Opinion
C. A. 2:22-cv-00739-DCN-MHC
05-24-2024
Altony Brooks, Plaintiff, v. Scott Allan Zorn and John Doe, Defendants.
AMENDED ORDER AND REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Before the Court are three motions. The first is a Motion to Reopen Discovery by Plaintiff Altony Brooks (“Plaintiff”). ECF No. 110. The other two are Motions for Summary Judgment filed by Defendants Scott Allan Zorn and John Doe (collectively, “Defendants”). ECF Nos. 72, 73. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motions, Plaintiff filed Responses in Opposition. ECF Nos. 101, 123, 127. Defendant John Doe filed a Reply. ECF No. 105. Plaintiff filed a Sur Reply. ECF No. 109. The matter is ripe for review.
In his Motion, Plaintiff also requests an additional 90 days for service of process on Defendant John Doe.
Although Plaintiff's first Response is docketed as specifically opposing Defendant John Doe's Motion, the Response also presents arguments opposing Defendant Zorn's Motion. See ECF No. 101. Nevertheless, Plaintiff filed a Declaration, ECF No. 117, asserting that he never received a copy of Defendant Zorn's Motion for Summary Judgment. The Court directed Defendant Zorn to re-serve the Motion for Summary Judgment and gave Plaintiff additional time to file a further Response to Defendant Zorn's Motion. ECF No. 119. Zorn re-served his Motion, ECF No. 121, and Plaintiff filed two supplemental Responses in Opposition to Defendant Zorn's Motion for Summary Judgment, ECF Nos. 123 and 127.
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 Civil Rule 73.02(B)(2)(e) (D.S.C.).
Because the Motions are dispositive, this Report and Recommendation is entered for review by the District Judge.
I. BACKGROUND
Plaintiff, proceeding pro se and in forma pauperis, filed a verified Complaint in March 2022. ECF No. 1. The allegations in his Complaint arise out of a March 3, 2020 traffic stop and Plaintiff's subsequent arrest. Based on the evidence before the Court, the facts are set forth as follows.
A pro se litigant's verified complaint or other verified submission must be considered as an affidavit and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. See Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021) (noting a verified complaint is “the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge”); see also Valind v. Wright, No. 05-C-0702, 2007 WL 9734863, at *5-6 (E.D. Wis. Jan. 30, 2007) (finding Plaintiff's verified response should be considered an affidavit for summary judgment purposes and rejecting Defendant's arguments to the contrary).
The facts set forth herein are taken from the evidence before the Court, including incident reports, dash camera video footage, body worn camera footage, and Plaintiff's verified filings. This evidence is viewed in the light most favorable to Plaintiff, as the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To the extent that the videos clearly depict the events at issue, they will prevail over contrary versions of the events submitted by either side. “[W]hen a video ‘quite clearly contradicts the version of the story told by [the plaintiff] . . . so that no reasonable jury could believe it, a court should not adopt [the plaintiff's] version of the facts for purposes of ruling on a motion for summary judgment.'” Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (alterations in original) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). However, this principle does not permit a court to “reject a plaintiff's account on summary judgment” if the “documentary evidence, such as a video,” merely “offers some support for a governmental officer's version of events.” Id. (emphasis in original).
A. Factual Background
On March 3, 2020, Defendant Zorn, an officer with the Saint Stephen Police Department, was on patrol when he observed a white Ford Crown Victoria without a license plate parked at a convenience store. See ECF No. 73-2 at 1. He then saw an unknown black male getting into the vehicle. ECF No. 73-2 at 1. Defendant Zorn pulled into the median and waited to see if the vehicle came in his direction, which it did a few moments later. See ECF No. 73-2 at 1; see also ECF No. 73-3, Dash camera footage from Defendant Zorn's patrol car, Camera 0 (“Dash Camera 0”) at 0:43.
When the vehicle passed Defendant Zorn, he confirmed that it did not have a license plate displayed, as required by state law. ECF No. 73-2 at 1. Defendant Zorn then got behind the vehicle and activated his blue lights to perform a traffic stop. ECF No. 73-2 at 1; see also Dash Camera 0 at 0:53. The driver of the vehicle (Plaintiff) pulled over and came to a complete stop in the driveway of a house at 100 Palmetto Avenue. ECF No. 73-2 at 1; see also Dash Camera 0 at 1:23.
Plaintiff immediately got out of the car before Defendant Zorn had exited his patrol car. ECF No. 73-2 at 1; Dash Camera 0 at 1:26. According to Defendant Zorn's incident report, when Plaintiff got out of his vehicle, he recognized Plaintiff. See ECF No. 73-2 at 1. Defendant Zorn indicated that Plaintiff had a history of allegedly being very agitated with law enforcement. ECF No. 73-2 at 1.
Once Defendant Zorn's patrol car had come to a stop, Defendant Zorn asked Plaintiff to get back into his car two times, which Plaintiff did not do. Dash Camera 0 at 1:26-1:32. Defendant Zorn then asked Plaintiff to get back into his car a few more times and can be seen coming into the dash camera's frame with his taser drawn and pointed directly at Plaintiff. Dash Camera 0 at 1:26-1:42. Once Defendant Zorn is outside his vehicle, little to no audio of the interaction between Plaintiff and Defendant Zorn is picked up by the dash camera. See Dash Camera 0.
According to Defendant Zorn's incident report, he exited his patrol car with his taser drawn and instructed Plaintiff to get back into his car for Defendant Zorn's own safety. ECF No. 73-2 at 1; Dash Camera 0 at 1:26.
Plaintiff advised Defendant Zorn that he had a license and insurance on the vehicle. ECF No. 1 at 5; see Dash Camera 0 at 1:32-2:00. Plaintiff further told Defendant Zorn that “this is a traffic stop and for his safety he would prefer being in front of the cameras due to black males being shot and killed by Caucasian officers.” ECF No. 1 at 5. According to Plaintiff, Defendant Zorn then became irate and demanded Plaintiff to get in the car. ECF No. 1 at 5. Plaintiff ultimately complied with the order to get in the vehicle, and he sat in the vehicle with both legs on the ground. ECF No. 1 at 5; Dash Camera 0 at 1:45. Plaintiff maintains that Defendant Zorn then yelled at Plaintiff to put his feet in the vehicle. ECF No. 1 at 5; see Dash Camera 0 at 1:45-2:43. On the dash camera footage, Defendant Zorn attempts to close the vehicle's door two different times, but Plaintiff's feet are in the way. Dash Camera 0 at 1:57-2:43. Plaintiff stated at some point during this encounter that “he would get on the ground because he fears for his life.” ECF No. 1 at 5. Defendant Zorn can be seen motioning to the ground; however, Plaintiff did not get on the ground at that time. Dash Camera 0 at 2:22-2:43.
Defendant Zorn returned to his patrol car, while Plaintiff remained seated in his car with the door open and his feet on the ground. Dash Camera 0 at 2:42-3:04. At this point, Defendant Zorn's body camera was activated, and both Plaintiff and Defendant Zorn's voices can be clearly heard. ECF No. 73-4, Zorn Body Camera Footage, Camera 1 (“Body Camera 1”). Defendant Zorn approached Plaintiff's vehicle again, this time asking Plaintiff to get out of his car and place his hands on the trunk of his vehicle. Dash Camera 0 at 3:04-3:30; Body Camera 1 at:05-:25. Plaintiff replied he was not going to do that because he had done nothing wrong and had not violated the law. Body Camera 1 at:08-:30.
Defendant Zorn advised Plaintiff he was not complying and moved closer to Plaintiff. Body Camera 1 at:23-39. Plaintiff then asked Defendant Zorn not to touch him. Body Camera 1 at:23-39. Defendant Zorn touched Plaintiff on the arm, and then Plaintiff began to walk toward the steps of a house nearby, stating that it was his uncle's house. Body Camera 1 at:35-:49. Defendant Zorn instructed Plaintiff to “get back over here” and warned Plaintiff that he was “about to get tased” for failing to comply with his orders. Body Camera 1 at:35-:52. Plaintiff stopped his advance to the nearby house, walked back to his car, and leaned on the hood of the car with his hands visible. Body Camera 1 at:35-:52. Plaintiff again stated that he was not violating the law, and Defendant Zorn advised Plaintiff that he was violating the law by refusing to comply with Defendant Zorn's orders. See ECF No. 73-2 at 2; Body Camera 1 at 0:50 - 1:30.
