or substantial chance of criminal
activity, not an actual showing of such activity.
Probable cause is not a high bar.
6

138 U.S. 577, 585–86 (2018) (emphasis added; citations and
internal quotations omitted).

Moreover, the court considers the

facts leading up to the arrest in their totality since “the
whole is often greater than the sum of its parts.”

Id.

Therefore, if “the facts and circumstances within [the
Sheriff’s Department’s collective] knowledge . . . warrant a
prudent person in believing that the [suspect] had committed or
was committing an offense,” Beck v. Ohio, 379 U.S. 89, 91
(1964), an officer of that agency, acting in good-faith reliance
upon such “facts and circumstances,” has probable cause to
effectuate an arrest.

U.S. v. Hensley, 469 U.S. 221, 232

(1985).
Reviewing in the collective the factors leading to the
plaintiff’s arrest, the court determines that there was
sufficient probable cause for Lacy to arrest the plaintiff
without a warrant.
Before arresting the plaintiff, Detective-Sergeant Sommers
was responsible for investigating the complaint against
plaintiff.

Sommers initially received an investigative referral

from the Mercer County Prosecuting Attorney’s Office on July 20,
2016.

ECF No. 53-1 at p.3.

From this report, Sommers learned

that the six-year-old alleged victim and her nine-year-old
sister had been interviewed by Child Protect of Mercer County.

7

Id.

In this interview, the six-year-old alleged victim stated

that she:
rode to [plaintiff’s] residence to get a pop. While
in the residence Larry took her to his bedroom, shut
the door, and sat on the bed. While sitting on the
bed [plaintiff] pulled her underwear down a little,
and put his finger in her “V”; she later identified
her vagina as her “V”. She then stated that the
accused took out his private, grabbed her hand, and
made her touch it, describing his private as being
greasy. She also disclosed that prior to arriving at
his residence he was rubbing her sister’s [] leg in
his truck.
ECF NO. 53-1 at p.3.

Four days after the alleged victim was

interviewed, Child Protect of Mercer County interviewed the
alleged victim’s sister, who made statements that the plaintiff
took her and her sister to plaintiff’s home “to get a pop” and
“rubbed her leg above her clothes.”

Id.

During the interview,

the alleged victim’s sister further disclosed that she was told
by the alleged victim that the alleged victim had been assaulted
by the plaintiff, and then the sister told this information to
their mother.
called 911.

Id. at pp. 3-4.
Id.

The alleged victim’s mother then

After reviewing Child Protect of Mercer

County’s interview with the alleged victim and her sister,
Sommers confirmed with the alleged victim’s mother the alleged
assault.

Id. at p.4.

The consistent statements of the alleged victim, the
alleged victim’s nine-year-old sister, and their mother indicate

8

a reasonable probability that the plaintiff committed sexual
assault.

See Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th

Cir. 1991) (“It is surely reasonable for a police officer to
base his belief in probable cause on a victim's reliable
identification of his attacker.

Indeed, it is difficult to

imagine how a police officer could obtain better evidence of
probable cause than an identification by name of assailants
provided by a victim, unless, perchance, the officer was to
witness the crime himself.”) (internal citation omitted).
Moreover, the interview of the six-year-old alleged victim
graphically details the plaintiff’s alleged actions.
Furthermore, although not conclusive to the court’s
decision, the court considers the fact that after the
defendant’s arrest, a county magistrate judge determined that
there was probable cause to believe that plaintiff had committed
the offenses he was arrested for.
Therefore, the information shared with the police by the
alleged victim’s mother, that was corroborated by consistent
statements made by the six-year-old alleged victim and the
alleged victim’s nine-year-old sister in the interview conducted
by Child Protect of Mercer County, establishes a reasonable
probability, and thus probable cause, that the plaintiff
committed the crime he was arrested for. See, e.g., Gates, 462
U.S. at 242 (explaining that “in making a warrantless arrest an
9

officer may rely upon information received through an informant,
rather than upon his direct observations, so long as the
informant's statement is reasonably corroborated by other
matters within the officer's knowledge.”).
Plaintiff contends that the Sheriff’s Office deliberately
ignored exculpatory evidence.

Specifically, plaintiff asserts

that he asked Lacy and the other members of the Sheriff’s
Department to watch surveillance footage, which allegedly showed
that the putative victim never entered the premises on the date
in question, and they did not do so.

ECF No. 60 at p.11.

