69 F.Supp.3d 553 (M.D.N.C. 2014), 1:12CV800, Maney v. Fealy

Docket Nº:1:12CV800
Citation:69 F.Supp.3d 553
Opinion Judge:James A. Beaty, Jr., United States District Judge.
Party Name:CHRISTOPHER LAWRENCE MANEY, Plaintiff, v. CHIEF JAMES FEALY, individually and in his official capacity, OFFICER TERENCE GARRISON, individually and in his official capacity, THE CITY OF HIGH POINT, Defendants
Attorney:1:12CV800 For CHRISTOPHER LAWRENCE MANEY, Plaintiff: BENJAMIN D. PORTER, LEAD ATTORNEY, JOHN C. VERMITSKY, MORROW PORTER VERMITSKY & FOWLER, PLLC, WINSTON-SALEM, NC. For CHIEF JAMES FEALY, individually and in his official capacity as Chief of City of High Point Police Dept., OFFICER TERENCE GARRI...
Case Date:November 17, 2014
Court:United States District Courts, 4th Circuit, Middle District of North Carolina

Page 553

69 F.Supp.3d 553 (M.D.N.C. 2014)

CHRISTOPHER LAWRENCE MANEY, Plaintiff,

v.

CHIEF JAMES FEALY, individually and in his official capacity, OFFICER TERENCE GARRISON, individually and in his official capacity, THE CITY OF HIGH POINT, Defendants

1:12CV800

United States District Court, M.D. North Carolina

November 17, 2014

Page 554

[Copyrighted Material Omitted]

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For CHRISTOPHER LAWRENCE MANEY, Plaintiff: BENJAMIN D. PORTER, LEAD ATTORNEY, JOHN C. VERMITSKY, MORROW PORTER VERMITSKY & FOWLER, PLLC, WINSTON-SALEM, NC.

For CHIEF JAMES FEALY, individually and in his official capacity as Chief of City of High Point Police Dept., OFFICER TERENCE GARRISON, individualy and in his offical capacity as an Officer of City of High Point Police Dept., THE CITY OF HIGH POINT, A municipality, Defendants: PATRICK MICHAEL KANE, LEAD ATTORNEY, SMITH MOORE LEATHERWOOD LLP, GREENSBORO, NC.

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MEMORANDUM OPINION AND ORDER

James A. Beaty, Jr., United States District Judge.

This matter is currently before the Court on the Motion for Summary Judgment [Doc. #28] filed by Defendant Officer

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Terence Garrison (" Officer Garrison" ).1 The Motion is fully briefed and is now before the Court for review. For the reasons discussed below, the Court grants Defendant's Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 4, 2010, at approximately 10:09 p.m. the High Point Police Department received notice of an alleged assault and robbery at a Sonic Restaurant. The High Point Police Department responded to the notice and received a description of a suspect. Witnesses described the suspect as " a clean shaven black male, approximately thirty to forty years of age, bald head, approximately five foot ten inches, medium build." (Incident Report [Doc. #29-1], at 4.) After receiving the description, the High Point Police Department dispatched multiple officers, including Officer Garrison and his K-9 police dog to search for the suspect.

The search led the officers and the K-9 through a homeless camp in a wooded area where Plaintiff had been residing. When the officers started to approach the campsite, Plaintiff fled. Plaintiff fled to an abandoned house, where he hid behind bushes next to the stairs leading up to the front porch of the house. The K-9 led officers to the abandoned house and up the stairs to the front porch. At that time, Officer Garrison had the K-9 on a three foot lead. Whereas, prior to arriving at the abandoned house, Officer Garrison had the K-9 on a 15 foot lead.

Upon arriving at the abandoned house, the officers did not announce their presence or the presence of the K-9. Officer Garrison, however, stated that while the officers did not see Plaintiff, he believed that the suspect was hiding under the house. Plaintiff stated that once the officers were closer to the house, he could see that they were police officers, but he also did not announce his own presence because he feared the dog and the officers would attack him if he identified himself.