According to Defendant Zorn, Plaintiff also kept taking his hands in and out of his pockets, and Defendant Zorn “was in fear of [Plaintiff's] actions or what he might do.” ECF No. 73-2 at 2.
Defendant Zorn repeatedly ordered Plaintiff to put his hands on the hood of the car. Body Camera 1 at:45-1:00. Plaintiff, while leaning on the hood of his car with his hands visible, asked why he needed to do that, and told Defendant Zorn to “just write the ticket” so he can go. Body Camera 1 at:50-1:00; ECF No. 1 at 5. Defendant Zorn responded “no,” and continued to order Plaintiff to put his hands on the hood of the car “because [Defendant Zorn] is asking him to.” Body Camera 1 at:55-1:07. Plaintiff and Defendant Zorn continued to argue, and Defendant Zorn eventually stated that “now you're not complying,” and moved closer to Plaintiff. Body Camera 1 at 1:07-1:34.
At this point, Defendant Zorn holstered his taser, moved closer to Plaintiff, and started reaching for Plaintiff's hands. Dash Camera 0 at 4:18-4:35; Body Camera 1 at 1:20-1:34. Defendant Zorn did not state why he was reaching for Plaintiff's hands or otherwise announce that Plaintiff was under arrest, although Defendant Zorn appeared to take out his handcuffs to place Plaintiff under arrest. Dash Camera 0 at 4:18-4:35; Body Camera 1 at 1:20-1:34. While Defendant Zorn was reaching for Plaintiff, Plaintiff repeatedly told Defendant Zorn “don't touch me,” and evaded Defendant Zorn's hands. Dash Camera 0 at 4:18-4:35; Body Camera 1 at 1:20-1:34. Plaintiff's hands were up and clearly visible while Plaintiff repeatedly told Defendant Zorn not to touch him and asserted that Defendant Zorn was “violating” him. Body Camera 1 at 1:20-1:34. Plaintiff stated, “Money, don't touch me,” to which Defendant Zorn replied, “Oh, now you're threatening?” and immediately drew his taser and shot it at Plaintiff. Body Camera 1 at 1:30-1:36. When Defendant Zorn drew and shot his taser, Plaintiff was in the middle of repeating that Defendant Zorn was “violating” him, and Plaintiff's hands were out and visible with palms facing Defendant Zorn. Body Camera 1 at 1:30-1:36. The taser deployment was ineffective because Plaintiff was wearing a thick leather jacket that the taser prongs did not penetrate. See ECF No. 73-2 at 2; Body Camera 1 at 1:36.
Plaintiff pulled the taser prongs off his jacket and then fled, running down the street into a wooded area before circling around and returning to his vehicle. See ECF No. 1 at 5, ¶ 4; ECF No. 73-2 at 2; Body Camera 1 at 1:35-2:35. Defendant Zorn pursued and gave Plaintiff at least five commands to stop fleeing and directed him to “get on the ground” at least three times. Body Camera 1 at 2:19-2:45. Plaintiff refused to comply. Body Camera 1 at 2:19-2:45; ECF No. 73-2 at 2.
Plaintiff then got into his car and fled from Defendant Zorn, driving away from the location of the traffic stop and continuing down the street. See ECF No. 1 at 5, ¶ 4; ECF No. 73-2 at 2; Body Camera 1 at 2:46-3:10. Defendant Zorn activated his blue lights and sirens and began following Plaintiff. See ECF No. 73-5, camera footage from Zorn's patrol car, Camera 2 (“Dash Camera 2”) at 6:28-11:37; ECF No. 73-2 at 2. Plaintiff refused to pull over and continued driving for approximately one and a half miles. Dash Camera 2 at 6:38-11:27; ECF No. 73-2 at 2. According to Plaintiff, he drove toward the Saint Stephen Police Department to speak to the mayor. ECF No. 1 at 5. When he did not see the mayor's car, Plaintiff drove to his father's house. ECF No. 1 at 5.
Plaintiff came to a complete stop in the driveway of his father's house. See ECF No. 1 at 5, ¶¶ 4-5; ECF No. 73-2 at 2; Body Camera 1 at 8:20; Dash Camera 2 at 11:37. Defendant Zorn exited his patrol car upon arriving at the location and immediately drew his gun and instructed Plaintiff to get on the ground. See Body Camera 1 at 8:20-8:45; Dash Camera 2 at 11:38. Defendant Zorn also stated that Plaintiff was under arrest and directed him not to enter the house. ECF No. 73-2 at 2; Body Camera 1 at 8:50-8:55; Dash Camera 2 at 10:54. Plaintiff ignored Defendant Zorn's commands and went inside the house. See ECF No. 73-2 at 2; Body Camera 1 at 9:15; Dash Camera 2 11:50-12:20.
Plaintiff returned from inside the house and then stood behind his father in the doorway, refusing to come out. ECF No. 73-2 at 2; Body Camera 1 at 9:15. Defendant Zorn stated to Plaintiff's father that he was not going to shoot his gun at them, and subsequently holstered his service weapon. ECF No. 73-2 at 2; Body Camera 1 at 9:34-10:00. Defendant Zorn advised Plaintiff's father that Plaintiff needed to come out of the house because he was under arrest and explained that Plaintiff had violated the law and was refusing to comply with his directions. Body Camera 1 at 9:34 - 11:25.
At this time, an officer from the Monks Corner Police Department and a deputy from the Berkeley County Sheriff's Office arrived on the scene for assistance. ECF No. 73-2 at 2; Dash Camera 2 at 14:40-16:00; Body Camera 1 at 12:14, 12:50. Defendant Zorn then followed the other two officers as they approached the front porch of the house where Plaintiff was standing behind his father. ECF No. 73-2 at 2; Body Camera 1 at 12:50-13:25; Dash Camera 2 at 16:07-16:54. The officers informed Plaintiff that he was under arrest multiple times and made repeated commands for him to exit the house, but Plaintiff refused. ECF No. 73-2 at 2; Body Camera 1 at 13:18-13:40. With Defendant Zorn standing behind them, the other two officers were able to move Plaintiff's father from the doorway and take Plaintiff into custody. ECF No. 73-2 at 2; Body Camera 1 at 13:40-13:49; Dash Camera 2 at 16:07-17:30. One of the officers on scene, Deputy McWethy, handcuffed and searched Plaintiff and then placed him in Defendant Zorn's patrol car.ECF No. 73-2 at 2; see also ECF No. 73-6, camera footage from Zorn's patrol car (“Rear Camera 3”) at 19:15-20:00; ECF No. 1 at 6, ¶ 7; Body Camera 1 at 14:04-15:33.
Defendant Zorn's body camera is knocked from his chest during this physical exchange, but the patrol car's camera captures the entire incident.
Deputy McWethy appears to be from the Berkley County Sheriff's Office. See ECF No. 73-2 at 2.
After advising Plaintiff of his Miranda rights, Defendant Zorn departed the location and transported Plaintiff to the Hill-Finklea Detention Center. ECF No. 73-2 at 2; Body Camera 1 at 27:50-28:04; Rear Camera 3 at 30:50-30:58. Plaintiff was charged with resisting arrest and failing to stop for blue lights. ECF No. 73-2 at 3.
B. Procedural History
Plaintiff filed this action on November 15, 2022, pursuant to 42 U.S.C. § 1983 against the St. Stephen Police Department, St. Stephen Officer Scott Zorn, Berkeley County Sheriff's Office, and Berkeley County Deputy “John Doe” alleging that Defendants violated his rights and used excessive force on him while he was being arrested. ECF No. 1.
Plaintiff asserted claims against Defendant Zorn for false arrest, assault and battery, abuse of power, excessive force, and false imprisonment. He claimed that the Saint Stephen Police Office was liable for gross negligence in violation of S.C. Code Ann. § 15-78-60 and that Berkeley County Sheriff's Office was liable for assault and battery and abuse of power. He claimed that Defendant John Doe was liable for excessive use of force, false arrest, and false imprisonment. ECF No. 1 at 6-7. He requested monetary damages (six million dollars). ECF No. 1 at 7.
