Clement v. McCarley, 090517 FED11, 16-11660

Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
Judge Panel:Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.
Opinion Judge:PER CURIAM.
Party Name:VICTOR LAMAR CLEMENT, Plaintiff - Appellant, v. BRYAN MCCARLEY, Jointly and Severally, Individual and Official Capacities, et al., Defendants, CARL LIVELY, Jointly and Severally, Individually and Official Capacities, Defendant-Appellee.
Case Date:September 05, 2017
Docket Nº:16-11660
 
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VICTOR LAMAR CLEMENT, Plaintiff - Appellant,

v.

BRYAN MCCARLEY, Jointly and Severally, Individual and Official Capacities, et al., Defendants,

CARL LIVELY, Jointly and Severally, Individually and Official Capacities, Defendant-Appellee.

No. 16-11660

United States Court of Appeals, Eleventh Circuit

September 5, 2017

         DO NOT PUBLISH

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 4:13-cv-00240-HLM

          Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.

          PER CURIAM.

         Victor Lamar Clement, a state prisoner proceeding pro se, appeals the district court's grant of summary judgment in favor of Floyd County Police Department Officer Carl Lively. He argues that the district court improperly deemed Officer Lively's facts admitted and that genuine issues of fact existed on his 42 U.S.C. § 1983 claims for false arrest and excessive force. He also appeals the magistrate judge's denial of his motion for subpoenas. Upon review of the record and the parties' briefs, we affirm.

         I

         Mr. Clement alleged in his § 1983 complaint that Officer Bryan McCarley, who had been previously harassing him, contacted Officer Lively on November 3, 2011, and issued a be-on-the-look-out (BOLO) for a male driving a black Mustang. Mr. Clement later passed Officer Lively's car along the highway and, when he approached an intersection, stopped to allow a tractor-trailer to turn. He then saw a patrol car with its lights activated, so he drove through the intersection and pulled over to the side of the road. Mr. Clement claimed that the patrol car rammed into the passenger side of his car, and when he backed up to get out of the way, he lost control of his car and spun around. Mr. Clement further alleged that Officer Lively falsely stated in a warrant, a police report, an affidavit, and at a bond hearing, that Mr. Clement had rammed into the police car head-on, so his arrest was false and illegal.

         On October 4, 2013, Mr. Clement filed this action asserting a number of claims against the Floyd County Police Department and several of its officers, including Officers McCarley and Lively, in their individual and official capacities. The district court adopted the magistrate judge's report and recommendation and dismissed all of Mr. Clement's claims except his false arrest and excessive use of force claims against Officer Lively in his individual capacity. The magistrate judge subsequently permitted Mr. Clement to amend his complaint, but indicated that his action would proceed only against Officer Lively in his individual capacity on the excessive force and false arrest claims, as well as a state tort claim for physical injury.

         In April of 2015, the magistrate judge granted Mr. Clement's motion to extend the discovery period until June 17, 2015. On June 11, 2015, Mr. Clement moved for the court to issue ten subpoenas duces tecum on various non-parties. The magistrate judge denied his motion, noting that Mr. Clement did not file this request until nearly six months after discovery began and only six days before it was scheduled to end. Nor did Mr. Clement request another extension of the discovery period or explain how he could have completed discovery associated with the requested subpoenas within the existing period.

         Officer Lively moved for summary judgment and attached several documents to his motion, including his affidavit. In the affidavit, Officer Lively stated that he received a BOLO for a black Mustang, and that he saw Mr. Clement drive past him in a black Mustang. He decided to pursue Mr. Clement, accelerating to a speed of 100 miles per hour. Mr. Clement turned left at a red light in front of a semi-trailer and was facing in the wrong direction on the road. When Officer ...

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