Opinion
Civil Action 8:19-3176-BHH-KFM
06-01-2021
Millard Jerome Strickland, Jr., Plaintiff, v. Oconee County Sheriff's Office, Mike Crenshaw, Eric Brown, and Isaac Lewis, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This matter is before the court on the defendants' motion for summary judgment (doc. 49). The plaintiff, who is currently in federal custody and proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983, alleging assault and battery, negligence, and violations of his Fourth, Eighth, and Fourteenth Amendment rights. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under § 1983 and submit findings and recommendations to the district court.
I. BACKGROUND AND FACTS PRESENTED
This action arises from the plaintiff's arrest on November 22, 2016 (doc. 1 at 15). Deputy Eric Brown (“Deputy Brown”) and Deputy Isaac Lewis (“Deputy Lewis”) were riding together in a patrol vehicle when they received a call informing them of a possible domestic dispute and that a neighbor had heard yelling and loud banging noises from inside a residence (docs. 49-2, Lewis aff. ¶¶ 2-3; 49-3, Brown aff. ¶ 1). The deputies drove to the residence, and, when they arrived, Deputy Lewis knocked on the front door and announced himself as a sheriff's deputy (docs. 49-2, Lewis aff. ¶ 3; 49-3, Brown aff. ¶ 1). Deputy Brown checked to ensure that no one was behind the residence (doc. 49-3, Brown aff. ¶ 2).
Deputy Brown and Deputy Lewis then heard a male subject raise his voice and a loud noise from inside of the residence (docs. 49-2, Lewis aff. ¶ 3; 49-3, Brown aff. ¶ 2). Because of these loud noises, along with the fact that the deputies were responding to a domestic dispute call, the officers were concerned that someone inside the residence could be in danger (docs. 49-2, Lewis aff. ¶ 3; 49-3, Brown aff. ¶ 2). Thus, Deputy Lewis opened the unlocked door and entered the residence (doc. 49-2, Lewis aff. ¶ 3). When Deputy Lewis was inside, he observed that the area was in disarray, with furniture flipped over and items thrown around (doc. 49-2, Lewis aff. ¶ 4). Deputy Lewis also observed the plaintiff in the kitchen (id.). Deputy Brown then joined Deputy Lewis in the residence (doc. 49-3, Brown aff. ¶ 3).
At this point, the parties' versions of the facts differ markedly. The deputies contend that, after they entered the residence, the plaintiff picked up a vacuum and charged at Deputy Lewis in an aggressive manner and told him to get out of his house (docs. 49-2, Lewis aff. ¶ 4; 49-3, Brown aff. ¶ 3). At the same time, a dog, which appeared to the deputies to be at least part pit bull, began approaching Deputy Lewis (docs. 49-2, Lewis aff. ¶ 4; 49-3, Brown aff. ¶). Deputy Lewis then drew his sidearm and instructed the plaintiff to put down the vacuum and back away (doc. 49-2, Lewis aff. ¶ 4; 49-3). The dog allegedly lunged at Deputy Lewis, and Deputy Lewis instructed the plaintiff to get his dog (docs. 49-2, Lewis aff. ¶ 4; 49-3, Brown aff. ¶ 3). The plaintiff did not get the dog, but the dog backed away on its own volition (docs. 49-2, Lewis aff. ¶ 4; 49-3, Brown aff. ¶ 3). Once the dog walked away, Deputy Lewis holstered his sidearm and pulled out his taser (doc. 49-2, Lewis aff. ¶ 5). The deputies submit that the plaintiff dropped the vacuum but then threw a chair towards Deputy Lewis, which Deputy Lewis was able to block, and then threw a table (docs. 49-2, Lewis aff. ¶ 5; 49-3, Brown aff. ¶ 4). In response, Deputy Brown and Deputy Lewis deployed their tasers (docs. 49-2, Lewis aff. ¶ 5; 49-3, Brown aff. ¶ 4).