On May 22, 2023, the undersigned issued a Report and Recommendation (ECF No. 60) to dismiss the St. Stephens Police Department and Berkeley County Sheriff's Office in full and to dismiss the official capacity claims against Defendant John Doe. That Report and Recommendation was adopted on June 20, 2023, leaving only Plaintiff's claims against Defendants John Doe and Zorn in their individual capacities. See ECF No. 64.
Plaintiff only sued Defendant Zorn in his individual capacity. ECF No. 1 at 2.
Also on May 22, 2023, this Court issued a scheduling order setting the deadlines for discovery on August 21, 2023, and for dispositive motions on September 20, 2023. ECF No. 62. Defendants filed their Motions for Summary Judgment on September 20, 2023. ECF Nos. 72, 73. On November 27, 2023, Plaintiff filed his Motion to Reopen Discovery. ECF No. 110. Plaintiff also filed miscellaneous motions after Defendants filed their Motions for Summary Judgment. See ECF No. 114 at 4 (detailing Plaintiff's motions).
II. LEGAL STANDARDS
A. Summary Judgment
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Nos. 72, 73. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”).
However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
B. Motion to Reopen Discovery
Rule 16 and Rule 56 of the Federal Rules of Civil Procedure and Local Rule 6.01 (D.S.C.) are relevant to Plaintiff's Motion to Reopen Discovery.
District Courts have a wide latitude in controlling discovery. Ardrey v. United Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986). A motion to reopen discovery may involve a change to this Court's scheduling order pursuant to Rule 16. Rule 16 provides that a scheduling order may be modified “only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4).
Rule 56(d) of the Federal Rules of Civil Procedure permits a court to defer or deny a motion for summary judgment if the nonmovant shows “by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” See Fed.R.Civ.P. 56(d). Courts ask whether “the nonmovant has sufficiently identified the information sought by discovery, the reasons the information has not yet been obtained, and the materiality of the information to its opposition to the summary judgment motion.” Phillips v. Gen. Motors Corp., 911 F.2d 724, 1990 WL 117981, at *5 (4th Cir. 1990) (unpublished table decision).
Local Rule 6.01 provides that motions for extensions of time to complete discovery “will be granted only in unusual cases and upon a showing that the parties have diligently pursued discovery during the originally specified period.” Local Rule 6.01 (D.S.C.).
III. DISCUSSION
Plaintiff asserts various federal and state law claims against Defendants Zorn and John Doe. Against Defendant Zorn, Plaintiff asserts a § 1983 claim for excessive use of force in violation of the Fourth Amendment, a § 1983 claim for false arrest and imprisonment in violation of the Eighth Amendment, and state law claims for false arrest, assault, battery, and abuse of power. ECF No. 1 at 6. Plaintiff claims that Defendant John Doe is liable for excessive use of force in violation of the Fourth Amendment, and false arrest/false imprisonment in violation of the Eighth Amendment. ECF No. 1 at 6-7.
Additionally, Plaintiff moves to reopen discovery for purposes of identifying Defendant John Doe and additional time to serve process on him. See ECF No. 110.
For the reasons that follow, Plaintiff's Motion to Reopen Discovery is denied. The undersigned recommends that Defendant Zorn's Motion for Summary Judgment be granted in part and denied in part, that Defendant John Doe's Motion for Summary Judgment be granted, and that John Doe be dismissed from the action.
A. Plaintiff's Motion to Reopen Discovery
Plaintiff seeks to reopen discovery for purposes of identifying and serving process on Defendant John Doe. See ECF No. 110 at 3-4.
Defendants argue that Plaintiff's Motion to Reopen Discovery is untimely. ECF Nos. 112, 116. They further argue that Plaintiff had ample opportunity to send discovery to counsel for John Doe for purposes of seeking the identity of John Doe, as counsel had appeared for the Berkeley County Sheriff's Office and John Doe as early as December 7, 2022. ECF No. 72-1 at 5. Defendants maintain that Plaintiff had three months to conduct discovery, and that Plaintiff did not serve counsel for Defendant John Doe with any discovery requests. The Court agrees with Defendants.
Counsel was the same for the Berkeley County Sheriff's Office and the John Doe deputy, who is alleged to be a Berkeley County deputy.
Here, Plaintiff did not file his Motion to Reopen Discovery until two months after Defendant John Doe filed his Motion for Summary Judgment. See ECF Nos. 72, 110. Moreover, counsel made an appearance on behalf of Defendant John Doe at the beginning of this lawsuit, filing a Motion to Dismiss and an Answer on his behalf. ECF Nos. 19, 20. Although Plaintiff argues that Defendants “obstructed” his efforts in obtaining the identity of Defendant John Doe (ECF No. 101 at 2), Plaintiff did not serve any discovery requests on counsel for Defendant John Doe seeking the identity of John Doe. ECF No. 72-1 at 5. Notably, Plaintiff actually identifies Defendant John Doe as “Tyler McWethy” in his Motion to Reopen Discovery, such that discovery does not need to be reopened for that purpose. See ECF No. 110 at 5.
Plaintiff complains that Defendant Zorn did not identify Defendant John Doe. See ECF No. 101 at 2-3; ECF No. 110 at 5. Defendant Zorn is not represented by the same counsel as Defendant John Doe, and was not alleged to be employed by the Berkeley County Sheriff's Office. There is no evidence before the Court that Defendant Zorn knew and failed to provide the identity of Defendant John Doe.
In his Response to Defendant John Doe's Motion for Summary Judgment, Plaintiff appears to contend that Defendant John Doe is “Timothy McWethy.” See ECF No. 101 at 2.
Construing Plaintiff's Motion liberally as a request for additional time to serve Defendant John Doe with process, Plaintiff has not shown good cause to do so. See Fed.R.Civ.P. 16. Once Plaintiff identified Defendant John Doe, he would need to move to amend his Complaint to include the identified individual for purposes of service of process. See Price v. Marsh, No. 2:12-cv-5442, 2013 WL 5409811, at *2 (S.D. W.Va. Sept. 25, 2013) (reviewing procedure for substituting a specific individual for a John Doe defendant). Because the deadline for amending pleadings ran on June 21, 2023 (see ECF No. 62), Plaintiff would also need leave to amend the scheduling order under Rule 16(b), which requires “good cause” for any such modification. See, e.g., Price, No. 2:12-cv-5442, 2013 WL 5409811, at *1-2. “The touchstone of ‘good cause' under Rule 16(b) is diligence. In other words, the focus of the good cause inquiry is on the diligence of the party seeking modification of the [S]cheduling [O]rder.” Id. at *2 (citation omitted); see also Local Rule 6.01 (D.S.C.).
In this instance, Plaintiff has not established good cause regarding his efforts to identify Defendant John Doe. As already noted above, counsel for John Doe made an appearance at the beginning of this lawsuit, filing a Motion to Dismiss and an Answer on John Doe's behalf. ECF Nos. 19, 20. Plaintiff generally argues he was impeded by Defendants and that he was in jail for several months, which hindered his ability to identify and serve Defendant John Doe. See ECF No. 101 at 2-3; ECF No. 110 at 5. However, a review of the docket reveals Plaintiff has been actively litigating this case since he filed it in March of 2022. See, e.g., ECF Nos. 27, 37, 40, 67. Indeed, Plaintiff has filed a myriad of motions and other miscellaneous documents that have requested improper relief, sought to add parties/claims well after the time allowed to do so, and generally complained about things unrelated to this case. See, e.g., ECF No. 114 (denying Plaintiff's motion for preliminary injunction and motion for “miscellaneous relief”). For example, one of Plaintiff's miscellaneous motions sought “Amendment of Claims” to join additional defendants (though not specifically Timothy McWethy) and assert new claims that were unrelated to those asserted in his Complaint. See ECF No. 91.
Plaintiff did not act diligently in attempting to identify Defendant John Doe, and he cannot now seek to reopen discovery and/or seek leave to amend his Complaint. See Price, No. 2:12-CV-05442, 2013 WL 5409811, at *3 (denying leave to amend complaint to identify John Doe defendant after the deadline for doing so had passed in the scheduling order, where plaintiff “was not diligent in seeking leave to amend the complaint” under Rule 16(b)). Under these circumstances, Plaintiff has not shown good cause for reopening discovery or amending his Complaint for purposes of service of process on Timothy McWethy. Fed.R.Civ.P. 16(b)(4); Local Rule 6.01 (D.S.C.). Accordingly, Plaintiff's Motion to Reopen Discovery is denied.