However, as documented in the Report of Investigation, Sommers
did in fact investigate the cameras as requested by plaintiff,
and they discovered that: (a) there was no surveillance camera
“on the church across the street,” as indicated by plaintiff;
and (b) the cameras mounted at the residence were either not
working or had poor quality.

ECF No.53-1 at 4.

In fact,

plaintiff acknowledged that “one line going to the camera
filming my son’s house had been bitten into by a kitten.”
No.60 at p.11.

ECF

Plaintiff explained that, “[a]ll that was

required to activate it was to roll the place where the kitten
bit into the wire between your fingers and the camera would come
back on picture perfect.”

Id.

Based upon these statements,

there is not a genuine issue of material fact as to whether the
camera(s) were in a functioning state.
10

Therefore, it cannot be concluded that the Sheriff’s Office
deliberately ignored exculpatory evidence, as plaintiff argues,
because the Sheriff’s Office attempted to view the camera
footage.

The Sheriff’s Office justifiably determined that the

cameras were not a source of evidence they could view.

Based

upon the parties’ statements and the record, there is not
conflicting evidence as to whether the camera(s) were in a
working state, and thus it cannot be concluded that viewing the
footage would have impacted a finding of probable cause prior to
the arrest.
Next, plaintiff contends that the investigation was tainted
because “Sommers is the double first cousin to the accuser.”
ECF No. 60 at p.3.

However, even if Sommers is related to the

alleged victims, the facts of this case clearly indicate that
probable cause was present to arrest the plaintiff.
Finally, plaintiff’s objections stated that because he was
proven not guilty on all counts, Lacy was not justified in
arresting him.

ECF No. 60 at p.1.

Again, the standard the

court must consider is whether under the totality of the
circumstances at the time of the arrest, Lacy had probable cause
to arrest him. See Gates, 462 U.S. at 230-31.

The fact that the

plaintiff was later found not guilty is irrelevant to the
determination of whether the arrest was constitutional.

11

Accordingly, the arrest made by Lacy was supported by
probable cause, where Lacy reasonably relied upon Sommers’
investigation which found probable cause from the corroborating
statements made by the putative victim, the putative victim’s
mother, and the putative victim’s nine-year-old sister.

Thus,

even viewing the evidence in the light most favorable to the
plaintiff, the court concludes that the arrest was based on
probable cause and that the plaintiff suffered no violation of
his Fourth Amendment constitutional rights by being arrested by
Lacy.

Therefore, the court finds that no genuine issue of

material fact exists as to whether Lacy violated the plaintiff’s
Fourth Amendment rights by allegedly falsely arresting plaintiff
and grants the defendant’s motion for summary judgment.
B. Excessive Force
Plaintiff’s objections to the PF&R may be summarized as follows:
T.A. Lacy has no cause sneaking up behind me and
twisting my left arm up high behind my back cracking
something in my wrist causing excruciating pain and
suffering ever since that moment on 7/22/2016. On
7/26/2016 Perry Richmond had no cause sneaking up
behind be (sic), jerking me up from defendant’s table,
slinging me around is the courtroom, pushing me out
into the hallway causing at least a disc to slip in my
lower spine. On 6/22/17 Arron (sic) Lacy had no cause
pawing me by my right shoulder and neck, hooking his
fingers in my shirt collar and jerking me down in the
County’s unequipped with feet rests wheelchair in an
awkward twisted position causing at least a pinched
nerve in my lower spine causing a constant agitating
pinch on the right side of my lower spine ever since
that moment and cannot get in a comfortable position.
12

I live in constant pain and suffering 24/7 due to the
actions toward my-self by these three defendants.
Therefore, Plaintiff has demonstrated that genuine
issues of material fact exist to the unjustified
assaults from behind by all three defendants . . .
ECF. NO. 60.
For both claims of excessive force (during arrest and postarrest), defendants denied plaintiff’s claims, asserted their
right to qualified immunity, and moved for summary judgment. ECF
NO. 22,53.
The defendants assert “they are entitled to qualified
immunity from liability because these defendants acted lawfully
in all actions taken by them with regard to plaintiff.”
22 at p.2.

ECF NO.

The Supreme Court has explained that the doctrine of

qualified immunity protects government officials “from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.”
457 U.S. 800, 818 (1982).

