Moore v. Morton
| Citation | 958 F.2d 368 |
| Decision Date | 02 April 1992 |
| Docket Number | No. 91-2603,91-2603 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. James Michael MOORE, a minor suing by James Y. Moore, his Guardian ad Litem, Plaintiff-Appellant, v. Wilbert L. MORTON, individually, and a Deputy Sheriff in Granville County, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CA-89-962-5-CIV)
Argued: Emma Jean Levi, Chapel Hill, N.C., for appellant.
Robert Scott Pierce, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., for appellee.
E.D.N.C.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Before K.K. HALL and MURNAGHAN, Circuit Judges, and RICHARD C. WILLIAMS, United States District Judge for the Eastern District of Virginia, Sitting by Designation.
The Appellant, James Michael Moore, filed this action for damages based on various alleged constitutional violations, pursuant to 42 U.S.C. § 1983, and pendant state law claims. In particular, the Appellant asserts claims of false imprisonment, unlawful seizure, excessive force, assault and battery, and intentional infliction of emotional distress. The district court granted the Defendant-Appellee's motion for summary judgment on all counts. We affirm in part and reverse in part.
On the evening of November 29, 1988, Moore attended a high school basketball game at a rival high school, J.F. Webb. As the Appellant left the game, a crowd outside the gymnasium began harassing him and his companions. A group of approximately twentyfive to thirty boys surrounded the Appellant and his friend, Kevin Williams. They were taunting and pushing the two when someone in the crowd seized the Appellant's hat. The Appellant became very upset and began running around frantically searching for his hat. He began yelling and cursing, demanding that it be returned. The crowd had by this time become quite agitated. This includes a fight, observed by the Appellant, in which students of Webb High School beat up one of the Appellant's classmates. The situation was plainly volatile, and the Appellant even admits that he became concerned for his safety.
At this point, a teacher/coach from the Appellant's high school (South Granville) approached the Appellant to calm him down. He was unable to calm the Appellant, however, and decided that the Principal of Webb High School, who was still inside the gymnasium, should be informed of the situation. Principal McDonald, upon being appraised of the situation, immediately went to investigate. Observing the Appellant and a group of individuals he knew to be troublemakers, he became concerned that a riot might ensue. He approached the Appellant to try to calm him down. The Appellant, however, could not be calmed. Principal McDonald then informed the Appellant that if he did not calm down he would be arrested.
It is at this point that the Appellee, Wilbert Morton, arrived on the scene. The Appellee, a large man--5 11s !DAG> and 260 pounds--is a deputy sheriff who does security work for Webb High School. He was dressed in his official uniform and carried a pistol and a 18s !DAG> metal flashlight. As he approached the scene, the Appellee observed Principal McDonald talking to the Appellant. He also observed that the Appellant was jumping up and down, yelling and cursing about someone having taken his hat. Pursuant to Principal McDonald's request, Deputy Morton asked the Appellant to leave. The Appellant refused, insisting instead that Deputy Morton help him find his hat. When the Appellant began trying to evade Deputy Morton's efforts to escort him away from the crowd, the Appellee grabbed the Appellant by the collar and started to drag him away.
As the deputy dragged the Appellant toward the parking lot, the crowd began chanting and encouraging the Appellee to hit Moore. According to the Appellant's deposition, the Appellee then threatened him, asking the Appellant if he did not believe that he, the Appellee, would in fact hit him. Deputy Morton then struck the Appellant with his flashlight, hitting him "very hard" in the face. Five seconds later, when they had reached the lower parking lot, Deputy Morton again struck the Appellant, this time hitting him in the lower right jaw.
The Appellee denies these allegations. He admits that he may have once unintentionally struck the Appellant when he placed the flashlight under the Appellant's throat to restrain him while he was getting a better grip on his collar, but he categorically denies ever intentionally striking the Appellant. A number of witnesses have also signed affidavits stating that they never saw the Appellee strike the Appellant. These include a number of witnesses the Appellant claimed had seen the Appellee strike him.
At the parking lot, the Appellee asked the Appellant where his car was. An acquaintance of the Appellant's, Ulyses Tharrington, told the Appellee that Moore was riding with him. The Appellant testified that Deputy Morton "threw" the Appellant away from him and broke his gold chain. Breaking the chain caused the Appellant to lose the baby ring hanging from it. The Appellant complained about losing his ring and wanted to look for it. Upon his complaints, however, the Appellee grabbed him again and started to drag him to his patrol car.