Nor has he shown by affidavit or declaration that he cannot otherwise present facts essential to his opposition to Defendant John Doe's Motion for Summary Judgment. See Fed.R.Civ.P. 56(d).
B. Defendant Zorn's Motion for Summary Judgment
Defendant Zorn argues summary judgment is appropriate regarding the § 1983 claims for excessive force and false arrest/false imprisonment and the state law claims for false arrest, assault, battery, and abuse of power. The Court agrees as to § 1983 claim for false arrest/imprisonment and the state law claims for false arrest and abuse of power. However, the Court disagrees regarding the § 1983 claim for excessive force and the state law claim for assault and battery.
a. Federal § 1983 claims
Plaintiff's § 1983 claims are all based on a traffic stop, which implicates the Fourth Amendment. The Fourth Amendment, which applies to the states via the Fourteenth Amendment, protects the right of the people from “unreasonable searches and seizures.” U.S. Const. amend. IV; see also Smith v. Travelpiece, 31 F.4th 878, 884 n.5 (4th Cir. 2022). “A traffic stop constitutes a ‘seizure' under the Fourth Amendment and is thus subject to a reasonableness requirement.” United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). “Because an ordinary traffic stop is more analogous to an investigative detention than a custodial arrest,” courts assess the reasonableness of a traffic stop pursuant to the two-prong standard from Terry v. Ohio, 392 U.S. 1, 19-20 (1968). United States v. Green, 740 F.3d 275, 279 (4th Cir. 2014). That is, courts consider whether (1) the officer's actions in initiating the stop were justified at their inception and (2) whether the officer's actions during the stop were “reasonably related in scope” to the basis for the stop. Id.; see also United States v. Hill, 852 F.3d 377, 381 (4th Cir. 2017).
The first prong is satisfied when the officer has probable cause to believe that a traffic violation has occurred. See United States v. Bowman, 884 F.3d 200, 209 (4th Cir. 2018); see also United States v. Sheetz, 293 F.3d 175, 183-84 (4th Cir. 2002) (noting defendant's “commission of a traffic infraction provided a basis for the stop of his car” (citing Whren, 517 U.S. at 810)). An officer's subjective intent in stopping the vehicle is irrelevant to this inquiry; rather, courts “simply ask whether ‘the circumstances, viewed objectively, justify the action.'” United States v. Palmer, 820 F.3d 640, 649 (4th Cir. 2016) (quoting Whren, 517 U.S. at 813).
The second prong “restricts the range of permissible actions that a police officer may take after initiating a traffic stop.” Id. Indeed, the officer's actions must be “sufficiently limited in [1] scope and [2] duration to satisfy the conditions of an investigative seizure.” Id. (citation omitted). Such actions that are “reasonably related in scope” to a traffic stop include “inspecting a driver's identification and license to operate a vehicle, verifying the registration of a vehicle and existing insurance coverage, and determining whether the driver is subject to outstanding warrants.” Bowman, 884 F.3d at 210. The duration of the stop cannot be prolonged, as authority for the seizure ends “when tasks tied to the traffic infraction are-or reasonably should have been-completed.” Id. (quoting Rodriguez v. United States, 575 U.S. 348, 354 (2015)); see also Illinois v. Caballes, 543 U.S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”). “In other words, to extend the detention of a motorist beyond the time necessary to accomplish a traffic stop's purpose, the authorities must either possess ‘reasonable suspicion or receive the driver's consent.'” Williams, 808 F.3d at 245-46 (citation omitted).
The Supreme Court has squarely held that no Fourth Amendment violation occurs when, during the course of a lawful traffic stop, a law enforcement officer asks the driver of the vehicle to step out of the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (“[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.”). “When police lawfully order a driver to exit his vehicle and the driver refuses, police may use reasonable force to remove the driver.” Nazario v. Gutierrez, No. 2:21CV169 (RCY), 2022 WL 3213538, at *11 (E.D. Va. Aug. 9, 2022); see also Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 901 (4th Cir. 2016) (“Noncompliance with lawful orders justifies some use of force, but the level of justified force varies based on the risks posed by the resistance.”). It logically follows that the inverse is also true: a law enforcement officer may direct a driver to get back into his vehicle if the driver has exited, and the officer may use reasonable force to accomplish this directive if the driver refuses. This all stems from the officer's right to maintain control and safety of the encounter in a reasonable manner. See Mimms, 434 U.S. at 111 (“What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.”).
Here, Defendant Zorn had probable cause to initiate the traffic stop, as it is undisputed that Plaintiff was driving a vehicle that did not have a license plate displayed. This constitutes a violation of state law. S.C. Code Ann. § 56-3-1240 (“It is unlawful to operate or drive a motor vehicle with the license plate missing”). As Defendant Zorn observed this violation, he had probable cause to initiate the traffic stop for this violation, rendering the traffic stop reasonable. See United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993) (holding that “when an officer observes a traffic offense or other unlawful conduct, he or she is justified in stopping the vehicle under the Fourth Amendment”); see also Freeland v. Simmons, No. 4:09CV01384-WOB, 2012 WL 258105, at *6 (D.S.C. Jan. 27, 2012) (finding officer had probable cause to initiate traffic stop after observing plaintiff commit traffic violation, rendering the traffic stop reasonable).
Plaintiff does not meaningfully dispute this, other than to state in a conclusory fashion that “he committed no traffic violations before being stopped by [Defendant] Zorn.” ECF No. 101 at 5.
Additionally, pursuant to Mimms, Defendant Zorn was entitled to order Plaintiff in and out of the vehicle as a matter of course from the outset. Thus, to the extent Plaintiff appears to argue he did not have to comply with Defendant Zorn's orders during the initial encounter, he is incorrect. See, e.g., Coleman v. Calvert Cnty., No. GJH-15-920, 2016 WL 5335477, at *5 (D. Md. Sept. 22, 2016) (“Pursuant to Mimms, the officers did not violate the Fourth Amendment's proscription of unreasonable searches and seizures by ordering Coleman from the truck then physically removing him upon noncompliance. The reasonableness of the officers' actions stands as a lawful continuation of the initial Terry stop.”).
Although Defendant Zorn had authority to order Plaintiff in and out of his vehicle, the range of permissible actions after that point must still be reasonably related in scope to the traffic stop itself. See Bowman, 884 F.3d at 210. Thus, for purposes of Defendant Zorn's Motion for Summary Judgment, the reasonableness of his actions during the traffic stop are at issue. Upon review of the evidence in the light most favorable to Plaintiff, including the dash camera and body camera footage of the entire traffic stop, there is a question of material fact as to whether Defendant Zorn's actions violated Plaintiff's Fourth Amendment rights.
i. Excessive Force
Plaintiff maintains that Defendant Zorn used excessive force against him. Specifically, Plaintiff asserts that Defendant Zorn's one-time use of his taser on Plaintiff constituted unreasonable and excessive force, in violation of the Fourth Amendment. ECF No. 1 at 5.
The Fourth Amendment's prohibition on unreasonable seizures includes the right to be free of “seizures effectuated by excessive force.” Schultz v. Braga, 455 F.3d 470, 476 (4th Cir. 2006). Determining whether an officer used excessive force is an objective inquiry, and courts focus on “whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). Three factors, established in Graham, generally inform this analysis: (1) “the severity of the crime”; (2) “whether the suspect posed an immediate threat to the safety of the officers or others”; and (3) “whether he is actively resisting arrest or attempting to evade arrest.” Id. at 396. “At the summary judgment stage, once we have viewed the evidence in the light most favorable to the nonmovant, the question of whether the officer's actions were reasonable is a question of pure law.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011); see also Knibbs v. Momphard, 30 F.4th 200, 214 (4th Cir. 2022), cert. denied, No. 22-8, 2022 WL 6572139 (U.S. Oct. 11, 2022).
