Mickle v. Ahmed

• Decision Date: 10 July 2006
• Docket Number: C.A. No. 9:05-0867-PMD.
• Citation: Mickle v. Ahmed, 444 F.Supp.2d 601 (D. S.C. 2006)
• Parties: Alexander MICKLE, Plaintiff, v. Ramzi Radhwn AHMED, Hafez Muharan, and Jason Gamba, Defendants.
• Court: U.S. District Court — District of South Carolina

444 F.Supp.2d 601

Alexander MICKLE, Plaintiff, v.Ramzi Radhwn AHMED, Hafez Muharan, and Jason Gamba, Defendants.

C.A. No. 9:05-0867-PMD.

United States District Court, D. South Carolina, Beaufort Division.

July 10, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alexander Mickle, Columbia, SC, pro se.

Elloree A. Ganes, Robert H. Hood, Jr., Hood Law Firm, Charleston, SC, for DefendantJason Gamba.

OPINION AND ORDER

DUFFY, District Judge.

This matter is before the court upon pro se PlaintiffAlexander Mickle's ("Mickle" or "Plaintiff') objections to the United States Magistrate Judge's Report and Recommendations ("R & R") of April 21, 2006, regarding Plaintiff's action pursuant to 42 U.S.C. § 1983.The Magistrate Judge recommends that the Court(1) relieve Defendants Ahmed and Muharan of default judgments entered against them, (2) dismiss Plaintiff's case against Defendants Ahmed and Muharan, (3) deny Plaintiff's motion to execute default judgments, (4) deem moot Defendant Gamba's motion to dismiss, and (5) grant Defendant Gamba's motion for summary judgment.(R & Rat 15.)The record contains the R & R which was made in accord with 28 U.S.C. § 636(b)(1)(B).

A party may object in writing to the R & R within ten days after being served with a copy of the report.28 U.S.C. § 636(b)(1);Fed.R.Civ.P. 72(b).Plaintiff filed timely written objections to the R & R on May 4, 2006.

I.BACKGROUND

The facts, either undisputed or taken in a light most favorable to Plaintiff as the nonmoving party, are as follows:

Mickle is an inmate in the custody of the South Carolina Department of Corrections.On March 10, 2005, Mickle filed a § 1983 complaint alleging Defendants violated his Constitutional rights by using excessive force to secure his arrest on March 22, 2003.Plaintiff also claims Defendants committed acts of police brutality, assault, and battery against him during the arrest.Plaintiff seeks general damages of $100,000, unspecified punitive damages, and unspecified injunctive relief.

On March 22, 2003, at 2:21 A.M., DefendantRamzi Radhwn Ahmed("Ahmed") called 911 to report a disturbance in process at the residence he shares with DefendantHafez Muharan("Muharan").(NCPD Inc. Rpt., Mar. 22, 2003.)DefendantJason Gamba, acting in his capacity as a North Charleston police officer, responded to the call.(Inc.Rpt.)

Ahmed and Muharan independently made statements at the scene reporting they were returning home when they noticed a man moving items inside a car parked near their apartment.(NCPD Victim States., Mar. 22, 2003.)They also noticed the door to their apartment was open.As they passed the parked car, they realized Plaintiff was loading their possessions into his car.When they confronted Plaintiff, he attempted to drive away.Ahmed stopped him by reaching inside the car and grabbing the keys, while Muharan called the police.Plaintiff carried the items back into Defendants' apartment, but they refused to return his keys until the police had arrived.Officer Gamba reached the scene and told Plaintiff to go with him to the patrol car for questioning.(Vic.States.)

Because Mickle appeared nervous and was repeatedly moving his hands toward his pockets as they walked to the officer's car, Gamba conducted a protective pat down for weapons.(Inc.Rpt.)The written statements of Gamba, Mickle, Ahmed, and Muharan diverge at this point.¹Each account agrees (1) a struggle broke out between Officer Gamba and Plaintiff; (2)Plaintiff pulled a tire iron from his pocket; and (3) Ahmed and Muharan rushed over to help Gamba restrain Plaintiff.(Inc. Rpt.)

Gamba states he warned Plaintiff several times he"would deploy the K-9" if he continued to resist arrest.After telling Ahmed and Muharan to move away, Gamba released the K-9.The police dog engaged Mickle, who began striking the dog.After handcuffing Plaintiff, Gamba ordered the K-9 to disengage and he called for backup on Muharan's cell phone.(Inc. Rpt.)

EMS personnel treated Mickle for dog bites at the scene and police transported him to Charleston County Memorial Hospital; at 5:45 A.M., the hospital cleared him for jail and discharged him to the police.(MUSC Pat. Dischg. Instrs., Mar. 22, 2003.)

II.PROCEDURAL HISTORY

On March 10, 2005, Mickle brought a § 1983 action in federal court against Defendants Gamba, Vito K-9,² Muharan, and Ahmed, alleging Defendants had violated his constitutional rights under the Eighth and Fourteenth Amendments by using excessive force during his arrest on March 22, 2003.The district court referred the case to the Magistrate Judge for a Report and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(B).

Plaintiff served each Defendant with his complaint.³On July 15, 2005, Gamba answered Plaintiff's complaint and filed motions (1) to dismiss pursuant to Rule 12(b)(6), and (2) to make more definite pursuant to Rule 12(e).⁴On November 15, 2005, Gamba re-filed the amended answer to Plaintiff's complaint, first filed on August 15, 2005.⁵

On January 19, 2006, Gamba filed a motion for summary judgment with supporting memorandum pursuant to Rule 56(c).⁶On March 23, 2006, Plaintiff filed a response in opposition to Gamba's motion for summary judgment and submitted photocopies of the wounds the K-9 allegedly inflicted on him during his arrest.

Defendants Ahmed and Muharan did not respond to Plaintiff's complaint.On August 18, 2005, Plaintiff moved for default judgments against each Defendant; these judgments were entered by the Clerk on August 22, 2005.On February 3, 2006, Plaintiff filed a motion to execute the default judgments.

III.STANDARD OF REVIEW

A.Report and Recommendations

The Magistrate Judge considers the evidence before him and files an R & R with the district court.The recommendations of the Magistrate Judge have no presumptive weight and the responsibility for making a final determination remains with the district court.Mathews v. Weber,423 U.S. 261, 271, 96 S.Ct. 549, 46 L.Ed.2d 483(1976).The district court determines de novo those portions of the R & R to which Plaintiff specifically objects and may accept, reject, or modify, in whole or in part, the findings and recommendation(s), or may recommit the matter to the Magistrate Judge with instructions.28 U.S.C. § 636(b)(1)(B).Having reviewed the evidence in the record and Plaintiffs objections to the R & R, the district court modifies the R & R analysis and recommends the relief set forth below.

B.Summary Judgment

"Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment `shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986)(quotingFed.R.Civ.P. 56(c)).

"[T]he substantive law will identify which facts are material.Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.Factual disputes that are irrelevant or unnecessary will not be counted."Id. at 248, 106 S.Ct. 2505."The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."Id. at 256, 106 S.Ct. 2505.

"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.The moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."Celotex Corp. v. Catrett,477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).

"Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis."Id. at 327, 106 S.Ct. 2548.

IV.DISCUSSION

A. § 1983 Civil Rights Claims: Fourth Amendment Excessive Force

Plaintiff brings his claims in federal court under 42 U.S.C. § 1983, which permits lawsuits for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws."To state an action under § 1983, plaintiff's claim "must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law."Sigley v. City of Parma Heights,437 F.3d 527, 533(6th Cir.2006)(citingWest v. Atkins,487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40(1988);...