The deputies contend that the plaintiff was struck by a taser and went to the ground, but immediately got back up and began walking to the back of the residence (docs. 49-2, Lewis aff. ¶ 6; 49-3, Brown aff. ¶ 5). The deputies gave instructions to the plaintiff to not move, but he continued to do so (docs. 49-2, Lewis aff. ¶ 6; 49-3, Brown aff. ¶ 5). The deputies then activated their tasers again, and the plaintiff fell to the ground (docs. 49-2, Lewis aff. ¶ 6; 49-3, Brown aff. ¶ 5). The plaintiff began holding the dog, and the deputies ordered the plaintiff to let go of the dog and roll over, but he would not do so (docs. 49-2, Lewis aff. ¶ 6; 49-3, Brown aff. ¶ 5). The deputies submit that, after a brief pause, the plaintiff continued moving toward the rear of the residence, entered a bedroom, and kicked the bedroom door closed behind him (docs. 49-2, Lewis aff. ¶ 6; 49-3, Brown aff. ¶ 5). At that point, the deputies were unsure if there was another individual or any weapons in the rear of the trailer (docs. 49-2, Lewis aff. ¶ 7; 49-3, Brown aff. ¶ 6). The deputies assert that they entered the bedroom and continued to order the plaintiff to stop moving, but the plaintiff failed to comply (docs. 49-2, Lewis aff. ¶¶ 7-8; 49-3, Brown aff. ¶¶ 6-7). The deputies deployed their tasers again (doc. 49-2, Lewis aff. ¶ 8). The plaintiff was on his stomach, and the deputies instructed him to put his hands behind his back (docs. 49-2, Lewis aff. ¶ 8; 49-3, Brown aff. ¶ 7). However, the plaintiff again did not comply (docs. 49-2, Lewis aff. ¶ 8; 49-3, Brown aff. ¶ 7). The plaintiff stayed on his stomach and did not move for a short time, and the deputies thought that he was likely under the influence of some type of substance because he was continuing to fight against the tasers, and the tasers were not having much of an impact (docs. 49-2, Lewis aff. ¶ 8; 49-3, Brown aff. ¶ 7). In addition, Deputy Lewis recognized the plaintiff and had previously observed him as appearing like he was under the influence of some type of substance (doc. 49-2, Lewis aff. ¶ 8).
While the deputies acknowledge that they each deployed their tasers at this time, it is unclear if the plaintiff was hit by the prongs from just one or both tasers (docs. 49-2, Lewis aff. ¶ 5; 49-3, Brown aff. ¶ 4).
The deputies assert that the plaintiff, while still on his stomach, began to place his right hand under the bed, which caused them concern because, in their experience, individuals often keep weapons under the bed (docs. 49-2, Lewis aff. ¶ 9; 49-3, Brown aff. ¶ 8). Moreover, the plaintiff then grabbed a box fan and threw it at the deputies (docs. 49-2, Lewis aff. ¶ 9; 49-3, Brown aff. ¶ 8). In response, the deputies deployed their tasers again and continued to instruct the plaintiff to stop moving (docs. 49-2, Lewis aff. ¶ 9; 49-3, Brown aff. ¶ 8). At that point, the plaintiff was laying on his side and stopped moving for a few moments (docs. 49-2, Lewis aff. ¶ 10; 49-3, Brown aff. ¶ 9). The deputies instructed the plaintiff to lay face down and place his hands behind his back, but the plaintiff did not do so (docs. 49-2, Lewis aff. ¶ 10; 49-3, Brown aff. ¶ 9). The deputies note that, although the plaintiff refused to comply, he seemed subdued (docs. 49-2, Lewis aff. ¶ 10; 49-3, Brown aff. ¶ 9). The deputies considered whether to try to place him in handcuffs, but they decided to wait for additional deputies due to the potential of the plaintiff physically resisting (docs. 49-2, Lewis aff. ¶ 10; 49-3, Brown aff. ¶ 9). Additional deputies were on the way at that time (docs. 49-2, Lewis aff. ¶ 10; 49-3, Brown aff. ¶ 9).
The deputies assert that they continued to instruct the plaintiff to roll over onto his stomach and place his hands behind his back, but the plaintiff still refused (docs. 49-2, Lewis aff. ¶ 11; 49-3, Brown aff. ¶ 10). While the deputies were waiting on backup, the plaintiff then started to move towards a bathroom, and the deputies activated their tasers again (docs. 49-2, Lewis aff. ¶ 11; 49-3, Brown aff. ¶ 10). The plaintiff got into the bathroom, and the additional deputies arrived (docs. 49-2, Lewis aff. ¶ 11; 49-3, Brown aff. ¶ 10). The deputies then went into the bathroom to try to restrain the plaintiff, and the plaintiff began throwing objects at the deputies (docs. 49-2, Lewis aff. ¶ 11; 49-3, Brown aff. ¶ 10). One of the items that the plaintiff threw bent a deputy's metal nameplate (docs. 49-2, Lewis aff. ¶ 12; 49-3, Brown aff. ¶ 11). The deputies were collectively able to subdue the plaintiff (docs. 49-2, Lewis aff. ¶ 12; 49-3, Brown aff. ¶ 11). The deputies put leg irons on the plaintiff because he was kicking and a spit mask on him because he was spitting and trying to bite the deputies (docs. 49-2, Lewis aff. ¶ 12; 49-3, Brown aff. ¶ 11). Deputy Lewis contends that the plaintiff bit him once (doc. 49-2, Lewis aff. ¶ 12). The deputies were able to pull the plaintiff out of the bathroom and place him in handcuffs, despite the plaintiff continuing to resist (docs. 49-2, Lewis aff. ¶ 13; 49-3, Brown aff. ¶ 12).
