Mcmillian v. Leconey

• Decision Date: 31 May 2011
• Docket Number: No. 5:09-CV-175-BR,5:09-CV-175-BR
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: ERIC M. MCMILLIAN, Plaintiff, v. L.G. LECONEY, Defendant.

ERIC M. MCMILLIAN, Plaintiff,

v.L.G. LECONEY, Defendant.

No. 5:09-CV-175-BR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

Dated: May 31, 2011

ORDER

This matter is before the court on the 28 February 2011 motion for summary judgment (DE # 34) filed by defendant Detective L.G. LeConey of the Raleigh Police Department ("LeConey").¹ Plaintiff Eric M. McMillian ("plaintiff) has filed several documents in response to the motion, including several declarations. (DE ## 38, 40-42.) The motion is now ripe for disposition.

I. BACKGROUND

A. Procedural Background

Plaintiff, proceeding pro se, instituted this action pursuant to 42 U.S.C. § 1983 on 16 April 2009. Plaintiff appears to allege that on 31 March 2009, he was subjected to a false arrest, an unconstitutional seizure, and an unlawful search of his person.² (See, e.g., Compl., DE # 3, at 5-6; Pl.'s Decl., DE # 38, at 3; Pl.'s Decl., DE # 42, at 3.) He also contends that LeConey usedexcessive and unreasonable force in arresting him. (Compl. 5-6.) Plaintiff alleges that, as a result of the encounter with LeConey, he suffered "a closed head injury." (Id. at 5.) He seeks $70,000 in damages for pain and suffering due to mental and physical distress, and he also seeks the cost of a $160 jacket that was ripped as a result of his arrest. (Id. at 6.)

On 21 June 2010, the court dismissed plaintiff's claim under 42 U.S.C. § 1983 to the extent that it was brought against LeConey in his official capacity. (DE # 11.) Plaintiff's § 1983 claim against LeConey in his individual capacity was allowed to proceed. (Id.) LeConey now moves for summary judgment.

B. Factual Background

Because LeConey and plaintiff have provided differing versions of the relevant events that transpired in this case, the court will set out the parties' factual allegations in turn.

1. LeConey's version

On the evening of 31 March 2009, LeConey and Officer K. M. Crocker ("Crocker") were on-duty Raleigh Police Department officers. (LeConey Decl., DE # 35-1, ¶ 9; Crocker Decl., DE # 35-2, ¶ 6.) LeConey and Crocker had been assigned to the downtown district of the Field Operations Division of the Raleigh Police Department for many years prior to 31 March 2009, and their primary law enforcement duties included patrolling downtown Raleigh. (LeConey Decl. ¶ 3; Crocker Decl. ¶ 2.)

While patrolling downtown Raleigh, LeConey and Crocker had observed the conduct of individuals begging for money from pedestrians on numerous occasions. (LeConey Decl. ¶ 6; Crocker Decl. ¶ 3.) Both LeConey and Crocker had interacted with individuals begging for money and had issued citations for violations of the applicable Raleigh City Code provisions.(Id.) In their roles as law enforcement officers, LeConey and Crocker had also gained substantial experience interacting with intoxicated and combative individuals. (LeConey Decl. ¶¶ 7-8; Crocker Decl. ¶¶ 4-5.)

At approximately 10:25 p.m. on the evening of 31 March 2009, LeConey and Crocker were engaged in bicycle patrol of the downtown Raleigh area when they witnessed plaintiff on Wilmington Street in front of Taz's convenience store ("Taz's"). (LeConey Decl. ¶¶ 10-11; Crocker Decl. ¶¶ 7-8.) On numerous occasions, the officers had observed individuals in the area of Taz's loitering, drinking alcohol, or begging for money from pedestrians. (LeConey Decl. ¶ 12; Crocker Decl. ¶ 9.) When two pedestrians approached plaintiff's location, the officers observed plaintiff step into the pedestrians' path, blocking their progress. (LeConey Decl. ¶¶ 14-15; Crocker Decl. ¶¶ 10-11.) Plaintiff began speaking to the pedestrians while extending his hand toward them. (Id.) Plaintiff stepped out of the pedestrians' path and allowed them to pass only after one of the pedestrians handed something to plaintiff. (LeConey Decl. ¶ 15.) Based on the officers' observations and their law enforcement experience, they concluded that plaintiff's conduct was consistent with unlawful begging. (LeConey Decl. ¶ 16; Crocker Decl. ¶ 12.)

The officers crossed Wilmington Street to investigate further, and they stopped their bicycles within a few feet of plaintiff. (LeConey Decl. ¶¶ 17-18; Crocker Decl. ¶¶ 13-14.) Before communicating with plaintiff, both officers observed that plaintiff's appearance was disheveled, that he had bloodshot eyes, and that he smelled of alcohol. (LeConey Decl. ¶ 18; Crocker Decl. ¶¶ 15-16.) When LeConey asked for plaintiff's name, plaintiff's facial expression became angry, his body posture stiffened, and he inserted his clenched fists into his pockets before responding "Eric" in a curt and impatient tone. (LeConey Decl. ¶ 19; Crocker Decl. ¶17.) Plaintiff then ignored LeConey's request for his full name and responded instead with a loud, profane, and insulting verbal assault which would continue unabated throughout the encounter. (LeConey Decl. ¶¶ 20, 29, 31, 38, 41, 46-48, 52, 55, 61; Crocker Decl. ¶¶ 18-19, 24, 26, 30, 34, 41.) Plaintiff also ignored LeConey's requests to remove his hands from his pockets. (LeConey Decl. ¶¶ 25, 31-35; Crocker Decl. ¶¶ 25-26.)

