R. BRYAN HARWELL, District Judge.
Plaintiff Chadwick Wayne Johnson, proceeding pro se and in forma pauperis,
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) ("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."). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party, Reyazuddin, 789 F.3d at 413, but the Court "cannot weigh the evidence or make credibility determinations." Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).
Moreover, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A dispute of material fact is `genuine' if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party." Seastrunk v. United States, 25 F.Supp.3d 812, 814 (D.S.C. 2014). A fact is "material" if proof of its existence or nonexistence would affect disposition of the case under the applicable law. Anderson, 477 U.S. at 248.
At the summary judgment stage, "the moving party must demonstrate the absence of a genuine issue of material fact. Once the moving party has met his burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show that there is a genuine issue for trial." Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992) (internal citation omitted). Summary judgment is not warranted unless, "from the totality of the evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the [C]ourt believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment as a matter of law." Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The Fourth Amendment prohibition against unreasonable seizures bars the use of excessive force on free citizens, whether it be "in the course of an arrest, investigatory stop, or other `seizure.'" Graham v. Connor, 490 U.S. 386, 395 (1989). The Court must apply an "objective reasonableness" standard in determining whether an officer has used excessive force when seizing a free citizen. E.W. by & through T.W. v. Dolgos, ___ F.3d ___, ___, 2018 WL 818303, at *4 (4th Cir. Feb. 12, 2018). "The question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force." Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). This objective inquiry is based on the totality of the circumstances, and it requires an examination of the officer's actions in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation—subjective motives, intent, and/or propensities are irrelevant. Dolgos, 2018 WL 818303, at *4. A non-exhaustive list of factors to consider include: (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 he is actively resisting arrest or attempting to evade arrest by flight." Id. (citing Graham, 490 U.S. at 396). "Evaluating the reasonableness of the officer's actions `requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at 396).
Plaintiff brings this § 1983 action for excessive force against Defendant Joe Kinard, a deputy employed by the Darlington County Sheriff's Office ("DCSO"). Both parties agree Plaintiff was detained and tased multiple times at a convenience store in Hartsville, South Carolina, around midnight on December 12, 2014. However, as the Magistrate Judge explains, the parties materially disagree as to what led to Plaintiff being tased and how many times he was tased.
Plaintiff alleges that his wife drove him to the store, that he bought cigarettes and reentered the passenger side of the car, that several vehicles "rapidly approached," and that approximately three to five people exited them and ordered Plaintiff to exit his car with his hands up. Plaintiff claims he was inexplicably tased three times by three different officers despite immediately exiting the car with his hands raised and back facing them. These allegations appear in Plaintiff's verified amended complaint. See ECF No. 26.
Meanwhile, Defendant contends that he and another officer, Freddie Englebert, observed Plaintiff run back and forth between a trash can in front of the store and quickly enter a nearby parked car. Defendant activated the blue lights of his patrol car, exited it, and asked Plaintiff to exit his vehicle. Plaintiff was "clenching something in his right fist," did not respond when Defendant asked him what he was holding, and put his right hand in his pocket when asked to show his hands. Defendant claims he was concerned Plaintiff could have a weapon, so he grabbed Plaintiff's right hand, but Plaintiff began fighting and put a plastic bag containing a white substance in his mouth. Defendant asserts he and Plaintiff went to the ground struggling, and Englebert tased Plaintiff when he "became more combative"; the first tase did not make Plaintiff comply, so Defendant instructed Englebert to tase Plaintiff a second time, which caused Plaintiff to spit out a baggie containing crack cocaine. Plaintiff was then arrested for possession of crack cocaine and taken to jail.
Given the factual disputes, the Magistrate Judge recommends denying Defendant summary judgment to the extent that Plaintiff has sued him in his individual capacity, and denying Defendant qualified immunity. See R & R at pp. 5-12. The Magistrate Judge further recommends granting Defendant summary judgment for the claims asserted against him in his official capacity.
Defendant acknowledges in his objections that "[t]here is no dispute that force was used when Plaintiff was arrested outside a convenience store." ECF No. 83 at p. 1. However, Defendant attacks the sufficiency of the evidence that Plaintiff presents, arguing: (1) even disregarding the affidavits of Defendant and Englebert, the incident report was prepared contemporaneously with Plaintiff's arrest and before this lawsuit was filed; (2) Plaintiff merely restates and relies upon the conclusory allegations from his complaint and fails to produce the alleged dashcam video or body microphone evidence he references; (3) Plaintiff provides no corroborating testimony from his wife or any other witness; (4) Plaintiff presents no evidence that Defendant acted outside his official duties or with actual malice or intent to harm; and (5) Plaintiff does not reveal any injuries from this encounter or requests for medical treatment.
Defendant's arguments essentially ask the Court to impermissibly weigh the evidence and make credibility determinations, and therefore the Court cannot accept them. See Jacobs, 780 F.3d at 569 (emphasizing a court "cannot weigh the evidence or make credibility determinations" when ruling on a motion for summary judgment). Plaintiff's amended complaint is verified and contains allegations based on his personal knowledge, and therefore it is sufficient by itself to preclude summary judgment. See Carter v. Fleming, 879 F.3d 132, 141 n.8 (4th Cir. 2018) ("`[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.'" (alteration in original) (quoting Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991))); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979) (holding that factual allegations contained in a verified complaint may establish a prima facie case under 42 U.S.C. § 1983 sufficient to defeat summary judgment).