The deputies assert that EMS was then contacted (docs. 49-2, Lewis aff. ¶ 14; 49-3, Brown aff. ¶ 13). While waiting on EMS, Deputy Lewis was standing by the plaintiff to keep him from moving, and Deputy Lewis observed a bag containing what appeared to be cocaine (doc. 49-2, Lewis aff. ¶ 14). Deputy Lewis notes that the plaintiff was also found to have a bag of marijuana in his pocket (id.). EMS arrived shortly after the plaintiff was restrained, and, the plaintiff was still agitated and physically resisting (docs. 49-2, Lewis aff. ¶ 14-15; 49-3, Brown aff. ¶ 13-14). Because the stretcher would not fit into the residence, the deputies pulled the plaintiff out of the bedroom and then carried him to the stretcher outside (docs. 49-2, Lewis aff. ¶ 15; 49-3, Brown aff. ¶ 14). The plaintiff went to the hospital in an ambulance and remained in the hospital for seven days (docs. 49-2, Lewis aff. ¶ 16; 49-3, Brown aff. ¶ 15). The deputies assert that the plaintiff remained in the hospital because of his substance abuse issue, not because of injuries from the incident in question (docs. 49-2, Lewis aff. ¶ 16; 49-3, Brown aff. ¶ 15). The plaintiff was charged with several offenses as a result of this incident, including breach of peace, assault and battery second degree, assault of a police officer while resisting arrest, and possession of a controlled substance (docs. 49-2, Lewis aff. ¶ 16; 49-3, Brown aff. ¶ 15). However, these charges were ultimately dismissed after the plaintiff was convicted of federal charges and sentenced to fourteen years in prison (docs. 49-2, Lewis aff. ¶ 16; 49-3, Brown aff. ¶ 15).
The plaintiff, on the other hand, contends that he was alone in Malina Owens' (“Ms. Owens”) house and that there was never a question of possible domestic violence because the neighbor that called the police knew that the plaintiff was there alone (docs. 1 at 15; 62 at 4). The plaintiff asserts that he was mopping the kitchen floor when Deputy Lewis first entered the residence, and he told Deputy Lewis to leave (doc. 1 at 15). According to the plaintiff, Deputy Lewis then pointed a gun at him and said that the plaintiff would need to leave with him (id.). The plaintiff submits that he did not pick up a vacuum and charge at Deputy Lewis, but rather, a mop was already in his hand when Deputy Lewis entered the premises (doc. 62 at 4). Moreover, the plaintiff contends that the dog never lunged at Deputy Lewis (id.). The plaintiff submits that he then threw a chair and a table between himself and Deputy Lewis but that the chair never touched Deputy Lewis (docs. 1 at 15; 62 at 4). The plaintiff began to walk away and the deputies tased him in the back (doc. 1 at 15). The plaintiff contends that he tried to pull the taser prongs out of his back but was tased again (id.). Moreover, he tried crawling away from the deputies, but they tased him again (id.). The plaintiff alleges that the deputies kept screaming at him to roll over and, despite him telling the deputies that he could not do so, they tased him multiple times (id.). The plaintiff contends that this tasing occurred until he became unconscious (id.). The plaintiff argues that he could not roll over at the time because his “body was locked up” from being struck by the taser (id.). The plaintiff alleges that he was ultimately tased a total of thirteen times (doc. 62-1 at 1). Further, the plaintiff alleges that, during this encounter, one deputy grabbed him by his throat and choked him (doc. 1 at 16). The plaintiff iterates that he never threw a box fan the deputies and never bit Deputy Lewis (doc. 62 at 5). According to the plaintiff, EMS, not Deputy Lewis, found a bag that contained what appeared to be cocaine and deputies never found marijuana in his pocket (id. at 5-6). The plaintiff also asserts that he does not know Deputy Lewis at all and has never dealt with him in any capacity before, he remained in the hospital for six days after the incident due to the excessive tasing, and his charges were ultimately dismissed due to him requesting a trial and the prosecution knowing that they could not win (id. at 3, 6).
The plaintiff brought this action under 42 U.S.C. § 1983, alleging assault and battery, negligence, and violations of his Fourth, Eighth, and Fourteenth Amendment rights (docs. 1 at 13; 62-1 at 1). The defendants filed a motion for summary judgment on February 25, 2021 (doc. 49). By order filed the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the defendants' motion (doc. 50). After receiving one extension of time, the plaintiff filed a response on April 5, 2021 (doc. 62). On April 9, 2021, the defendants filed a reply (doc. 63).
II. APPLICABLE LAW AND ANALYSIS
A. Rule 12(b)(6) Standard
“The purpose of a [Federal Rule of Civil Procedure] 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “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). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
C. Section 1983 Claims
1. Sheriff Crenshaw
The defendants first argue that Sheriff Mike Crenshaw (“Sheriff Crenshaw”) should be dismissed from this action pursuant to Federal Rule of Civil Procedure 12(b)(6) because the plaintiff fails to state a claim against him (doc. 49-1 at 1-3). Specifically, the defendants assert that the plaintiff fails to satisfy Federal Rule of Civil Procedure 8 because he has not made specific allegations as to how Sheriff Crenshaw violated his rights (id.). In response, the plaintiff asserts that “the complaint does state a claim upon which relief can be granted” (doc. 62 at 2).