Because plaintiff refused to cooperate, LeConey advised plaintiff that he was being placed under arrest and began attempting to handcuff him. (LeConey Decl. ¶ 23; Crocker Decl. ¶¶ 20-22.) Plaintiff remained rigidly erect and resisted LeConey's attempts to identify the contents of his hands and pockets. (LeConey Decl. ¶¶ 25-28; Crocker Decl. ¶ 22.) He also resisted LeConey's attempts to place him in handcuffs. (LeConey Decl. ¶ 34; Crocker Decl. ¶ 22.) Even when he began to lose his balance and topple over, plaintiff refused to move his arms, legs, or body in order to maintain his balance. (LeConey Decl. ¶¶ 25-28, 30; Crocker Decl. ¶ 23.) Plaintiff began to fall, and LeConey was forced to bear the weight of plaintiff's body and lower him to the sidewalk. (LeConey Decl. ¶ 30; Crocker Decl. ¶ 23.) With plaintiff lying stiffly on the sidewalk, Crocker assisted LeConey in removing plaintiff's hands from his pockets, securing plaintiff's wrists in handcuffs, prying plaintiff's clenched fists open, and conducting a search incident to arrest. (LeConey Decl. ¶¶ 31-40; Crocker Decl. ¶¶ 26-27.) Plaintiff remained non-compliant, loud, and verbally abusive throughout the encounter. (LeConey Decl. ¶¶ 41, 61; Crocker Decl. ¶ 41.)

Upon arrival at the jail, plaintiff claimed that LeConey had smashed his head against a wall and that plaintiff could not see anything out of his left eye. (LeConey Decl. ¶ 52; Crocker Decl. ¶ 33.) Plaintiff demanded medical treatment. (LeConey Decl. ¶¶ 52, 55; Crocker Decl. ¶35.) The officers followed standard Raleigh Police Department procedures and requested medical assistance. (LeConey Decl. ¶ 54.) Plaintiff was transported to Wake Medical Center in Raleigh in the custody of other law enforcement officers. (LeConey Decl. ¶ 57; Crocker Decl. ¶¶ 37-38.) Upon his return from the emergency room, plaintiff was charged with unlawful begging in violation of Raleigh Civil Code §§ 13-2007 and 13-2031, being intoxicated and disruptive in violation of N.C. Gen. Stat. § 14-444, and unlawfully resisting, delaying or obstructing a public officer in violation of N.C. Gen. Stat. § 14-223. (LeConey Decl. ¶¶ 16, 42, 58; Crocker Decl. ¶ 12; LeConey's Mem. Supp. Mot. Summ. J., DE # 35, at 13.) These charges were subsequently dismissed when plaintiff entered a guilty plea in connection with a separate arrest by another law enforcement officer. (LeConey Decl. ¶ 58; see also Pl.'s Dep., DE # 35-3, at 73-74.)

2. Plaintiff's version

Plaintiff's own accounts of the events relevant to this lawsuit have been inconsistent. In response to discovery, plaintiff originally stated that, prior to his encounter with LeConey, he had spent the day working as a day laborer at a construction site picking up trash. (Pl.'s Resp. to Disc., DE # 25, ¶ 6.)³ However, plaintiff testified in his deposition that he had spent most of the day helping an acquaintance move from her home. (Pl.'s Dep. 39-40.) Plaintiff then went to a nightclub/bar called "Two T's" in downtown Raleigh. (Id. at 38.) In response to discovery, plaintiff stated that he had been "dead sober" for the 24-hour period preceding his arrest as he "had not been paid from daily work outside food and bus fare." (Pl.'s Resp. to Disc., DE # 25, ¶ 8.)

In contrast, plaintiff testified in his deposition that he was paid thirty-five dollars for his work on 31 March 2009 and that he had consumed two beers at Two T's immediately prior to his arrest. (Pl.'s Dep. 42, 93.) Plaintiff had between three and four dollars in change remaining when he left Two T's, and he proceeded immediately to Taz's at approximately 10:10 p.m. (Pl.'s Dep. 42-44.) The money in plaintiff's possession included approximately sixty cents in pennies. (Id. at 45.) In response to discovery, plaintiff simply stated that he entered Taz's and "engaged in conversation with [the] clerk before stepping onto [the] sidewalk." (Pl.'s Resp. to Disc., DE # 25, ¶ 6.) However, he gave a more detailed account during his deposition. In his deposition, plaintiff testified that he had intended to purchase a bag of Doritos at Taz's. (Pl.'s Dep. 93.) The store clerk told plaintiff that he would not accept plaintiff's pennies unless they were rolled. (Id. at 43.) Plaintiff then exited Taz's onto the public sidewalk in an attempt to find someone willing to exchange his pennies for other denominations. (Id. at 44-47.) Plaintiff testified that he explained his situation to two passing pedestrians, and one of the pedestrians gave plaintiff several coins while declining plaintiff's pennies in exchange.⁴ (Id.) Plaintiff testified that he did not know the pedestrians that he approached on 31 March 2009. (Pl.'s Dep. 47, 89.)

In contrast to the above account, plaintiff has provided statements indicating that he was "familiar with" the two pedestrians that he approached on the night of 31 March 2009. (Pl.'s Aff. & Decl., DE # 38, at 5; Pl.'s 2d Req....