In the context of using tasers, the Fourth Circuit has noted that deploying “a taser is a serious use of force,” as it causes “excruciating pain” and can “burn a subject's flesh.” Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016). Because deployment of a taser imposes “serious consequences” the Fourth Circuit opined in Armstrong that it “requires significant circumscription.” Id. at 903. The Fourth Circuit noted that its case law “makes clear that tasers are proportional force only when deployed in response to a situation in which a reasonable officer would perceive some immediate danger that could be mitigated by using the taser.” Id. (emphasis in original). In explaining the “risk of immediate danger,” the court stated that “[a]t bottom, ‘physical resistance' is not synonymous with ‘risk of immediate danger[,]'” and “[t]he subject of a seizure does not create such a risk [of immediate harm] simply because he is doing something that can be characterized as resistance - even when that resistance includes physically preventing an officer's manipulations of his body.” Id. at 905, 909. Further, the court recognized different levels of force and stated that while “[n]oncompliance with lawful orders justifies some use of force, . . . the level of justified force varies based on the risks posed by the resistance.” Id. at 901 (citation omitted).
Here, in considering the Graham factors and the Fourth Circuit's analysis of those factors in the context of a taser deployment in Armstrong, the undersigned finds a genuine dispute of material fact exists such that Defendant Zorn is not entitled to summary judgment. See Anderson, 477 U.S. at 248.
As to the first Graham factor, Defendant Zorn pulled Plaintiff over for not having a license plate displayed, a minor traffic violation that is a misdemeanor in South Carolina. See S.C. Code Ann. §§ 56-3-1240, -2520. Consequently, the first Graham factor weighs in Plaintiff's favor. See, e.g., Patrick v. City of Aiken, No. 1:16-CV-03496-JMC, 2019 WL 4736453, at *6 (D.S.C. Sept. 27, 2019) (finding the first Graham factor favored a Plaintiff who only committed a misdemeanor traffic offense).
The second Graham factor, whether Plaintiff threatened the safety of Defendant Zorn, also weighs in Plaintiff's favor at this stage. Upon pulling Plaintiff over, Defendant Zorn drew his taser, pointed it at Plaintiff, and instructed Plaintiff to get back in his car. Dash Camera 0 at 1:26-1:42.
In the incident report, Defendant Zorn wrote that: “[a]t this point the black male, who I now recognize as [Plaintiff], exited his vehicle prior to me getting out of my patrol car. [Plaintiff] has a history with being very agitated with law enforcement and any one in a position of authority, so for my safety I instructed [Plaintiff] multiple times, with taser drawn and pointed at him, to get back in his vehicle and he would not comply.” ECF No.73-2 at 1. While a court must focus on the information an officer had at the moment force is employed, it is unclear whether Defendant Zorn knew when he first drew the taser who Plaintiff was and what Plaintiff's alleged history was, as there is no testimony before the Court in that regard, and a reasonable conclusion could be that Defendant Zorn, while writing the incident report, was describing what he learned after the encounter. See Pizer v. City of Rock Hill, No. CV 0:20-3620-JMC-SVH, 2022 WL 22260457, at *6 (D.S.C. Mar. 4, 2022) (“In considering whether an officer used reasonable force, a court must focus on the moment that the force is employed, and upon the information the officers had when the conduct occurred.” (citations and quotation marks omitted)).
According to Plaintiff, he advised Defendant Zorn that he has a license and insurance on the vehicle. ECF No. 1 at 5; see Dash Camera 0 at 1:32-2:00. Plaintiff further told Defendant Zorn that “this is a traffic stop and for his safety he would prefer being in front of the cameras due to black males being shot and killed by Caucasian officers.” ECF No. 1 at 5. Plaintiff maintains that Defendant Zorn then became irate and demanded Plaintiff to get in the car. ECF No. 1 at 5. Plaintiff complied with the order to get in the vehicle, and he sat in the vehicle with both legs on the ground. ECF No. 1 at 5; Dash Camera 0 at 1:45. Plaintiff states that Defendant Zorn then yelled at Plaintiff to put his feet in the vehicle. ECF No. 1 at 5; see Dash Camera 0 1:45-2:43. Although there was some argument between the parties-which was not clearly picked up on the dash camera audio- Plaintiff ultimately, albeit reluctantly, obeyed the order to get back into his vehicle, and he left his feet on the pavement. ECF No. 1 at 5; Dash Camera 0 at 1:45.
Defendant Zorn returned to his patrol car, while Plaintiff sat in Plaintiff's vehicle, as instructed. Instead of issuing Plaintiff a citation for his missing license plate, Defendant Zorn activated his body camera, approached Plaintiff's vehicle again, and ordered Plaintiff to get out of the car and place his hands on the trunk of his vehicle. Dash Camera 0 at 3:04-3:30; Body Camera 1 at:05-:25. Plaintiff obeyed Defendant Zorn's command to get out of his vehicle, but stated he was not going to do “all that” because he had done nothing wrong. Body Camera 1 at:08-:30.
There is no evidence before the Court of any other law violation. See Caballes, 543 U.S. at 407 (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”).
According to Defendant Zorn's incident report, Plaintiff kept taking his hands in and out of his pockets and Defendant Zorn “was in fear of [Plaintiff's] actions or what he might do.” ECF No. 73-2 at 2. However, the video footage appears to reflect that, during the time that Defendant Zorn and Plaintiff argued over Plaintiff's compliance with Defendant Zorn's orders, Plaintiff was holding his phone (in what he says was an attempt to show his insurance information via the Geico app) and his hands are out and visible. See Body Camera 1 at:01-1:35; see also ECF No. 101 at 6.
Subsequently, Plaintiff walked toward the steps of a nearby house, but Defendant Zorn warned Plaintiff to return to his car otherwise he was going to get tased. Body Camera 1 at:35-:52. Plaintiff stopped his advance to the nearby house, walked back to his car, and leaned on the hood of the car with his hands visible. Body Camera 1 at:35-:52.
Plaintiff and Defendant Zorn continued to argue over Plaintiff putting his hands on the hood of the car, with Plaintiff asking Defendant Zorn to “just write the ticket” and Defendant Zorn replying “no.” Body Camera 1 at:50-1:07; ECF No. 1 at 5. Defendant Zorn eventually stated that Plaintiff was “not complying” and holstered his taser while he reached for Plaintiff's hands. While Defendant Zorn reached for Plaintiff, Plaintiff's hands were up and visible while Plaintiff repeatedly asked Defendant Zorn not to touch him and asserted that Defendant Zorn was “violating.” Body Camera 1 at 1:20-1:34. In the last moment before Defendant Zorn drew and deployed the taser, Plaintiff stated “Money, don't touch me,” to which Defendant Zorn replied “Oh, now you're threatening?” and immediately drew his taser and shot it at Plaintiff. Body Camera 1 at 1:30-1:36.
Although Plaintiff was argumentative throughout the encounter, Plaintiff does not appear to threaten Defendant Zorn verbally or otherwise act in a manner that suggested he was about to turn violent. In the video evidence, Plaintiff's hands are either visible or up with palms facing toward Defendant Zorn. Even at the last moment before deployment of the taser-where Defendant Zorn stated “Oh, now you're threatening?” and then drew and shot his taser-Plaintiff was in the middle of repeating that Defendant Zorn was “violating” him, and Plaintiff's hands were out and visible with palms facing Defendant Zorn. Body Camera 1 at 1:30-1:36. Viewing all the evidence and the inferences therefrom in the light most favorable to Plaintiff, there is a genuine dispute of material fact as to whether Plaintiff posed an immediate threat to Defendant Zorn's safety.
There is also a genuine dispute of material fact as to the third Graham factor-whether Plaintiff resisted or evaded seizure. The Fourth Circuit has given examples of “minimally risky physical resistance” that do not generally justify use of serious force. Armstrong, 810 F.3d at 90405. For example:
Refusing to enter an out-of-state officer's police car until a local officer is summoned is not a sufficient threat to the arresting officer to justify physically striking the arrestee. See Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995). Nor is an arrestee pulling her arm away when a police officer attempts to grab her without explanation. See Smith, 781 F.3d at 103. An arrestee “yank[ing] his arm away” from a police officer, similarly, does not justify “being tackled.” Goodson v. City of Corpus Christi, 202 F.3d 730, 733, 740 (5th Cir. 2000).
Unsurprisingly, then, other circuits have held that taser use can constitute excessive force when used in response to non-violent resistance. The subject of a seizure “refus[ing] to release his arms for handcuffing,” for example, “is no[t] evidence suggesting that [he] violently resisted the officers' attempts to handcuff him.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (emphasis supplied). Such a refusal, therefore, does not justify deploying a taser when the subject “[i]s
unarmed and there [i]s little risk [he] could access a weapon,” according to the Seventh Circuit. Id.