As noted above, under Rule 8, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a). The plaintiff alleges that Sheriff Crenshaw is liable in a supervisory capacity (doc. 62 at 2). In § 1983 actions, while the doctrine of respondeat superior generally is not applicable, Polk County. v. Dodson, 454 U.S. 312, 325 (1981), supervisors may be held liable when the following circumstances are met: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an "affirmative causal link" between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). In Randall v. Prince George's County, the Fourth Circuit Court of Appeals further explained these three factors and stated that, “[u]nder the first prong of Shaw, the conduct engaged in by the supervisor's subordinates must be ‘pervasive,' meaning that the ‘conduct is widespread, or at least has been used on several different occasions.'” 302 F.3d 188, 206 (4th Cir. 2002) (quoting Shaw, 13 F.3d at 799).
Moreover, in establishing deliberate indifference under Shaw's second prong, a plaintiff “[o]rdinarily ... cannot satisfy his burden of proof by pointing to a single incident or isolated incidents ... for a supervisor cannot be expected ... to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct.” Id. (quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)).
In his complaint, the plaintiff alleges that Sheriff Crenshaw failed “to take disciplinary or other action to curb the known pattern of physical abuse of arrestees by” Deputy Brown and Deputy Lewis (doc. 1 at 18). Further, the plaintiff submits that this failure “constituted deliberate indifference to the plaintiff's and other prisoners' safety[] and contributed to and approximate cause of the above-described violations of Eighth Amendment rights and assault and battery” (id.). Because the plaintiff has alleged that there was a “pattern of physical abuse of arrestees” by Deputy Brown and Deputy Lewis, Sheriff Crenshaw failed to take disciplinary action in light of that abuse, Sheriff Crenshaw's failure to take action constituted deliberate indifference, and Sheriff Crenshaw's failure was a causal factor of Deputy Brown and Deputy Lewis' violations of his constitutional rights, the undersigned finds that the plaintiff has sufficiently stated a claim under Rule 8. Consequently, the defendants' motion to dismiss for failure to state a claim under Rule 12(b)(6) should be denied.
However, the defendants also argue that Sheriff Crenshaw is entitled to summary judgment because the plaintiff fails to show a genuine issue of material fact regarding these three factors (doc. 49-1 at 15-17). In response, the plaintiff argues that Sheriff Crenshaw “can be held liable as a matter of law in a supervisory capacity” (doc. 62 at 2). Nevertheless, the plaintiff has failed to provide any support for his allegations or satisfy any of the three factors set forth in Shaw. While the plaintiff alleges that Deputy Brown and Deputy Lewis have a “pattern of physical abuse of arrestees, ” he has failed to provide any evidence of this pattern or that Sheriff Crenshaw had any actual or constructive knowledge of it. In his response to the motion for summary judgment, the plaintiff references documents that he attached to objections he previously filed in this matter.
Included in these attachments are two forms titled “Use of Force / Pursuit Review Form.” In these forms, supervisors at the Oconee County Sheriff's Office reviewed Deputy Brown and Deputy Lewis' use of force on the plaintiff and recommended re-training on taser usage and strategies to minimize the No. of cycles (doc. 18-1 at 4-9). While this evidence is relevant to Deputy Brown and Deputy Lewis' use of force in the incident at issue here, it does not show a pervasive, widespread “pattern of abuse” or support the proposition that Sheriff Crenshaw had any actual or constructive knowledge of such alleged pattern. Further, as set out above, plaintiffs ordinarily cannot satisfy their burden of proof of showing deliberate indifference by pointing to a single or isolated incident. Randall, 302 F.3d at 206. Moreover, beyond the conclusory allegation that Sheriff Crenshaw's actions were a cause of his harm, the plaintiff has not provided any evidence of causation. The plaintiff's blanket allegations, without more, are insufficient to survive Sheriff Crenshaw's motion for summary judgment. See Matherly v. Andrews, 859 F.3d 264, 280 (4th Cir. 2017) (“Conclusory or speculative allegations do not suffice to oppose a properly supported motion for summary judgment, nor does a mere scintilla of evidence.”) (citations and internal quotation marks omitted); Pronin v. Johnson, 628 Fed.Appx. 160, 161 (4th Cir. 2015) (“[A] party cannot withstand summary judgment by relying solely on his own self-serving allegations unsupported by any corroborating evidence.”) (citation omitted).
The plaintiff also argues that summary judgment should not be entered in favor of Sheriff Crenshaw because Sheriff Crenshaw “implemented and signed the policy for ta[s]er usage, ” which he also attached to the objections filed previously in this matter (doc. 62-1 at 9). However, the mere fact that the office had a use of force policy and that Sheriff Crenshaw signed it does not elicit that Sheriff Crenshaw was deliberately indifferent to a pervasive pattern of abuse. Therefore, the undersigned recommends that the district court grant summary judgment for Sheriff Crenshaw on the plaintiff's supervisory liability claim.
