Opinion
CIVIL 2:22-cv-01953-BHH-MGB
06-28-2023
Twain Grissett, Plaintiff, v. Lt. Flemming, Officer Owens, Officer Young, Sgt. Terry Mack, and Cpl. Harrell, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a pretrial detainee appearing pro se, seeks relief pursuant to 42 U.S.C. § 1983. Before the Court is Defendants' Motion for Summary Judgment. (Dkt. No. 60.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends granting Defendants' motion.
BACKGROUND
This action arises from an altercation that occurred on May 4, 2022, while Plaintiff was being booked into the Florence County Detention Center (“FCDC”). In his unverified Complaint, Plaintiff alleges that while he was “getting booked” into FCDC, Defendant Lieutenant Flemming “searched” him. (Dkt. No. 1 at 10.) As Lt. Flemming reached into Plaintiff's pocket, Plaintiff felt uncomfortable. He “made a quick reaction and jerked away” while in handcuffs. (Id.) Lt. Flemming then “grabbed [Plaintiff] and slammed [his] head into the booking countertop several times.” (Id.) Plaintiff alleges that Defendants Officer Owens, Sgt. Terry Mack, Officer Young, and Cpl. Harrell “witnessed th[is] incident.” (Id. at 11.)
“A complaint is ‘verified' if it is ‘signed, sworn, and submitted under penalty of perjury.'” Goodman v. Diggs, 986 F.3d 493, 495 (4th Cir. 2021) (quoting James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020)).
Plaintiff then “felt blood run down [his] face [and] from [his] eye.” (Id. at 10.) He does not remember anything that followed until he “woke up in the restraint chair.” (Id.) Plaintiff alleges that while he was in the restraint chair, Defendant Officer Owens “was walking on [his] feet back and forth trying to break [his] toes.” (Id.) Plaintiff alleges that Defendants Lt. Flemming, Cpl. Harrell, and Officer Young witnessed this conduct by Officer Owens. (Id. at 11.) Plaintiff alleges his head was bandaged and he was sent to the hospital for treatment of his injuries. (Id. at 10.)
Plaintiff filed this action on June 21, 2022. (Dkt. No. 1.) On December 22, 2022, Defendants filed a Motion for Summary Judgment. (Dkt. No. 60.) Plaintiff filed a response in opposition on January 26, 2023 (Dkt. No. 63), and Defendants did not file a reply brief. Defendants' motion is ready for review.
STANDARDS
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A reasonable jury could not return a verdict for the nonmoving party when “videotape [evidence] quite clearly contradicts the version of the story told by [the nonmoving party].” Scott v. Harris, 550 U.S. 372, 378 (2007).
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “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.
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
Defendants argue that Plaintiff's claims against them should be dismissed because: (1) Defendants are entitled to immunity under the Eleventh Amendment to the extent they are being sued in their official capacities; (2) Plaintiff has failed to state facts sufficient to state any § 1983 claims; and (3) Defendants are entitled to qualified immunity. (Dkt. No. 60.) The undersigned considers these arguments, below.
A. Eleventh Amendment Immunity
Defendants assert that Plaintiff's claims against them in their official capacities are barred pursuant to Eleventh Amendment. (Dkt. No. 60 at 16-17.) The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Further, Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity,” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself,” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Therefore, Eleventh Amendment immunity protects state agencies and state officials sued in their official capacity from liability for monetary damages under 42 U.S.C. § 1983. Id.
“A county detention center is under the control of the county sheriff's office, and as such is considered a state agency.” Jones v. Spartanburg Cnty. Det. Ctr., No. 4:20-cv-2570-DCC-TER, 2020 WL 5665540, at *2 (D.S.C. Aug. 3, 2020), adopted sub nom. Jones v. