Wilkerson v. Hester, CIV.1:99CV130.

• Decision Date: 30 August 2000
• Docket Number: No. CIV.1:99CV130.,CIV.1:99CV130.
• Citation: 114 F.Supp.2d 446
• Court: U.S. District Court — Western District of North Carolina
• Parties: Sterling WILKERSON, Plaintiff, v. Eric HESTER, individually, in his capacity as a law enforcement officer and as an agent of Defendant Sheriff Daniel Good; Sheriff Daniel Good, in his official capacity; and Travelers Casualty and Surety Company, bonding agent for Sheriff Daniel Good; Defendants.

114 F.Supp.2d 446

Sterling WILKERSON, Plaintiff, v. Eric HESTER, individually, in his capacity as a law enforcement officer and as an agent of Defendant Sheriff Daniel Good; Sheriff Daniel Good, in his official capacity; and Travelers Casualty and Surety Company, bonding agent for Sheriff Daniel Good; Defendants.

No. CIV.1:99CV130.

United States District Court, W.D. North Carolina, Asheville Division.

August 30, 2000.

Michael Lee King, King & Stockton, Salisbury, NC, for plaintiff.

Scott D. MacLatchie, Womble, Carlyle, Sandridge & Rice, Charlotte, NC, for defendants.

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THIS MATTER is before the Court on the Memorandum and Recommendation of United States Magistrate Judge Max O. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, the undersigned referred the Defendants' motion for summary judgment to the Magistrate Judge for a recommendation as to disposition. Because the Memorandum and Recommendation was filed approximately two weeks prior to the beginning of the trial calendar, Plaintiff's counsel was notified that the time within which to file objections was shortened and any objections to the Memorandum and Recommendation should be filed no later than Sunday, August 27, 2000, via the drop box for filing at the United States Courthouse in Charlotte, North Carolina. Counsel did not file objections within this time; however, objections were transmitted via facsimile to the chambers of the undersigned between approximately 4:00 p.m. and 4:30 p.m. on August 28, 2000. Despite an abundance of caution, the undersigned has conducted a de novo review of the recommendation and finds that the Defendants' motion for summary judgment should be granted. 28 U.S.C. § 636(b); Fed. R.Civ.P. 72.

I. STANDARD OF REVIEW

Summary judgment is appropriate if there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party, here the Plaintiff. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, the Defendants as the moving parties have the initial burden to show a lack of evidence to support Plaintiff's case. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If this showing is made, the burden then shifts to the Plaintiff who must convince the Court that a triable issue does exist. Id. Such an issue will be shown "if the evidence is such that a reasonable jury could return a verdict for the [Plaintiff]." Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id. Moreover, in considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the Plaintiff, as the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. STATEMENT OF FACTS

This action stems from the Plaintiff's warrantless arrest on July 4, 1996, after being stopped while driving his father's truck in Spindale, North Carolina. The Plaintiff testified at his deposition that after having been stopped by the officers, he got out of the truck and the arresting officers told him to put his hands on the vehicle and his face down on the hood. Exhibit C, Excerpts from the Deposition of Sterling Wilkerson, attached to Defendants' Motion for Summary Judgment, at 17. As he did so, he heard someone call his name, causing him to turn his head to look up. Id., at 17-18. When Plaintiff turned his head, the officer moved Plaintiff's leg out from under him and pushed him to the ground, causing his right hand to skid across the asphalt road. Id. One of the officers put his knee on the Plaintiff's back and handcuffed him. Id. After being handcuffed, he was lifted to his feet. Id., at 28. Other than the officer's knee being placed on Plaintiff's back, he was not hit, kicked or struck. Id. Plaintiff testified there was no physical abuse used and he could not recall any verbal abuse. Id.

Plaintiff was taken to the local detention facility at which point he noticed that one of the fingers on his right hand was swollen and painful. Id. However, Plaintiff did not report this to anyone at the jail because he felt nothing would be done. Id., at 36.

The Plaintiff also testified that, in his opinion, he was stopped on the day in question because Robin Spence had called the local police to complain that he was speeding and "running everybody off the road." Id., at 65. According to the amended complaint, Spence was a deputy clerk of court who disliked the Plaintiff due to past dealings with him over child support payments. Plaintiff also testified that he could not say that his arrest occurred because he is African American. Id. He did admit, however, that he may have been speeding prior to the arrest. Exhibit 3, Excerpts from the Deposition of Sterling Wilkerson, attached to Plaintiff's Response to Defendants' Motion for Summary Judgment, at 58. At the time of the stop, he asked one of the officers why he had been pulled over but could not recall the officer's answer. Id., at 68. The officers found a machete in the truck. Id.

