Bell v. Dawson

• Decision Date: 20 April 2001
• Docket Number: No. Civ. 3:99CV316-H.,Civ. 3:99CV316-H.
• Citation: 144 F.Supp.2d 454
• Court: U.S. District Court — Western District of North Carolina
• Parties: Richard BELL, Plaintiff, v. David DAWSON, Gaston County Police Officer; Kelly Oaks, Gaston County Police Officer; Paul Burgess, Gaston County Police Officer; and the County of Gaston, North Carolina, Defendants.

144 F.Supp.2d 454

Richard BELL, Plaintiff, v. David DAWSON, Gaston County Police Officer; Kelly Oaks, Gaston County Police Officer; Paul Burgess, Gaston County Police Officer; and the County of Gaston, North Carolina, Defendants.

No. Civ. 3:99CV316-H.

United States District Court, W.D. North Carolina, Charlotte Division.

April 20, 2001.

J. Thomas Hunn, David A. Phillips, Gastonia, NC, for plaintiff.

Martha R. Thompson, Stott, Hollowell, Palmer & Windham, Gastonia, NC, for defendants.

MEMORANDUM AND ORDER

HORN, Chief United States Magistrate Judge.

THIS MATTER is before the Court on the "Defendants' Motion for Summary Judgment" (document # 14), "Memorandum in Support ..." (document # 15), "Affidavit of David Dawson" (document # 16), and "Affidavit of Dave Cloutier" (document # 17), all filed February 28, 2001.

Following a telephonic inquiry by chambers staff to the Plaintiff's counsel, on April 6, 2001 — three weeks after the deadline for filing a responsive brief had expired — the Plaintiff filed "... Affidavits in Opposition ..." (document # 18). However the Plaintiff has not filed a brief or cited any authority in opposition to the Defendants' motion. Counsel for the Defendants has informed the Court that no reply will be filed.

The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and this motion is now ripe for the Court's determination.

Having carefully considered the parties' arguments, the record, and the applicable authority, the undersigned will grant the Defendants' motion.

I. PROCEDURAL AND FACTUAL BACKGROUND

Defendants David Dawson, Kelly Oaks, and Paul Burgess were at all times relevant to this action officers with the Gaston County Police Department. The Defendant Gaston County is a political subdivision of the State of North Carolina.

The Plaintiff Richard Bell, a white male, is a citizen and resident of Gaston County, North Carolina, who prior to the events giving rise to this action, was well known to the Gaston County Police Department.¹

In the evening hours of April 4, 1997, the Plaintiff was gathered with a group of people, including his brother, William Darius Bell ("Darius"), outside a residence at 109 Lampan Lane at the Kendrick Avenue Trailer Park situated along Kendrick Avenue in Gaston County, North Carolina. Within 500 feet of the general vicinity of this gathering, there are no less than six inhabited residences.

Around 7:05 p.m. that day, Gaston County 911 communications received a telephoned complaint of "shots fired" in the vicinity of Kendrick Avenue. Defendant Officer Burgess responded to the call. As Officer Burgess traveled down Kendrick Avenue, he heard "a lot of hollering" around Lampan Lane, and noticed approximately ten to fifteen people congregated outside the trailer. Plaintiff, who exuded a strong odor of alcohol, met Officer Burgess' police car in the middle of the road, and stated that "nothing was going on."² Then Officer Burgess saw Darius near the back of the trailer carrying a shotgun. In response to Officer Burgess' verbal command, Darius placed the shotgun and a silver handgun on the hood of a car. Officer Burgess called for back-up assistance³ and then patted Darius down in a search for more weapons. Upon questioning, Darius and the Plaintiff each claimed to be the person who had fired the shotgun and both appeared to be highly intoxicated. The Plaintiff threatened to fight Officer Burgess if he attempted to arrest his brother, but Darius told the Plaintiff to sit down.⁴

The Defendant officers contend that Officer Burgess informed Darius that he was under arrest for discharging a firearm in violation of a County ordinance. Darius responded by stepping back and bringing both fists up to a fighting stance. Officer Burgess talked with Darius who agreed to be and was handcuffed, but then became combative and continually attempted to kick the officers and cursed and threatened them. The officers responded by taking Darius to the ground and placing him on his stomach and then bringing him back to his feet in an attempt to gain control.⁵