Harlow v. Fitzgerald,

A right is clearly established only

if “a reasonable official would understand that what he is doing
violates that right.” Carroll v. Carman, 135 S. Ct. 348, 350
(2014).
The Supreme Court has set forth two factors for resolving
the qualified immunity claims of government officials. See
generally, Pearson v. Callahan, 555 U.S. 223 (2009).

In

deciding whether government officials are protected by qualified
13

immunity, the court must decide whether the facts that a
plaintiff has shown make out a violation of a constitutional
right. Id. at 201.

Additionally, the court determines whether

the right at issue was “clearly established” at the time of
defendant's alleged misconduct. 2 Id.
i.

Lacy’s Alleged Excessive Force During Arrest

Magistrate Judge Eifert found that Lacy was entitled to
summary judgment regarding plaintiff’s Fourth Amendment claim
for excessive force during an arrest because there was no
genuine issue of material fact concerning the constitutionality
of the arrest.

The court agrees with and affirms Magistrate

Judge Eifert’s finding for summary judgment in favor of
defendants. The court further finds that Lacy is entitled to
qualified immunity because the facts do not establish that
plaintiff’s constitutional right against excessive force during
his arrest was violated.

See Pearson, 555 U.S. at 243 (holding

that “petitioners [were] entitled to qualified immunity because
[they] . . . did not violate clearly established law.”).
“When a plaintiff has alleged that an officer employed
excessive force in making an arrest, the federal right is the

2

Because the Fourth Amendment right against unreasonable
seizures and a pretrial detainee’s right against the use of
excessive forth, flowing from the Due Process Clause of the
Fourteenth Amendment, are clearly establish, it is unnecessary
for this court to analyze this portion of the qualified immunity
inquiry. See U.S. Const. amends. IV, XIV.
14

Fourth Amendment right against unreasonable seizures.” Smith v.
Ray, 781 F.3d 95, 100 (2015).

To determine whether a Fourth

Amendment right against the use of excessive force during an
arrest has been violated, the court considers whether the force
applied in effecting the arrest was objectively reasonable given
the facts and circumstances confronting the officer at the time
of the arrest.

See id. at 101 (citing Graham v. Connor, 490

U.S. 386, 397 (1989)).

To determine reasonableness, the court

looks to three factors: (1) the severity of the crime (2) the
extent to which the suspect posed an immediate threat to the
safety of the officers or public; and (3) whether the suspect
actively resisted arrested. Id.

Additionally, the seriousness

of any injury is considered by the court in determining whether
the amount of force was excessive.

See Smith v. Murphy, 624

F.App’x 914, 917 (4th Cir. 2015).
Here, the alleged crime was severe.

Plaintiff was being

arrested for felony sexual assault of a minor.

As Magistrate

Judge Eifert pointed out, this factor weighs in favor of Lacy
applying some degree of force to handcuff plaintiff.
at p.18.

ECF NO. 57

As to the second and third factors, however, there is

no assertion that plaintiff posed an immediate threat to the
safety of the officers or the public nor is there evidence that
plaintiff actively resisted arrest.

Of course, these two

factors do not weigh in favor of the greater force being applied
15

during the arrest. Nevertheless, these factors are not
conclusive and are to be given weight in accordance with the
force applied in the arrest.

See, Waterman v. Batton, 393 F.3d

471, 481 (4th Cir. 2005) (explaining that to properly consider
the reasonableness of force employed we must “view it in full
context, with an eye toward the proportionality of the force in
light of all the circumstances.”).
During the arrest, plaintiff alleges that he was standing
in the driveway speaking to the police officers, when Lacy
“[snuck] up behind [him] and twist[ed] [his] left arm up high
behind [his] back cracking something in [his] wrist.
at p.2.

ECF NO. 33

However, defendants argue that Lacy applied a

handcuffing method that is “a relatively common and ordinarily
accepted non-excessive way to detain an arrestee.”
at p.9.

ECF NO. 54

Defendants also argue that there is no evidence on the

record that establishes the force used by Lacey was excessive.
ECF NO. 54 at p.10.
Lastly, the court considers the severity of plaintiff’s
wrist injury, which is allegedly a result of the arrest.

In

response to the PF&R finding that “[d]espite plaintiff’s claim
that he suffered permanent wrist injury, he has not offered any
actual evidence . . .”, plaintiff explained that “[in the]
S.R.J. in Beckley, there is practically no medical assistance.”
Id. at 12.