2. Deputy Brown and Deputy Lewis a. Reasonableness of Use of Force
The plaintiff also alleges that Deputy Brown and Deputy Lewis used excessive force during his arrest, in violation of his constitutional rights. The defendants, however, argue that the deputies' use of force was reasonable under the factors set forth in Graham v. Connor, 490 U.S. 386, 394-95 (1989) (doc. 49-1 at 10-12). Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable . . . seizures, ” and must be judged by reference to the Fourth Amendment's “reasonableness” standard. Graham, 490 U.S. at 394-95 (internal citations omitted). The Fourth Amendment's “reasonableness” inquiry is whether the officers' actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an “allowance for the fact that police officers are often forced to make split-second” decisions about the amount of force necessary in a particular situation. Id. at 396-97. The court utilizes the following factors in evaluating the totality of the facts and circumstances of excessive force claims: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. at 396 (citing Tennessee v. Gardner, 471 U.S. 1, 8-9 (1985)).
It should be noted that the plaintiff also claims that the defendants violated his Eighth and Fourteenth Amendment rights (docs. 1 at 13; 62-1 at 1). However, it is undisputed that the plaintiff was not yet a convicted prisoner during this matter, and thus, the Eighth Amendment is inapplicable to his claims. See Graham, 490 U.S. at 398-99 (“[T]he less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions”) (citations and internal quotation marks omitted). Moreover, all excessive force claims during an arrest are governed by the reasonableness standard under the Fourth Amendment, not a substantive due process approach under the Fourteenth Amendment. See Id. at 395 (“[A]ll 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, rather than under a ‘substantive due process' approach.”). Consequently, the court will analyze the plaintiff's claims under the Fourth Amendment. To the extent that the plaintiff alleges a due process claim regarding the investigation of Deputy Brown and Deputy Lewis' use of force by the Oconee Sheriff's Office, (see doc. 1 at 17), the defendants have not moved on this issue in their motion for summary judgment.
In Meyers v. Baltimore County, Maryland, the Fourth Circuit Court of Appeals examined whether an officer's repeated use of a taser constituted excessive force by parsing apart the separate taser deployments. 713 F.3d 723, 732-34 (4th Cir. 2013) (finding that an officer's first three taser deployments were reasonable considering that the plaintiff, who was in a living room, was actively resisting with a baseball bat, acting erratically, and advancing towards the officers, but that there was a genuine issue of material fact regarding the reasonableness of the seven subsequent taser deployments). Given that “each taser deployment constitutes a use of force, ” Waters v. Stewart, C/A No. 4:15-cv-04143-RBH, 2019 WL 1146685, at *6 (D.S.C. Mar. 13, 2019), and the sheer No. of taser deployments in the instant matter, the undersigned finds that a piecemeal approach is appropriate here.
While the plaintiff alleges that he was tased thirteen times, the undersigned has reviewed the camera footage submitted by the defendants and notes that the video indicates that there were at least seventeen taser deployments. First, after the deputies entered the residence, the footage shows that the plaintiff aggressively charged towards Deputy Lewis with a mop and then threw a chair and a table towards the deputies (Lewis body cam at 5:36-6:00). While the plaintiff contends that he did not charge at Deputy Lewis with the mop or throw these objects at the deputies, the camera footage clearly shows otherwise. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). Moreover, the plaintiff resisted commands from the deputies (Lewis body cam at 5:36-6:00). The deputies then tased the plaintiff (id. at 5:56- No. 6:02). Second, after the first tase, the plaintiff fell to the ground, got up, and then began to walk from the deputies towards the rear of the residence (id. at 6:00-6:04). The deputies instructed the plaintiff to stay down, but he continued to move (id.). The deputies tased the plaintiff again (id. at 6:05-10). Third, the plaintiff was laying on the ground in a hallway after the second tase and began holding the dog (id. at 6:05-23). The deputies instructed the plaintiff to let go of the dog, but the plaintiff did not do so (id. at 6:14-21). The deputies then tased the plaintiff (id. at 6:20-23). Fourth, the plaintiff was still laying in the hallway, and the deputies instructed him to roll over (id. at 6:27-31). The plaintiff did not comply but instead sat upright (id. at 6:30-32). The deputies then tased the plaintiff (id. at 6:31-38). Fifth, the plaintiff began to slide on his back towards the rear of the residence and into a bedroom, despite the deputies' commands to roll over (id. at 6:37-45). The deputies then tased the plaintiff again (id.). Sixth, the plaintiff got into the bedroom and kicked the door closed behind him (id. at 6:37-46). The deputies entered the bedroom and, upon seeing the plaintiff laying on the bedroom floor, tased him again (id. at 6:47-56). Seventh, the plaintiff, while still laying on the bedroom floor, fidgeted and occasionally put his right arm under the bed (id. at 6:56-7:53). The deputies tased him again (id. at 7:53-57). Eighth, despite the plaintiff's assertions to the contrary, the footage shows that the plaintiff threw a box fan towards the deputies (id. at 7:56-7:58). The deputies then tased him (id. at 7:58-8:05). Ninth, the plaintiff began to slide towards the bathroom, and the deputies tased him (id. at 8:46-50). Tenth, the deputies instructed the plaintiff to roll over, while the plaintiff was still laying on the bedroom floor (id. at 8:50-55). The plaintiff told them “I can't, ” and the deputies then tased him (id. at 8:50-9:02). Eleventh, the plaintiff started to slide towards the bathroom again, and the deputies tased him (id. at 14:31-33). Twelfth, the plaintiff again started to slide towards the bathroom, and the deputies tased him (id. at 14:33-41). Thirteenth, the plaintiff slid into the bathroom, and the deputies tased him again (id. at 14:35-39). Fourteenth, the plaintiff sat upright in the bathroom and threw an object into the tub, and the deputies tased him (id. at 14:44-47). Fifteenth, the plaintiff threw a toothbrush holder from the bathroom counter into the tub, and the deputies tased him (id. at 14:58- 15:03). Sixteenth, the plaintiff began to throw bathroom objects at the deputies, and they tased him (id. at 15:16-27). And seventeenth, several deputies held the plaintiff down on the bathroom floor and instructed the plaintiff to move one of his legs (id. at 16:00-12). The plaintiff said “I can't, ” and a deputy then tased him (id. at 16:04-19).