It does not appear that the officer involved in the incident was deposed; however, he has provided an affidavit. Defendant Hester was a Deputy Sheriff for Rutherford County at the time of the incident. Exhibit A, Declaration of Eric Hester, attached to Defendant's Motion, at ¶ 1. He was in a marked patrol car traveling westbound on the Highway 74 By-Pass when he saw a white pick-up truck in his rearview mirror which was approaching him at a high rate of speed and was darting in and out of traffic. Id., at ¶ 's 2, 4. When the truck got closer to the patrol car, it rapidly slowed down and came alongside of the patrol car. Id., at ¶ 5. Hester looked over at the occupant and noticed that he was not wearing his seatbelt. Id. Hester determined to follow the truck due to his observations. Id., ¶ 6. At about the same time, another vehicle approached him with its lights flashing and the driver was pointing at the Plaintiff as if to alert the officer to him. Id. Hester activated his overhead blue lights, but the truck did not stop. Id. He saw the driver reach down towards the floorboard and then Hester turned on his siren. Id. The driver still did not yield, causing Hester to notify his dispatcher; however, about 3/10 of a mile later, the truck did stop after turning onto a side road. Id.

Hester approached the Plaintiff and asked for his license, but Plaintiff said he did not have it with him. Id., at ¶ 7. Hester asked Plaintiff's name and inquired as to why he had been driving so recklessly. Id. However, Plaintiff replied that he had not done anything wrong. Id.

As alleged in the Plaintiff's complaint, Hester testified that at about this time Robin Spence pulled up behind the officer's car. Id., at ¶ 8. Hester left the Plaintiff and walked back to her vehicle at which point she advised Hester that she had earlier alerted him to the Plaintiff by flashing her lights because the Plaintiff had passed her speeding at about 100 miles per hour and had almost run her off the road. Id. Spence told Hester that she knew the Plaintiff because she had collected child support from him in the past. Id.

Hester then went back to the Plaintiff's truck and told him to exit the vehicle. Id., at ¶ 9. Although Plaintiff refused to do so at first, he did comply; Hester then told him to place his hands on the hood of the truck. Id. Hester then advised the Plaintiff he was under arrest because Hester concluded that Plaintiff, who had been cursing at the officer, had become disorderly. Id. When he told the Plaintiff to put his hands behind his back, Plaintiff did not do so; instead Hester grabbed his right wrist to bring it behind his back for handcuffing. Id. At that point, the Plaintiff pulled away from the officer who then pushed him to the ground by tripping his leg with the officer's foot. Id. According to Hester, he kept hold of the Plaintiff's right hand throughout this procedure. Id. Officer Thrift of the Rutherfordton Police Department arrived at the scene at this time and assisted in handcuffing the Plaintiff and then lifting him onto his feet. Id., at ¶ 10. After the arrest, the officers found a machete behind the console of the truck. Id., at ¶ 12.

Plaintiff was charged with resisting an officer, failure to stop, disorderly conduct, reckless driving, failure to wear a seat belt and carrying a concealed weapon. In the state district court, Plaintiff was acquitted of resisting an officer and failure to stop and the district attorney dismissed the charge of disorderly conduct. In superior court, Plaintiff was acquitted of reckless driving and failure to wear a seat belt, but convicted of carrying a concealed weapon. Although no date is provided concerning his acquittals, he was sentenced for carrying a concealed weapon on December 4, 1997. On January 5, 1998, his motion for appropriate relief was denied.

Defendants have provided an affidavit from John E. Davis, M.D., who treated the Plaintiff on July 5, 1996, the day after the incident at issue. Exhibit D, Declaration of John E. Davis, M.D., attached to Defendants' Motion. Dr. Davis averred that during or shortly after treating the Plaintiff on that date he created a medical record, a copy of which is attached to the affidavit. Id., at ¶ 2. That record has been maintained by his office in the regular course of business and the information contained in the record was provided to the doctor by the Plaintiff. Id. Dr. Davis stated that if called to testify, he would do so in accordance with his affidavit and the medical record. Id., at ¶ 1.

The medical record discloses...