The plaintiff also objected by stating that an x-ray
16

he had done on his wrist came back negative although he was in
pain, and “[o]ne Doctor just visually [] stated that it was
messed up[]” without providing any detail as to the infirmity.
Id. at 12-13.

This lack of evidence undercuts plaintiff’s

argument that Lacy used excessive force in executing the arrest.
Thus, the court finds that plaintiff has failed to provide any
evidence that his wrist is injured from the arrest or is injured
to the level of severity that plaintiff contends.
As Magistrate Judge Eifert explained in the PF&R, Fourth
Circuit district court decisions indicate that the violent
handcuffing involving the twisting a suspect’s arm, absent
additional factors, may be insufficient to constitute excessive
force. See Machie v. Manger, No.09-CV-2196-AW, 2013 WL 3353740,
at*10 (D.Md. July 2,2013),aff’d sub nom. Machie v. Demme, 564 F.
App’x 17 (4th Cir. 2014) (holding that “the violent handcuffing
and the twisting of [the suspect’s] arm, on its own, may be
insufficient to constitute excessive force,” but the violent
handcuffing, twisting of the suspect’s arm, and the smashing of
the suspect’s head into the wall, when taken together, possibly
constituted a valid claim of excessive force, especially given
the undisputed fact that the suspect did not resist arrest.).
Based upon the above-mentioned evidence, Lacy’s arrest of
the plaintiff was objectively reasonable.

He arrested plaintiff

for a federal offense based upon probable cause, and although it
17

is likely he used force to pull the plaintiff’s arms behind his
back, the plaintiff does not allege that Lacy took any
additional forceful action. Furthermore, the fact that there is
no evidence to demonstrate that the plaintiff suffered a serious
injury as a result of the arrest supports the conclusion that
Lacy did not apply excessive force when making his arrest of the
plaintiff.

See, e.g., Murphy, 624 F.App’x at 917.

Therefore,

because Lacy's conduct did not violated a clearly established
constitutional right, the right against unreasonable seizures
(i.e., arrests), qualified immunity is applicable.
Accordingly, the court affirms the proposed finding of the
magistrate judge and grants summary judgement in favor of the
defendant for the claim of excessive force during arrest.
ii.

Alleged Post-Arrest Excessive Force

Plaintiff’s final objection is that Richmond and Young
(“defendants”) applied excessive force while plaintiff was a
pretrial detainee.

Magistrate Judge Eifert found that plaintiff

did not assert a genuine issue of material fact that the
defendants violated his Fourteenth Amendment rights and
recommended that the defendants be granted summary judgment.
See ECF NO. 57 at p.29.

For the reasons discussed below, the

court agrees with the finding of Magistrate Judge Eifert and
grants summary judgment in favor of the defendants.

18

The defendants argue that they are entitled qualified immunity
from plaintiff’s claim for post-arrest excessive force. See EFC
No. 22 at p.2.

For the purposes of determining whether the

defendants are protected by qualified immunity, the court must
determine initially whether there was in fact a violation of
plaintiff’s Due Process right against excessive force as a
pretrial detainee.

See Pearson, 555 U.S. at 201.

Excessive force claims brought by pretrial detainees are
governed by the Due Process Clause of the Fourteenth Amendment.
See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989).

Recently

the Supreme Court in Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473 (2015) held that,
[A] pretrial detainee must show only that the force
purposely or knowingly used against him was
objectively unreasonable. Nevertheless, a court
cannot apply this standard mechanically . . . A court
must make this determination from the perspective of a
reasonable officer on the scene, including what the
officer knew at the time, not with the 20/20 vision of
hindsight. . .
Moreover, while the Supreme Court indicated that the list was
not exhaustive:
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used:
the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff's injury; any effort made by the officer to
temper or to limit the amount of force; the severity
of the security problem at issue; the threat
reasonably perceived by the officer; and whether the
plaintiff was actively resisting.

19

Id.

Furthermore, although the extent of an injury received can

be a consideration, the objective reasonableness “inquiry in
both contexts focuses on the force itself rather than the
injury.” Coley v. Lucas Cty., Ohio, 799 F.3d 530, 539 (6th Cir.
2015).
The case at hand is analogous to Strickland v. Turner, No.
9:15-CV-275-PMD-BM, 2017 WL 5589575, at *2 (D.S.C. Nov. 21,
2017), wherein the plaintiff alleged that a corrections officer
“forcefully pinched him on one occasion as he was being removed
from a restraint chair.”