Moreover, the Fourth Circuit recently reversed this Court's grant of summary judgment in a similar case involving a § 1983 excessive force claim and use of a taser. See Richardson v. Mahon, 697 F. App'x 249 (4th Cir. 2017). There, the police officer contended he tased the plaintiff after "attempting to speak to [the plaintiff]'s wife regarding a domestic violence complaint and [when the plaintiff] approached him aggressively, `got chest to chest' with [the officer], and actively resisted arrest." Id. at 250. The plaintiff, however, "averred that his wife was leaving the premises when [the officer] arrived, that he did not behave aggressively or get `chest to chest' with [the officer], and that he did not resist any commands, and nevertheless, [the officer] [t]ased him." Id. Based on these competing allegations and need for a credibility determination by a jury, the Fourth Circuit reversed this Court's grant of summary judgment to the officer.
Here, Plaintiff alleges he was inexplicably tased three times despite complying with officers' commands and immediately exiting his car with his hands raised and back facing them. Meanwhile, Defendant contends Plaintiff was tased two times after their physical struggle during which Plaintiff put a plastic bag with drugs in his mouth. Like Richardson, the instant case "is essentially that of a classic swearing contest between two litigants," id. at 249, and therefore the Court cannot grant summary judgment.
Although Defendant argues Plaintiff demonstrates no injuries from the tasing, Plaintiff alleges in his verified amended complaint that after being tased and "harsh[ly] hand[led]," he arrived at jail "semi-conscious" and was in "extreme pain" for several days afterwards. See ECF No. 26 at p. 9. Significantly, "the severity of the physical injury resulting from the force used is but one consideration in determining whether force was excessive. Police officers will not be absolved of liability merely because their conduct, however unreasonable, results in only de minimis injury." E.W. by & through T.W. v. Dolgos, No. 16-1608, 2018 WL 818303, at *8 (4th Cir. Feb. 12, 2018) (internal quotation marks and citation omitted); see also Smith v. Murphy, 634 F. App'x 914, 917 (4th Cir. 2015). Moreover, the Fourth Circuit has observed the pain that a taser can inflict:
Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016) (alteration in original and internal footnote omitted). Thus, summary judgment is not warranted on the basis of minimal harm, and Plaintiff's alleged injuries remain relevant to determining whether the force used was excessive.
Regarding Defendant's objection that Plaintiff fails to produce the alleged dashcam video or body microphone evidence from the incident, the Court notes there is no indication that Defendant has produced any such video or audio evidence to corroborate Defendant's or Englebert's version of the events that necessitated Plaintiff being tased. The affidavits and incident report prepared by Defendant and Englebert indicate legitimate reasons for deploying tasers, but Plaintiff has denied those reasons existed by way of his verified amended complaint, thus creating an issue of fact as to whether excessive force was used. Again, the Court has not been provided dashcam, bodycam/microphone, or other such evidence, and is regrettably left with a swearing contest.
Defendant shrewdly observes that "no case could ever merit summary judgment if [p]laintiffs only need to acquire the incident report and vary their version of events to create a factual dispute." ECF No. 83 at p. 4. Unfortunately, that indeed is the case in many excessive force and other § 1983 cases these days; plaintiffs can obtain the incident report and swear (i.e., verify) a contradicting complaint to create an issue of fact and thereby escape summary judgment. The Court has great respect for law enforcement, sincerely understands the difficulties that officers face every day, and does not take lightly Defendant's valid point.
The Court overrules Defendant's objections.
Plaintiff has filed a"Reply to Report and Recommendation" as well as a "Motion to Reserve Oppertunity to Add Defendants." See ECF Nos. 85 & 86. Liberally construed, these documents appear to be a request to amend Plaintiff's complaint (either now or later). See generally Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating "[a] document filed pro se is `to be liberally construed'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))). Defendant has filed a response in opposition to Plaintiff's "Motion to Reserve Oppertunity to Add Defendants." See ECF No. 89.
Plaintiff makes two primary requests.
Federal Rule of Civil Procedure 15(a) allows a party to amend its pleading only with the written consent of the opposing party or leave by the Court, and it specifies the Court "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). "A district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile." Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010). "Although leave to amend should be `freely give[n] when justice so requires,' Fed. R. Civ. P. 15(a)(2), a district court has discretion to deny a motion to amend a complaint, so long as it does not outright refuse `to grant the leave without any justifying reason.'" Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
In this case, however, Plaintiff seeks to amend his complaint (which he already amended once) long after the scheduling deadline for doing so has passed.
Plaintiff has also filed a motion seeking the appointment of counsel. See ECF No. 87. Defendant has filed a response in opposition to the motion. See ECF No. 90.
Generally, a pro se prisoner does not have a right to counsel in a § 1983 action. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989). However, "[t]he court may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e). The decision to appoint counsel is committed to the district court's discretion, "but it is an abuse of discretion to decline to appoint counsel where the case of an indigent plaintiff presents exceptional circumstances." Whisenant, 739 F.2d at 163. In particular, the existence of exceptional circumstances turns on (1) the type and complexity of the case and (2) the capabilities of the individual bringing it. Id. Counsel should be requested "[i]f it is apparent . . . that a pro se litigant has a colorable claim but lacks the capacity to present it." Id.
The Court finds appointment of counsel is proper given the procedural posture of this case (i.e., surviving summary judgment), and therefore will grant Plaintiff's motion and appoint Derek Shoemake, Esquire as counsel for Plaintiff. The Court directs the parties' attention to the "Conclusion" section below.
For the foregoing reasons, the Court adopts and incorporates by reference the Magistrate Judge's R & R [ECF No. 80]. Accordingly, the Court
The Court hereby