Again, the Appellee's version of the facts differs. He denies pushing the Appellant away and does not recall the Appellant complaining about losing a ring. Rather, the Appellee states that once they got to the car he turned the Appellant loose and instructed him to go home. The Appellant, however, refused to leave and started yelling and screaming about his hat.
The Appellee then grabbed the Appellant by the collar and dragged him to the patrol car. At the patrol car, the Appellee frisked the Appellant and started putting handcuffs on him. It was the Appellee's intent to take Moore to the Magistrate's office and have him charged with "disorderly conduct." Before he could be taken away, however, Mr. Fisher, an Assistant Principal at the Appellant's high school, arrived to take custody of him. The Appellant was released into Mr. Fisher's custody and taken home. After arriving home and relating his story to his parents, the Appellant was taken by his parents to the Granville Medical Center. There he was treated for abrasions on the left temple and behind the right ear, swelling over the right cheek, injury to the upper and lower lips, and lacerations at the tooth level.
We review a district court's grant of summary judgment de novo, employing the same standard applied by the district court. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir.1987). In accordance with Rule 56 of the Federal Rules of Civil Procedure, we will affirm a grant of summary judgment if, after reviewing the pleadings, depositions, interrogatories, and affidavits, we are satisfied that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). The party moving for summary judgment bears the initial burden of pointing to the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Higgins v. Scherr, 837 F.2d 155, 157 (4th Cir.1988). The burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.1987).
The first issue addressed by the district court was the Section 1983 claim for unlawful seizure and the state law claim for false imprisonment. Under both North Carolina and federal law, a seizure falling short of a traditional arrest is subject to a requirement of reasonableness. See Terry v. Ohio, 392 U.S. 1, 16 (1968); State v. Harris, 384 S.E.2d 50, 53 (N.C.App.1989), aff'd, 391 S.E.2d 187 (N.C.1990). If the conduct of Deputy Morton amounted to a full seizure/arrest, a higher standard would apply. Under either the fourth amendment or North Carolina law, there would have to be probable cause to make the arrest. Gerstein v. Pugh, 420 U.S. 103, 111 (1975); Simons v. Montgomery County Police Officers, 762 F.2d 30, 33 (4th Cir.1985), cert. denied, 474 U.S. (1986); Myrick v. Cooley, 371 S.E.2d 492, 495 (N.C.App.1988). 1 The Appellee clearly had probable cause to arrest the Appellant for "disorderly conduct" under North Carolina law. See N.C.Gen.Stat. § 14-288.4(a)(4)(a) (Michie Supp.1991). Therefore, regardless of the type of seizure involved, 2 the Appellee's actions, as a matter of law, did not constitute a false arrest or an unlawful seizure.
The second issue addressed by the district court was the plaintiffAppellant's claim of excessive force under Section 1983 and his claim of assault and battery under state law. The lower court held:
As to plaintiff's contentions that defendant hit him twice "very hard" with a flashlight, these too are not sufficiently supported to withstand summary judgment. Each of the individuals who have submitted affidavits in connection with this motion--including several whom plaintiff testified at his deposition saw him being hit--deny that they saw defendant strike plaintiff.... Other than plaintiff's unsupported allegations, there is no admissible evidence whatsoever that defendant intentionally hit plaintiff. Even the unsworn affidavits already excluded make no...
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Ross v. Cecil Cnty. Dep't of Soc. Servs.
...cross examination to evaluate biases and to establish the ability of witnesses to observe what occurred.” Moore v. Morton, 958 F.2d 368 (table), 1992 WL 46292, *4 n. 3 (4th Cir.1992). 27.See also Nat'l Labor Coll., Inc. v. Hillier Grp. Architecture N.J., Inc., 739 F.Supp.2d 821, 827 (D.Md.2......
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Ross v. Cecil Cnty. Dep't of Soc. Servs.
...cross examination to evaluate biases and to establish the ability of witnesses to observe what occurred." Moore v. Morton, 958 F.2d 368 (table), 1992 WL 46292, *4 n.3 (4th Cir. 1992). 27. See also Nat'1 Labor Coll., Inc. v. Hillier Grp. Architecture N.J., Inc., 739 F. Supp. 2d 821, 827 (D. ......