Mindful of the fact that the plaintiff

did not allege that this pinch resulted in any physical injury,
the court held that plaintiff’s allegation of this “deliberate
and unprovoked” act was not objectively unreasonable in light of
the fact that “prison management ‘may require and justify the
occasional use of a degree of intentional force’ against
pretrial detainees.” Id. (citing Kingsley, 135 S. Ct. at 2475).
Here, plaintiff claims that Richmond snuck up behind him,
“jerking [him] up from defendant’s table, slinging [him] around
in the courtroom, pushing [him] out into the hallway causing at
least a disc to slip in my lower spine.”

ECF No. 60 at p.1.

Next, plaintiff alleges that defendant Young on a number of
occasions “paw[ed] [him’ by [his] right shoulder and neck,
hooking his fingers in my shirt collar and jerking me down in
the County’s unequipped with feet rests wheelchair in an awkward
20

twisted position causing at least a pinched nerve in my lower
spine causing a constant agitating pinch on the right side of my
lower spine ever since that moment and cannot get in a
comfortable position.”

ECF No. 60 at pp 1-2.

The defendants argue that “while Plaintiff uses colorful
language to describe the actions, it was nothing more than
removing Plaintiff from the courtroom following Plaintiff’s
preliminary hearing.” ECF NO. 54 at p.11.

The defendants

explain that,
Boiled to its essence, Defendant Richman escorted
Plaintiff from the courtroom following the preliminary
hearing to take him to the holding cells. Similarly,
with respect to the incident involving the wheelchair,
Plaintiff again uses colorful language to describe
Defendant Young removing Plaintiff from a courtroom
following a hearing.
Id. at 12.
Similar to Strickland, while it is undisputed that the
officers applied force to the plaintiff when escorting him
around and from the courtroom, based upon the evidence, the
force applied does not appear to be objectively unreasonable.
See Strickland, No. 9:15-CV-275-PMD-BM, 2017 WL 5589575, at *2;
but see, Sawyer v. Ashbury, 537 Fed.Appx. 283, 296 (4th Cir.
2013) (holding that “a videotape of detention center incident
clearly showing that deputy sheriff struck pretrial detainee in
the face at least once while two deputies began to hold him, in
response to detainee's insults and refusal to stand up,
21

irrefutably established that deputy used excessive force in
violation of detainee's Fourteenth Amendment due process
rights.”).
Although plaintiff complains that he is in excruciating
pain from the officer’s action, he has failed to demonstrate
that the force used against him by Richmond was “objectively
unreasonable.”

See Kingsley, 135 S. Ct. at 2473 (holding that

“a pretrial detainee must show only that the force purposely or
knowingly used against him was objectively unreasonable.”).

The

plaintiff’s alleged injuries, although taken into consideration,
cannot be given substantial weight because plaintiff has offered
no evidence to prove that he is in fact injured, let alone that
he was injured as a result of Richmond and defendant Young’s
actions.
Upon review of both party’s arguments and objections, the
court does not find that a genuine issue of material fact exists
as to whether the force applied by Richmond to the plaintiff was
objectively unreasonable.

Additionally, because it has not been

established that the plaintiff’s Fourteenth Amendment due
process rights have been violated, the defendants are protected
by qualified immunity.

See Pearson, 555 U.S. at 201.

Accordingly, the court grants summary judgment in favor of the
defendants as to the plaintiff’s claim of post-arrest excessive
force.
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IV.

Conclusion

Accordingly, the court OVERRULES plaintiff’s objections and
sustains defendants’ objections to Magistrate Judge Eifert’s
PF&R.

The court ADOPTS the factual and legal analysis contained

within the PF&R except as it relates to plaintiff’s claim that
he was unlawfully arrested.

The court GRANTS defendants’ motion

for summary judgment in favor of defendants as it relates to
plaintiff’s claim that he was unlawfully arrested, that the
defendants use excessive force against plaintiff during the
arrest, and that the defendants used excessive force against the
plaintiff while a pretrial detainee.

Neither party made

objections to Magistrate Judge Eifert’s PF&R as it relates to
plaintiff’s unlawful search claim.

Therefore, plaintiff’s

unlawful search claim remains viable and the motion for summary
judgment is DENIED as to that claim.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and to petitioner, pro
se.
IT IS SO ORDERED on this 28th day of September, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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