Davis v. Richland Cnty.

• Decision Date: 02 July 2014
• Docket Number: Civil Action No.: 4:12-cv-3429-RMG-TER
• Court: U.S. District Court — District of South Carolina
• Parties: ANTONIO DAVIS, Plaintiff, v. RICHLAND COUNTY, SHERIFF LEON LOTT, DEP. SARA GIRON, ADRIAN THOMPSON, and DEP. ADAM CORNWELL, Defendant.

ANTONIO DAVIS, Plaintiff, v. RICHLAND COUNTY, SHERIFF LEON LOTT, DEP. SARA GIRON, ADRIAN

THOMPSON, and DEP. ADAM CORNWELL, Defendant.

Civil Action No.: 4:12-cv-3429-RMG-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

July 2, 2014

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging excessive force and other claims arising out of a traffic stop. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e) and (g), DSC. Presently before the Court is Defendants' Motion for Summary Judgment (Document # 76). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant's Motion for Summary Judgment, could result in dismissal of his Complaint. Plaintiff requested an extension of time to respond to Defendants' Motion, which was granted and the deadline was extended to January 30, 2014. Plaintiff did not file a response to the Motion, and the undersigned entered a Report and Recommendation that his case be dismissed for failure to prosecute under Rule 41(b), Fed.R.Civ.P.

Plaintiff filed an objection to the Report and Recommendation, indicating that he timely mailed a Response to the Motion for Summary Judgment, which the court did not receive. He attached a copy of his Response to his Objection. Thus, the district judge declined to accept therecommendation and recommitted the case back to the undersigned for further review.

II. FACTS

Plaintiff alleges that Defendants used excessive force during a traffic stop on March 3, 2011, when after Plaintiff ran from the car into a wooded area, he was hit with a taser in the buttocks and then shot in the leg. Amended Complaint (Document # 58). The evidence¹ in the record reveals that on March 3, 2011, Defendant Thompson stopped a white Buick Lesabre for a traffic violation² in a high crime area. Thompson Aff. ¶ 3 (Ex. to Def. Motion); Giron Aff. ¶ 4 (Ex. to Def. Motion). A vehicle matching that description was suspected of using drug paraphernalia. Thompson Aff. ¶ 4. Upon contact with the driver and Plaintiff, Defendant Giron detected the smell of marijuana emanating from the car. Giron Aff. ¶ 5. Giron also recognized that Plaintiff was wearing clothes indicative of Folk Nation gang members. Id. Further, Plaintiff appeared to Giron to be tense and nervous and he made several quick glances in her direction. Giron Aff. ¶ 6. Due to the smell of marijuana in the car, the clothing indicative of gang affiliation, and the nervous behavior of the occupants, both the Plaintiff and driver were asked to step out of the vehicle. Giron Aff. ¶¶ 6,7;Thompson Aff. ¶¶ 7, 8; Thompson Car Cam Video (Ex. to Pl. Response). Once the Plaintiff arrived at the back of the car, Giron attempted to perform a Terry frisk to ensure Plaintiff had no weapons. Giron Aff. ¶ 8; Thompson Aff. ¶¶ 8, 9; Thompson Car Cam Video. Giron immediately felt a hard object near Plaintiff's waistband and attempted to place Plaintiff in handcuffs for officer safety, but Plaintiff began to run towards Carlton Drive. Giron Aff. ¶¶ 8, 9; Thompson Aff. ¶ 9; Thompson Car Cam Video. Both Giron and Thompson pursued Plaintiff on foot. Giron Aff. ¶ 10; Thompson Aff. ¶ 10; Thompson Car Cam Video.

While Plaintiff was fleeing from the scene, he engaged in a physical confrontation with a bystander, who saw a gun in Plaintiff's possession, which ended with Plaintiff stating, "I will shoot you." Giron Aff. ¶¶ 11, 12, 13; Riley Voluntary SLED Statement (Ex. B to Giron Aff.); Reese Voluntary SLED Statement (Ex. C to Giron Aff.). Plaintiff then entered some woods and got down on his hands and knees to crawl through the vines. Giron Aff. ¶ 14. Giron pursued Plaintiff through the woods and vines, giving him verbal commands to stop, and based on her observations of the Plaintiff to that point, she deployed the taser and hit Plaintiff in the buttocks. Id. at ¶¶ 14, 15; Reese Voluntary SLED Statement.

The facts are disputed as to what occurred next. Viewing the evidence in the light most favorable to Plaintiff, the taser incapacitated Plaintiff yet Giron fired four to five shots from her weapon, hitting Plaintiff once in the leg. Verified Complaint. Defendant Cornwell then arrived on the scene and kneed and hit Plaintiff in the head several times before handcuffing him.³ Id. Plaintiffdenies ever having a weapon in his possession. Id.

III. STANDARD OF REVIEW

The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. at 322. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4^th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4^th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4^th Cir. 1993).

To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by "citing to particular parts of materials in the record,including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4^th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4^th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

IV. DISCUSSION

A. 42 U.S.C. § 1983

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

1. "Persons" Under § 1983

Defendants Thompson, Giron, Cornwell, and Lott argue that they are entitled to Eleventh Amendment immunity from suit to the extent Plaintiff has sued them in their official capacities. It is well settled that only "persons" may act under color of state law; therefore, a defendant in a § 1983 action must qualify as a "person." In Will v. Mich. Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the United States Supreme Court held that neither a state, a state agency, nor a state official in his or her official capacity is a "person" for purposes of a § 1983damages action. Will, 491 U.S. at 71. See Quern v. Jordan, 440 U.S. 332, 340, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (when a state is the real party in interest because damages are sought from it, the state is entitled to protection from award by sovereign immunity); Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) (state agencies are arms of the state and entitled to Eleventh Amendment immunity); Ram Ditta v. Maryland Nat'l Capital Park & Planning Comm'n, 822 F.2d 456, 457 (4th Cir.1987) (same). A Sheriff in South Carolina and his Sheriff's Deputies are arms of the state and, thus, are entitled to Eleventh Amendment immunity in their official capacities. Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir.1996) (holding that sheriffs are entitled to Eleventh Amendment immunity as arms of the state); McCall v. Williams, 52 F.Supp.2d 611, 615 (D.S.C.1999) (extending immunity to sheriff's deputies as well). Accordingly, summary judgment is appropriate as to any claims under § 1983 raised against Defendants Thompson, Giron, Cornwell, and Lott in their official capacities.

2. Vicarious Liability

Defendants Lott and Richland County argue that summary judgment is appropriate as to any § 1983 claims against them because they cannot be held liable under a theory of vicarious...