The en banc Ninth Circuit has drawn a similar conclusion: A suspect “actively resist[s] arrest [when] she refuse[s] to get out of her car when instructed to do so and stiffen[s] her body and clutche[s] her steering wheel to frustrate the officers' efforts to remove her from her car,” but when she also “d[oes] not evade arrest by flight, and no other exigent circumstances exist[ ] at the time [,] ... [a] reasonable fact-finder could conclude ... that the officers' use of [a taser] was unreasonable and therefore constitutionally excessive.” Mattos v. Agarano, 661 F.3d 433, 446 (9th Cir. 2011) (en banc). The Eighth Circuit agrees as well. See Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009) (refusal to terminate a telephone call after police ordered an arrestee to do so does not justify tasing even though the police officer was concerned that the arrestee could use glass tumblers near her feet as weapons or could kick the officer).Id. The significant through-line for these cases, and Fourth Circuit precedent, is that “physical resistance” does not automatically implicate a “risk of immediate danger.” See id. at 905 (“In all of these cases, we declined to equate conduct that a police officer characterized as resistance with an objective threat to safety entitling the officer to escalate force.”).
Here, the video evidence suggests that when Defendant Zorn eventually stated that Plaintiff was “not complying” and holstered his taser while he reached for Plaintiff's hands, Plaintiff resisted Defendant Zorn's advances by backing up, putting his hands in the air, and asking Defendant Zorn not to touch him. Thus, it appears Plaintiff's resistance was passive by refusing to give his hands to Defendant Zorn. See Livingston v. Kehagias, 803 Fed.Appx. 673, 684 (4th Cir. 2020) (“Livingston's only resistance was of the passive variety, in the form of refusing to give up his hands for handcuffs.”). Such resistance does not generally create an immediate safety risk. See Armstrong, 810 F.3d at 909 (“The subject of a seizure does not create such a risk simply because he is doing something that can be characterized as resistance-even when that resistance includes physically preventing an officer's manipulations of his body.”).
Moreover, although Defendant Zorn appeared to take out his handcuffs to place Plaintiff under arrest, there is no indication on the video that Defendant Zorn ever told Plaintiff he was under arrest. Dash Camera 0 at 4:18-4:35; Body Camera 1 at 1:20-1:34. Up until that point, Defendant Zorn had ordered Plaintiff to put his hands on the hood of the car “because [Defendant Zorn] is asking him to,” not because he told Plaintiff that he was under arrest or was otherwise being detained upon suspicion of anything outside of the minor traffic violation. Body Camera 1 at:55-1:07. At this point, Plaintiff had questioned Defendant Zorn why he was being asked to do these things, had asked Defendant Zorn to “just write the ticket” so he can go (to which Defendant Zorn had replied “no”), and had not attempted to flee or fight Defendant Zorn.
Plaintiff did not attempt to fight or flee from Defendant Zorn until after the taser was deployed.
Nevertheless, Defendant Zorn argues “the evidence reflects that Plaintiff was acting in an erratic manner and was actively resisting or evading being restrained or taken into custody. The evidence further shows that Plaintiff failed to comply with Zorn's commands given to him in the driveway where the traffic stop occurred, resulting in him being tased by Zorn.” ECF No. 73-1 at 8.
To be sure, Plaintiff complained, protested, and argued with Defendant Zorn the entire time. However, Plaintiff obeyed Defendant Zorn's orders to (1) get back in his vehicle, (2) exit his vehicle, and (3) to stop walking toward the house and return to his vehicle. Although Plaintiff did not obey the orders to place his hands on the hood or trunk of the car, this noncompliance did not necessarily warrant use of a taser. See Armstrong, 810 F.3d at 904 (“Even noncompliance with police directives and nonviolent physical resistance do not necessarily create ‘a continuing threat to the officers' safety.'”).
This is especially true where, as here, Defendant Zorn never clearly articulated why he was ordering Plaintiff around (instead of writing a ticket after Plaintiff obeyed Defendant Zorn's first command to get back into the car), or that he was arresting Plaintiff because Plaintiff failed to put his hands on the hood of his car. See Pizer v. City of Rock Hill, No. CV 0:20-3620-JMC-SVH, 2022 WL 22260457, at *8 (D.S.C. Mar. 4, 2022) (“If Plaintiff's resistance is considered passive, significant case law would support her position, particularly where, here, Hernandez failed to issue an order to her or make clear she was being arrested.”); Folks v. Ellison, No. CV 1:21-105-MGL-SVH, 2022 WL 16700276, at *8 (D.S.C. Aug. 19, 2022) (“Prior to the moment that Plaintiff alleges he was first beaten by Ellison, Plaintiff testified he, at most, jerked his hand away from Ellison and attempted unsuccessfully to get away after Ellison attempted to handcuff him without informing him that he was under arrest or the charges for which he was being arrested.” (emphasis added)), report and recommendation adopted, No. CV 1:21-105-MGL-SVH, 2022 WL 12350526 (D.S.C. Oct. 20, 2022); Smith v. Ray, 781 F.3d 95, 103 (4th Cir. 2015) (“Nor could a reasonable officer believe that Smith's initial act of pulling her arm away when Ray grabbed her without warning or explanation justified Ray's decision to throw her down, jam his leg into her back, and wrench her arm behind her.” (emphasis added)).
Under these circumstances, a genuine dispute of material fact exists as to whether Defendant Zorn's use of force was excessive in this instance, such that the undersigned cannot find that Defendant Zorn's decision to deploy his taser was reasonable as a matter of law. See Green, 740 F.3d at 279 (noting courts consider whether (1) the officer's actions in initiating the stop were justified at their inception and (2) whether the officer's actions during the stop were “reasonably related in scope” to the basis for the stop); see also Caballes, 543 U.S. at 407 (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”). Consequently, the undersigned recommends summary judgment be denied as to this claim.
ii. False arrest and False imprisonment
Plaintiff asserts a § 1983 false arrest/false imprisonment against Defendant Zorn. This claim fails.
“Section 1983 actions premised on malicious prosecution, false arrest, and/or false imprisonment are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment.” Phillips v. Campbell, No. 6:20-CV-04447-DCC-KFM, 2021 WL 11485284, at *3 (D.S.C. Apr. 5, 2021). Thus, at their core, Plaintiff's claims are an allegation that his Fourth Amendment rights have been violated. See Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (noting false arrest and false imprisonment claims “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”).
In his Complaint, Plaintiff asserted a § 1983 claim for false arrest and imprisonment in violation of the Eighth Amendment of the U.S. Constitution. ECF No. 1 at 6, ¶ 9. The Eighth Amendment is inapplicable, as Plaintiff was not a convicted prisoner at the time of the traffic stop. See Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977); Graham, 490 U.S. at 394-95.
To maintain a claim for false arrest or imprisonment under § 1983, a plaintiff must demonstrate that he was arrested without probable cause. Sowers v. City of Charlotte, 659 Fed.Appx. 738, 739 (4th Cir. 2016). “A traffic stop is reasonable, and therefore not a violation of the Fourth Amendment, if it is justified by probable cause or reasonable suspicion.” United States v. Johnson, 734 F.3d 270, 275 (4th Cir. 2013) (citing United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008)). This is an objective standard. Id. Thus, this standard is met “when officers observe a traffic violation, regardless of their true, subjective motives for stopping the vehicle.” Id. (citing Whren, 517 U.S. at 810-13). Similarly, the Fourth Amendment is not violated by the warrantless arrest of an individual in a public place supported by probable cause. See Maryland v. Pringle, 540 U.S. 366, 370 (2003).
“‘Probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998) (citation omitted). Accordingly, in assessing the existence of probable cause, courts examine “the totality of the circumstances known to the officer at the time of the arrest.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002). Probable cause is an “objective standard of probability that reasonable and prudent persons apply in everyday life” that requires more than bare suspicion, but less than the evidence necessary to convict. Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017) (quoting Gray, 137 F.3d at 769). “In South Carolina, the issue of probable cause is a question of fact and ordinarily one for the jury.” Wortman v. Spartanburg, 425 S.E.2d 18, 20 (S.C. 1992) (emphasis added).