In the seminal case of Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, the Fourth Circuit Court of Appeals addressed excessive force in the specific context of tasers and opined that "tasers are proportional force only when deployed in response to a situation in which a reasonable officer would perceive some immediate danger that could be mitigated by using the taser." 810 F.3d 892, 903 (4th Cir. 2016). In explaining the “risk of immediate danger, ” the court stated that “[a]t bottom, ‘physical resistance' is not synonymous with ‘risk of immediate danger[, ]'" and “[t]he subject of a seizure does not create such a risk [of immediate harm] simply because he is doing something that can be characterized as resistance - even when that resistance includes physically preventing an officer's manipulations of his body.” Id. at 905, 909. Further, the court recognized different levels of force and stated that while “[n]oncompliance with lawful orders justifies some use of force, . . . the level of justified force varies based on the risks posed by the resistance." Id. at 901 (citation omitted). In specifically addressing tasers in the context of these precepts, the court stated that deploying a taser is “a serious use of force, ” tasers “are designed to caus[e] ... excruciating pain, ” their “application can burn a subject's flesh, ” and they inflict “a painful and frightening blow.” Id. at 902 (citations and internal quotation marks omitted).
The undersigned finds that while some of the taser deployments were reasonable under the Graham factors, genuine issues of material fact remain regarding the reasonableness of many of the others. In several instances, the plaintiff was actively and violently resisting the deputies and throwing objects at them, thus presenting a risk of immediate danger to the deputies. Regarding the first tase, the deputies allege that they were reporting to the residence for a potential domestic dispute. While the plaintiff argues that he was home alone and that there was no domestic dispute, "[a]n officer's decisions that were mistaken, but nevertheless were reasonable, do not transgress constitutional bounds." Gray v. Bd. of Cnty. Comm'rs of Frederick Cnty., 551 Fed.Appx. 666, 673 (4th Cir. Jan. 8, 2014) (citation and internal quotation marks omitted). The deputies were unaware if there were any weapons or other individuals in the residence who could be at risk of harm. Moreover, the plaintiff charged Deputy Lewis with a mop and threw a chair and table towards the deputies. Consequently, under the Graham factors, the plaintiff has failed to show that a genuine issue of material fact exists regarding the reasonableness of the deputies' first use of force. Moreover, at the time of the second tase, the plaintiff resisted commands to stay down and walked away from the deputies towards the rear of the residence. Again, the deputies were responding to a potential domestic dispute and they were still unaware if there were any weapons or other individuals in the rear of the residence. Thus, under the Graham factors, the undersigned also finds that the plaintiff has failed to show that a genuine issue of material fact exists regarding the reasonableness of the deputies' use of force regarding the second tase. The undersigned also notes that the plaintiff posed a risk of immediate danger to the deputies regarding the eighth and sixteenth tases, when he threw a box fan and bathroom objects at the deputies. At this point, the plaintiff had assaulted a deputy. Moreover, beyond merely “physically preventing an officer's manipulations of his body, ” Armstrong, 810 F.3d at 909, the plaintiff was actively resisting and picking up objects and using them as weapons against the deputies. Under these circumstances, the plaintiff posed a risk of immediate danger that could be mitigated by the use of a taser, and the deputies' serious level of force was reasonable.