Suddenly, while the officers and the K-9 were on the porch, the K-9 attacked Plaintiff. Plaintiff asserts that the K-9 attacked him from the stairs leading up to the porch. Officer Garrison, however, states that the K-9 jumped from the stairs into the bush where Plaintiff was hiding. During this initial attack, the K-9 tore a two square inch section of underlying hair, skin, and tissue from Plaintiff's head. Officer Garrison realized at that time that Plaintiff did not match the description of the robbery and assault suspect. Plaintiff was a five foot five inch, white male, whereas, the suspect was described as a five foot ten inch, black male. Officer Garrison, however, still instructed Plaintiff to show his hands prior to pulling the K-9 off of Plaintiff. During the time between the initial attack and Plaintiff complying with Officer Garrison's instruction to show his hands, the K-9 bit Plaintiff's left arm and also bit Plaintiff's left thigh area. Plaintiff asserts that the bite to his left arm resulted in several deep puncture wounds and led to a brachial artery blood clot. As to the bite to Plaintiff's left thigh area, Plaintiff asserts that such bite caused deep puncture wounds that caused profuse

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bleeding, bruising, and swelling. The K-9's entire attack, including the initial bite, lasted for approximately 10 seconds.

On July 31, 2012, Plaintiff filed a Complaint based on the above-described facts. In his Complaint, Plaintiff named Chief James Fealy (" Chief Fealy" ) individually and in his official capacity as the Chief of the City of High Point Police Department, Officer Garrison individually and in his official capacity, and the City of High Point (" the City" ) as Defendants. Based on the attack, Plaintiff alleged an excessive force claim against Officer Garrison and the City pursuant to 42 U.S.C. § 1983. Plaintiff's Complaint also alleged state law claims based on the K-9' s attack against all Defendants for battery and against the City and Chief Fealy for negligent training and supervision. Additionally, Plaintiff's Complaint alleged alternative claims against all Defendants under Article I, Section 18 and 19 of the North Carolina Constitution. Defendants, in response, filed a Motion to Dismiss all claims other than Plaintiff's 42 U.S.C. § 1983 claim against Officer Garrison in his individual capacity and Plaintiff's battery claim against Officer Garrison in his individual capacity. The Court granted Defendants' Motion to Dismiss, and as a result, Officer Garrison is the only remaining Defendant in this action and Plaintiff's § 1983 claim and battery claim against Officer Garrison are all that remain at issue.

Officer Garrison has now filed a Motion for Summary Judgment [Doc. #28]. Officer Garrison's Motion for Summary Judgment seeks the dismissal of Plaintiff's excessive force claim and battery claim arguing that the force Officer Garrison used at the time was objectively reasonable. In the alternative, Officer Garrison argues he is entitled to summary judgment as to the excessive force claim based on qualified immunity and that he is entitled to summary judgment as to the battery claim based on North Carolina's public official immunity. Plaintiff filed a response in opposition to Officer Garrison's Motion for Summary Judgment and included an affidavit, in which he provides a description of the events surrounding the attack. Officer Garrison, however, in filing his reply, argues that such affidavit contains improper assertions that are not based on Plaintiff's personal knowledge. Accordingly, Officer Garrison argues that the Court should disregard such statements in ruling on the Motion for Summary Judgment.

II. STANDARD OF REVIEW

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the court shall grant summary judgment when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1349, 89 L.Ed.2d 538 (1986). When making a summary judgment determination, the court must view the evidence and all justifiable inferences from the evidence in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913. It is not the judge's function " to weigh the evidence and determine the truth of the matter[,]" but instead, it is " to determine whether there is a genuine issue for trial."

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). However, the party opposing summary judgment may not rest on mere allegations or denials, and the Court need not consider " unsupported assertions" or " self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson, 477 U.S. at 248-49.

III. DISCUSSION

A. Plaintiff's Affidavit

Initially, the Court will address Officer Garrison's argument concerning the Plaintiff's affidavit attached to Plaintiff's Response to the Motion for Summary Judgment. Officer Garrison argues that the Court must strike the following statements from Plaintiff's affidavit because Officer Garrison alleges that such statements were not made based on personal knowledge:

o " There was no one else at the abandoned house or underneath it to my personal knowledge." (Plaintiff Aff. [Doc. #32-1], at ¶ 14.)

o " . . . which was visible to the officers." (Id., at ¶ 19.) o " It was clear to me that I was immediately visible to the officers where I was crouching." (Id., at ¶ 20.) o " Following the initial bite, Garrison saw me and could see my features and skin color." (Id., at ¶ 22.) o " . . . despite being able to see that I was not the suspect in the robbery." (Id., at ¶ 24.) o " During this entire time and the time preceding it I was visible to Officer Garrison." (Id., at ¶ 27.) o " At no point did the officers continue to search the bushes or house for any other individual." (Id., ¶ 29.)

An " affidavit . . . used to . . . oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4) (emphasis added). When an " affidavit contains both inadmissible and admissible portions courts are free to strike only the inadmissible portions." Morrison v....

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