As the officers began to struggle with Darius, the Plaintiff, continuing to make threats and curse, attempted to move towards his brother to assist him. Officer Burgess instructed Defendant Officer Dawson to arrest the Plaintiff. Officer Dawson informed the Plaintiff that he was under arrest and handcuffed him. The Plaintiff attempted to pull away from Officer Dawson's grasp of his upper arm and refused to obey the officers' commands to be still and not fight. The Plaintiff threatened the officers, saying he would "kick their ass" if they did not release Darius. At this time, Officer Dawson and Officer Leatherwood, who is not a defendant in this action, took Plaintiff to the ground in order to gain control. Plaintiff was on his back and refused to turn over or to lie on his stomach as commanded and Officer Dawson, with the assistance of Officer Leatherwood and Defendant Officer Kelly Oaks, rolled him onto his stomach. Officer Dawson placed pressure on Plaintiff's upper back with his hands to calm him down. Officer Oaks grabbed Plaintiff's feet to hold him stationary. The Plaintiff continued to curse and make threats. After Plaintiff was placed on his stomach, Officer Dawson and Officer Oaks assisted Plaintiff to his feet by rolling plaintiff to his side, helping him to his knees, and then to his feet by holding onto his upper arm.

The Plaintiff disputes the Defendants' account by way of three affidavits from individuals claiming to be among the crowd at the trailer park. These single page affidavits state only that Darius fought with the officers; that the Plaintiff was seated in a lawn chair until he was knocked out of the chair during the officers' struggle with Darius; and that at some point thereafter, the Plaintiff was face down on the ground with Officer Oaks pushing her knee into the Plaintiff's back and Officer Dawson pulling back on the Plaintiff's arms. The affidavits do not disclose the witnesses' vantage point for observing the struggle, nor do they provide a detailed or coherent description of the entire chain of events.

It is undisputed that the Plaintiff continued to fight Officer Dawson but was finally escorted to a police car and placed in the back seat in a sitting position. While being transported to the county jail, Plaintiff lay down on the seat on his back with hands cuffed underneath him and begun to kick the police car rear right window. Plaintiff made threats to Officer Dawson, saying, "[i]f I see you on the side of the road, I'm going to shoot you, on duty or off, I don't care." Upon arrival at the county magistrate's office, Plaintiff calmed down until his brother entered with other officers. At that time, Plaintiff again began to disobey commands and refused to sit down. Officer Dawson held Plaintiff in a chair by putting his arm across Plaintiff's chest, while other officers held Darius against the wall.

Gaston County Magistrate Matt Hambidge issued three warrants against Plaintiff arising from this arrest, finding probable cause for the warrantless arrest on April 4, 1997, for (1) "resist[ing], delay[ing] and obstruct[ing] [Defendant] Dawson, a public officer ... by struggling, fighting, and refusing to be lawfully arrested," in violation of N.C.Gen.Stat. § 14-223; (2) "threaten[ing] to physically injure ... [Defendant] Dawson," in violation of N.C.Gen. Stat. § 14-277.1; and (3) "discharg[ing] a firearm within 500 feet of a residence of another person," in violation of a Gaston County Ordinance.⁶

Plaintiff was relinquished to the jailers at the Gaston County Jail around 9:00 p.m. and was released on bond at 6:21 a.m. the following morning without any indication of medical complaints or injuries. Four days later, Plaintiff, complaining of left lower back/hip pain, saw Dr. Ron Kirpatrick at Gaston Internal Medicine Clinic. Plaintiff gave a history of an altercation with the police. Dr. Kirpatrick indicated that "in the wrestling, he may have pulled a muscle." The physical exam did not reveal any bruising, marks, abrasions, broken skin, or any other visible sign of injury. Plaintiff was diagnosed with a probable muscle strain in the lower back. In September 1997, Plaintiff had back surgery for a ruptured disc at L5-S1.⁷

On July 2, 1999, the Plaintiff filed this action in Gaston County Superior Court, alleging claims for relief under (1) 42 U.S.C. § 1983 for violations of his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution; and (2) state common law claims for trespass by a public official, false arrest, assault, negligence, and gross negligence. The Defendant officers have been sued in their official and individual capacities, while the Defendant Gaston County has been sued on a theory of respondent superior.

On July 29, 1999, the Defendants removed the state action to this Court based on federal question jurisdiction. Removal appears to be proper and has not been challenged by the Plaintiff.

On February 29, 2001, the Defendants filed the instant "Motion for Summary Judgment" (document # 14). Despite telephonic inquiry from chambers staff, Plaintiff's counsel has elected not to file a brief in opposition, but has merely submitted the above-mentioned affidavits. This motion is now ripe for determination.

II. DISCUSSION OF CLAIMS

A. The Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment should be granted when the pleadings, responses to discovery, and the record reveal that "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." See also Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979). Once the movant has met its burden, the nonmoving party must come forward with specific facts demonstrating a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)....