However, viewing the evidence in a light most favorable to the plaintiff, genuine issues of material fact remain regarding many of the other thirteen or more tase deployments. In many of these other instances, specifically tases three, four, six, seven, ten, and seventeen, the plaintiff was laying on the ground either fidgeting, sitting himself upright, or not moving at all and not attempting to violently, physically resist the deputies. While the plaintiff was passively resisting verbal commands to roll over and put his hands behind his back, the undersigned finds that a genuine issue of material fact exists regarding whether the plaintiff's passive noncompliance in these instances warranted the serious level of force of a taser. Armstrong, 810 F.3d at 904 (“noncompliance with police directives and nonviolent physical resistance do not necessarily create a continuing threat to the officers' safety.”). To elaborate, in the third tase, the plaintiff was laying on the ground and holding the dog. The deputies instructed the plaintiff to let go of the dog and, when he did not do so, they tased him. In addition, with regard to the tenth tase, the plaintiff was laying on the floor and not moving. When the deputies instructed him to roll over, the plaintiff said “I can't.” The deputies then tased him. Moreover, in the seventeenth tase, when deputies were on top of the plaintiff and holding him down, one deputy ordered the plaintiff to move his leg. The plaintiff said “I can't, ” and a deputy then tased him. While the plaintiff had previously physically resisted and assaulted a deputy, he was not actively resisting in those moments, and jury questions remain regarding whether he posed an immediate threat to the officers.
Furthermore, the undersigned also finds that genuine issues of material fact remain regarding the fifth, ninth, eleventh, twelfth, and thirteenth tases. In these instances, the plaintiff was sliding on the ground away from the officers. The plaintiff asserts that he was subconsciously sliding away from the pain. Again, while the plaintiff had previously physically resisted by charging Deputy Lewis with a mop and throwing a chair and table towards the deputies, “noncompliance with police directives and nonviolent physical resistance do not necessarily create a continuing threat to the officers' safety, ” Armstrong, 810 F.3d at 904, and jury questions exist regarding whether he posed an immediate and continuing risk of danger at that time. See Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (noting that “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.”). In addition, a genuine issue of material fact remains regarding the fourteenth and fifteenth tases. Although the plaintiff was agitated and picked up and threw objects into a bathtub, he did not throw them towards the deputies. The undersigned notes that reasonable minds could disagree on whether the deputies' use of force was reasonable under those circumstances, and the determination is appropriate for a jury. Questions also remain regarding the reasonableness of the deputies tasing the plaintiff at least seventeen times in total. To further support this point, as set out above, the plaintiff has produced forms in which supervisors in the Oconee County Sheriff's Office reviewed Deputy Brown and Deputy Lewis' use of force on the plaintiff and recommended retraining on the taser and how to limit the No. of cycles used. Therefore, the undersigned recommends that the district court deny the defendants' motion for summary judgment regarding the plaintiff's excessive force claim.
b. Qualified Immunity
The defendants also argue that they are entitled to qualified immunity in their individual capacities (doc. 49-1 at 13-15). Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not “violate clearly established rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity is lost if an official violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id. To determine whether qualified immunity applies, a district court must determine whether a plaintiff has alleged the deprivation of an actual constitutional right at all and whether the particular right was clearly established at the time of the alleged violation. See Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (per curiam); Wilson v. Layne, 526 U.S. 603, 609 (1999).
Here, as discussed above, genuine issues of material fact remain to whether Deputy Brown and Deputy Lewis violated the plaintiff's constitutional rights. Accordingly, the defendants are not entitled to summary judgment on the first prong of the qualified immunity analysis. See Hewitt v. Bennett, C/A No. 6: 19-1927-JFA-KFM, 2020 WL 3420756, at *4-5 (D.S.C. June 22, 2020) (finding that summary judgment on qualified immunity grounds was improper where material factual disputes remained regarding the conduct of the defendant (citations omitted)); see also Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005) (“[T]o the extent that a dispute of material fact precludes a conclusive ruling on qualified immunity at the summary judgment stage, the district court should submit the factual questions to the jury and reserve for itself the legal question of whether the defendant is entitled to qualified immunity on the facts found by the jury.”); Buonocore v. Harris, 65 F.3d 347, 359 (4th Cir. 1995) (“Summary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendant.”). Moreover, this deprivation was clearly established at the time of the alleged violation, as the Fourth Circuit made clear in 2016, in Armstrong, that a taser "may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk.” 810 F.3d at 909. Consequently, the undersigned recommends that the district court deny the motion for summary judgment on the basis of qualified immunity at this time.
D. State Law Claims
The plaintiff also alleges state law tort claims of assault and battery and negligence against the defendants (doc. 1 at 13). The defendants argue that Sheriff Crenshaw, Deputy Brown, and Deputy Lewis are not proper parties to any of the plaintiff's state law claims pursuant to the South Carolina Tort Claims Act (“SCTCA”) (doc. 49-1 at 20). In response, the plaintiff argues that “[t]he defendants are proper parties, who acting under the color of law are responsible for violating the plaintiff's rights, and no claims against them should be dismissed” (doc. 62-1 at 9-10).