Here, Defendant Zorn was justified in initiating the traffic stop because there was probable cause that Plaintiff had committed a traffic violation. As already noted above, it is undisputed that Plaintiff was driving a vehicle that did not have a license plate displayed. This constitutes a violation of state law. S.C. Code Ann. § 56-3-1240 (“It is unlawful to operate or drive a motor vehicle with the license plate missing”). As Defendant Zorn observed this violation, he had probable cause to initiate the traffic stop for this violation, rendering the traffic stop reasonable.
Furthermore, Defendant Zorn had probable cause to arrest Plaintiff because there is no genuine issue of fact as to whether Defendant Zorn had sufficiently reasonable information to believe that Plaintiff was committing an offense. See Gray, 137 F.3d at 769. It is undisputed that after fleeing from the location of the traffic stop, Plaintiff failed to yield for Defendant Zorn's blue lights and continued traveling down the road without pulling over for approximately one and a half miles. It is further undisputed that when Plaintiff did finally pull over, he stopped at his father's house where he ran inside and refused Defendant Zorn's and the other two officers' commands to come out of the house because he was under arrest. Failure of a motorist to stop as directed by law enforcement and resisting arrest are violations of state law. See S.C. Code Ann. § 56-5-750 (providing for the criminal offense of failing to stop when signaled by a law enforcement vehicle by means of a siren or flashing light); S.C. Code Ann. § 16-9-320(A) (providing for the criminal offense of resisting arrest).
In sum, Plaintiff has not put forth any evidence from which a reasonable jury could find that Defendant Zorn did not have probable cause to perform the traffic stop or subsequently arrest Plaintiff. Accordingly, Plaintiff's § 1983 claim for false arrest or imprisonment fails as a matter of law.
Although the existence of probable cause is a question of fact that is ordinarily decided by a jury, where, as here, the evidence supports only the conclusion that probable cause existed, the issue can be decided as a matter of law. See Harkness v. City of Anderson, S.C., No. C.A. 8:05-1019-HMH, 2005 WL 2777574, at *3 (D.S.C. Oct. 25, 2005) (concluding that the evidence supported only the conclusion that the defendants had probable cause to make the arrest, thus denying the plaintiff's false arrest claim even though the existence of probable cause is generally a question of fact); Iacobucci v. Town of Bonneau, No. CV 2:18-0152-DCN-BM, 2019 WL 5874210, at *3 (D.S.C. May 29, 2019) (agreeing with the defendants that there was no genuine issue of fact as to whether the defendant officer had probable cause to arrest the plaintiff, and that the defendants were therefore entitled to summary judgment on the false arrest claim), report and recommendation adopted, No. 2:18-CV-00152-DCN-BM, 2019 WL 4686433 (D.S.C. Sept. 26, 2019); see also Wortman, 425 S.E.2d at 20 (“Summary judgment should be granted only where it is perfectly clear that no genuine issue of material fact exists and inquiry into facts is not desirable to clarify application of the law.”).
b. State law claims
Plaintiff's Complaint purports to assert state law claims against Defendant Zorn for false arrest, assault, battery, and abuse of power. Apart from the assault and battery claim, these claims fail for many of the reasons discussed above with respect to Plaintiff's § 1983 claims.
i. False arrest
Plaintiff alleges that Zorn is liable for false arrest for arresting him without probable cause. ECF No. 1 at 6, ¶ 9. To prevail on a claim for false arrest or imprisonment, Plaintiff must establish: “(1) the defendant restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was unlawful.” Law v. S.C. Dep't of Corr., 629 S.E.2d 642, 651 (S.C. 2006). “The fundamental issue in determining the lawfulness of an arrest is whether there was probable cause to make the arrest.” Id.
Here, because Defendant Zorn had probable cause for the arrest, the restraint was not unlawful. Thus, for the reasons already noted above with regard to Plaintiff's § 1983 claim for false arrest/imprisonment, such a claim fails. See Escalante v. Anderson Cnty. Sheriff's Dep't, No. 8:15-CV-00177-MGL-JDA, 2016 WL 4411521, at *5 (D.S.C. July 29, 2016) (finding a defendant entitled to summary judgment on state law false arrest/imprisonment claim where there was probable cause for the plaintiff's arrest), report and recommendation adopted, No. CV 8:15-177-MGL, 2016 WL 4367206 (D.S.C. Aug. 16, 2016), aff'd, 698 Fed.Appx. 754 (4th Cir. 2017); Harkness v. City of Anderson, S.C., No. C.A. 8:05-1019-HMH, 2005 WL 2777574, at *3 (D.S.C. Oct. 25, 2005) (finding same).
ii. Assault and battery
Plaintiff asserts state law claims for assault and battery against Defendant Zorn for his deployment of a taser against Plaintiff. ECF No. 1 at 6.
Under South Carolina law, “an assault occurs when a person who has been placed in reasonable fear of bodily harm by the conduct of the defendant, and a battery is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of degree.” Jones by Robinson v. Winn-Dixie Greenville, Inc., 456 S.E.2d 429, 432 (S.C. Ct. App. 1995). It is well settled that “[a]lthough a law enforcement officer is privileged to use lawful force, he is nevertheless liable for assault if he uses force greater than is reasonably necessary under the circumstances.” Moody v. Ferguson, 732 F.Supp. 627, 632 (D.S.C. 1989).
Because there are material factual disputes regarding the circumstances of the encounter between Plaintiff and Defendant Zorn and the reasonableness of the Defendant Zorn's use of a taser, summary judgment would be inappropriate on the assault and battery claims. Therefore, the Court recommends denying summary judgment as to the assault and battery claims.
iii. Abuse of power
Plaintiff asserts a state law claim for “abuse of power” for “arresting Plaintiff and assaulting Plaintiff without provocation or probable cause.” ECF No. 1 at 6, ¶ 9. This claim fails.
As an initial matter, “Plaintiff has not presented, nor has the court found, any South Carolina cases recognizing a cause of action for abuse of power.” Padilla v. Morgan, No. 4:14-CV-04045-RMG, 2015 WL 5996181, at *9 (D.S.C. Oct. 13, 2015). While the liberal pleading requirements of Rule 8 only require a short and plain statement of the claim, Plaintiff must offer more detail than merely stating Defendant Zorn is liable for abuse of power for “arresting Plaintiff and assaulting Plaintiff without provocation or probable cause.” ECF No. 1 at 6; see Fed.R.Civ.P. 8; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting defendants must have “fair notice of what the claim is and the grounds upon which it rests” (cleaned up) (internal quotation marks omitted)). The undersigned cannot divine a cause of action from Plaintiff's filings, nor should the Court attempt to advocate on Plaintiff's behalf. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (“District judges are not mind readers. Even in the case of pro se litigants, they cannot be expected to construct full blown claims from sentence fragments, which is essentially what [Plaintiff] is seeking here.”).
To the extent Plaintiff is attempting to bring a claim for abuse of process, that claim fails. The two essential elements of an abuse of process claim are: (1) “an ulterior purpose” and (2) “a willful act in the use of the process not proper in the conduct of the proceeding.” Argoe v. Three Rivers Behav. Ctr. & Psychiatric Sols., 697 S.E.2d 551, 556 (S.C. 2010). “Some definite act or threat not authorized by the process or aimed at an object not legitimate in the use of the process is required.” Hainer v. Am. Med. Int'l, Inc., 492 S.E.2d 103, 107 (S.C. 1997).
Plaintiff has failed to direct the Court to any evidence to support a claim for abuse of process. See ECF No. 101 (citing no record evidence). Instead, he relies on conclusory allegations that are insufficient to overcome summary judgment. Accordingly, the Motion for Summary Judgment should be granted with respect to Plaintiff's abuse of power/process claim. See Anderson, 477 U.S. at 248 (noting “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial” (citation and internal quotation marks omitted)).
In sum, the undersigned recommends that Defendant Zorn's Motion for Summary Judgment be denied as to the excessive force and assault and battery claims but granted as to the remaining claims alleged against Defendant Zorn.
C. Defendant John Doe's Motion for Summary Judgment.
Defendant John Doe moves for summary judgment because (1) he was never properly served or identified, and (2) Plaintiff failed to establish a claim against him. See ECF No. 72-1 at 4-7.