In South Carolina, the SCTCA provides the “exclusive remedy for any tort committed by an employee of a governmental entity.” S.C. Code Ann. § 15-78-70(a). The SCTCA states that “[a]n employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor . . . .” Id. Specifically, the SCTCA grants this immunity by providing:
A person, when bringing an action against a governmental entity . . ., shall name as a party defendant only the agency or political subdivision for which the employee was acting . . . . In the event that [an] employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as the party defendant.Id. § 15-78-70(c); see Beaufort v. Thompson, C/A No. 2: 20-cv-01197-DCN-MGB, 2021 WL 1085313, at *5 (D.S.C. Mar. 22, 2021). However, an employee is not entitled to this immunity “if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-70(b). Under those exceptions, “a state employee can . . . be held personally liable by a federal court . . . .” Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005).
Regarding the plaintiff's assault and battery claim, “[u]nder South Carolina law, if a Sheriff's deputy uses excessive force, or force greater than is reasonably necessary under the circumstances, he may be [personally] liable for assault." Stewart v. Beaufort Cty., 481 F.Supp.2d 483, 492 (D.S.C. 2007) (citations and internal quotation marks omitted). Here, the plaintiff has alleged that Deputy Brown and Deputy Lewis used excessive force against him and that this force was done “maliciously and sadistically” and to “cause harm” (docs. 1 at 18; 62-1 at 5). Moreover, the plaintiff has shown that a genuine issue of material fact exists regarding whether the deputies' use of force was unreasonable and excessive under the circumstances. Accordingly, the undersigned recommends that the district court find that a genuine issue of material fact exists as to whether Deputy Brown and Deputy Lewis are entitled to immunity under the SCTCA for the assault and battery claim against them. See Beaufort, 2021 WL 1085313, at *6 (denying individual officers' motion to dismiss the plaintiff's assault and battery claim against them based on the SCTCA because the plaintiff adequately alleged an excessive force claim and, under those circumstances, the individual officers “may be [personally] liable for assault.”); Morning v. Dillon Cty., C/A No. 4: 15-cv-03349-RBH, 2017 WL 4276906, at *6 (D.S.C. Sept. 27, 2017) (“Because Plaintiff has a viable § 1983 excessive force claim against Rogers, there is a genuine issue of material fact as to whether the DCSO is liable under the SCTCA for the alleged assault and battery committed by Rogers.”) (citation omitted).
However, the plaintiff has failed to allege facts that would fall under one of the SCTCA exceptions regarding an assault and battery claim against Sheriff Crenshaw. It is undisputed that Sheriff Crenshaw was not present during the plaintiff's arrest. Moreover, the plaintiff merely alleges that Sheriff Crenshaw failed “to take disciplinary or other action to curb the known pattern of physical abuse of arrestees by” Deputy Brown and Deputy Lewis and that this failure “constituted deliberate indifference to the plaintiff's and other prisoners' safety[] and contributed to and approximate cause of the above-described violations of Eighth Amendment rights and assault and battery” (doc. 1 at 18). Consequently, because the plaintiff has failed to allege that Sheriff Crenshaw's conduct was not within the scope of his official duties or that it constituted actual fraud, malice, intent to harm, or a crime involving moral turpitude, the undersigned recommends that the district court grant the defendants' motion for summary judgment as to the plaintiff's assault and battery claim alleged against Sheriff Crenshaw.
Regarding the plaintiff's negligence claim, the undersigned finds that such a claim, by its very nature, cannot fall under one of the enumerated exceptions when the plaintiff does not allege that the defendants acted outside of the scope of their official duties. Beyond the scope of official duties, all of the SCTCA exceptions require a “requisite element of intent.” See Beaufort, 2021 WL 1085313, at *6. Claims for negligence, however, lack such intent. See id.; e.g., Mosley v. Mueller, C/A No. 1:19-2383-SLA-SVH, 2020 WL 5986220, at *6 (D.S.C. Mar, 24, 2020) (finding state law gross negligence claim failed to overcome SCTCA immunity because it necessarily lacked the element of intent), R&R adopted by 2020 WL 3638111 (D.S.C. July 6, 2020); Smith, 394 F.Supp.2d at 792 (finding negligence claim did not include “intent to harm element” and thus could not be asserted against employees in their individual capacities under the SCTCA). Because the plaintiff has not alleged that Deputy Brown, Deputy Lewis, or Sheriff Crenshaw acted outside of the scope of their official duties, the undersigned recommends that the district court grant summary judgment to the defendants on the plaintiff's negligence claim.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the court recommends that the defendants' motion for summary judgment (doc. 49) be granted in part and denied in part. It is recommended that summary judgment be granted to Sheriff Crenshaw on the plaintiff's federal and state law claims and that he be dismissed from this action, granted to Deputy Brown and Deputy Lewis on the plaintiff's negligence claim, and denied to Deputy Brown and Deputy Lewis on the plaintiff's § 1983 excessive force and state law assault and battery claims. Further, because the defendants did not submit arguments regarding the Oconee County Sheriff's Office, it is recommended that summary judgment be denied for that defendant on all of the plaintiff's claims.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n 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.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).