1. John Doe should be dismissed.
John Doe suits are permissible only against “real, but unidentified, defendants.” Schiff v. Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The designation of a John Doe defendant “is generally not favored in federal courts; it is appropriate only when the identity of the alleged defendant is not known at the time the complaint is filed and the plaintiff is likely to be able to identify the defendant after further discovery.” Chidi Njoku v. Unknown Special Unit Staff, 217 F.3d 840, 2000 WL 903896, at *1 (4th Cir. 2000) (unpublished table decision). When a defendant is labeled as a John Doe, he must “be identified by the time the issues are adjudicated on their merits,” because “judgments may not be entered against unnamed defendants.” Randolph v. Allen, No. 2:22-cv-00315, 2023 WL 4207482, at *1 (S.D. W.Va. June 27, 2023); see also Chidi Njoku, 217 F.3d 840, 2000 WL 903896, at *1 (stating that “there is no basis to permit a judgment against an unidentified John Doe defendant to be sustained”); Myers v. City of Charleston, No. 2:19-cv-757, 2021 WL 925326, at *10 (S.D. W.Va. Mar. 10, 2021).
Moreover, “Rule 4(m) requires the dismissal of defendants who remain unserved ninety days after the filing of a complaint unless the plaintiff shows good cause.” Attkisson, 925 F.3d at 627 (internal quotation marks omitted). Local Civil Rule 4.01 (D.S.C.) further requires that if a party is not served “within 90 days after the pleading is filed, the party filing the pleading shall, within the same period, file a status report advising the court of the identity of the party not served and why service has not been effected.”
Here, Defendant John Doe should be dismissed from the action. As already noted above, Plaintiff has not shown good cause for reopening discovery or extending the time frame for him to amend his complaint to identify and serve Defendant John Doe with process. Fed.R.Civ.P. 16(b)(4); Local Rule 6.01 (D.S.C.). Plaintiff failed to serve Defendant John Doe within ninety days of filing the Complaint, and Plaintiff did not file a status report informing the Court of Defendant John Doe's identity and service within ninety days of filing his Complaint as required by Local Civil Rule 4.01 (D.S.C.). For all of the reasons discussed above, Plaintiff has not established good cause for reopening discovery, amending the scheduling order, and/or extending the service deadline. See Attkisson, 925 F.3d at 627-28 (affirming dismissal of unserved John Doe defendants); Price, No. 2:12-CV-05442, 2013 WL 5409811, at *5-6 (dismissing John Doe defendant under Rule 4(m) where “Trooper John Doe was never served, and [the plaintiff] never requested an extension of time from the court to serve him” in the year since filing the complaint).
Plaintiff argues that a Randy Sweatman signed for the service of process as an employee of the Berkley County Sheriff's Office, such that Defendant John Doe (who Plaintiff identifies as Timothy McWethy) was properly served and the case should be allowed to proceed. See ECF No. 101 at 2; see also ECF No. 18. Plaintiff cites to no case law that supports a John Doe defendant can be served this way, and the undersigned is unaware of any. See Price, No. 2:12-cv-5442, 2013 WL 5409811, at *3 (noting that the Federal Rules of Civil Procedure provide that the title of the complaint must name all the parties, the summons must name the parties, and a defendant must be timely served).
Accordingly, Defendant John Doe should be dismissed. See Myers, No. 2:19-CV-00757, 2021 WL 925326, at *10 (“Plaintiffs here have had more than ample time to discover, disclose the identities of, and serve the 25 John Does designated in their complaint. In fact, the [c]ourt's own recitation of the facts names multiple officers on the scene on September 12, and yet, Plaintiffs have not served any additional defendants pursuant to Rule 4[.] Because these 25 John Does have not been served and cannot have a judgment entered against them, they must be dismissed from this action.”); see also Sadler v. Pella Corp., 146 F.Supp.3d 734, 759 n.13 (D.S.C. 2015) (noting “it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss” (citation omitted)); Jackson v. Reilly, No. CIV.A. 9:07-0997-RBH, 2008 WL 706861, at *8 (D.S.C. Mar. 14, 2008) (“Plaintiff will not be permitted to avoid summary judgment by amending his complaint after the motion for summary judgment has been filed.”).
2. Plaintiff failed to establish any claim against John Doe.
Alternatively, the undersigned finds that summary judgment should be granted in John Doe's favor because Plaintiff has failed to establish a claim against John Doe. In his Complaint, Plaintiff asserts two claims against John Doe for violation the Fourth Amendment: (1) that John Doe “is liable for excessive use of force,” and (2) that John Doe “is liable for false arrest [and] false imprisonment.” ECF No. 1 at 7. Plaintiff alleges that after he walked into his home, Berkeley County Sheriff's Office officers arrived. Id. at 5 ¶ 5. He alleges that John Doe and Zorn stated they were coming into the house and did not need a search warrant. Id. at 6 ¶ 6. Plaintiff further alleges that when he exited the house and came onto the porch, “Berkeley County Sheriff officers grabbed Plaintiff by the arm and snatched him off the porch and forcefully took him and put him in the police cruiser.” Id. at 6 ¶ 7.
In his Complaint, Plaintiff asserted a § 1983 claim for false arrest and imprisonment in violation of the Eighth Amendment of the U.S. Constitution. ECF No. 1 at 7. However, the Eighth Amendment is inapplicable, as Plaintiff was not a convicted prisoner at the time of the traffic stop. See Ingraham, 430 U.S. at 671 n.40; Graham, 490 U.S. at 394-95. Moreover, false arrest and false imprisonment claims “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment.” Rogers, 249 F.3d at 294.
The record evidence does not support Plaintiff's claims against John Doe. The videos show that after an officer from the Monks Corner Police Department and a deputy from the Berkeley County Sheriff's Office arrived on the scene, they approached the front porch of the house where Plaintiff was standing behind his father, informed Plaintiff that he was under arrest multiple times, and made repeated commands for him to exit the house, but Plaintiff refused. ECF No. 73-2 at 2;
Dash Camera 2 at 14:40-17:30; Body Camera 1 at 12:50-15:33. The two officers were able to move Plaintiff's father from the doorway and take Plaintiff into custody. Id. Deputy McWethy (whom Plaintiff now indicates is Defendant John Doe) handcuffed and searched Plaintiff and then placed him in Defendant Zorn's patrol car. ECF No. 73-2 at 2; see also ECF No. 73-6 at 19:1520:00; Body Camera 1 at 14:04-15:33.
As explained above, the undisputed evidence establishes that the officers had probable cause to arrest Plaintiff. See S.C. Code Ann. § 56-5-750 (providing for the criminal offense of failing to stop when signaled by a law enforcement vehicle by means of a siren or flashing light); S.C. Code Ann. § 16-9-320(A) (providing for the criminal offense of resisting arrest); Gray, 137 F.3d at 769. Because Plaintiff has not put forth any evidence from which a reasonable jury could find that Defendant John Doe did not have probable cause to arrest Plaintiff, Plaintiff's § 1983 claim for false arrest or imprisonment against Defendant John Doe fails as a matter of law.
Moreover, no reasonable jury could find that Defendant John Doe used excessive force in effectuating the arrest. Upon consideration of the evidence in the record, the Graham factors, and the Fourth Amendment reasonableness test, the undersigned finds that the actions of both the Moncks Corner police officer and the Berkeley County sheriff's deputy, including Defendant John Doe, were objectively reasonable in light of the facts and circumstances confronting them. See Graham, 490 U.S. at 396-97. Because Plaintiff has not put forth any evidence from which a reasonable jury could find that Defendant John Doe used excessive force against Plaintiff, Plaintiff's § 1983 claim for excessive force against Defendant John Doe fails as a matter of law.
IV. CONCLUSION
For the reasons set forth above, it is ORDERED that Plaintiff's Motion to Reopen Discovery (ECF No. 110) be denied.
It is RECOMMENDED that Defendant John Doe's Motion for Summary Judgment (ECF No. 72) be GRANTED and that Defendant John Doe be DISMISSED from this action.
It is further RECOMMENDED that Defendant Zorn's Motion for Summary Judgment (ECF No. 73) be GRANTED in part and DENIED in part. Specifically, the Motion should be GRANTED as to Plaintiff's § 1983 claim for false arrest/imprisonment and his state law claims for false arrest and abuse of power/process. The Motion should be DENIED as to the § 1983 excessive force claim and the state law claim for assault and battery.
IT IS SO RECOMMENDED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).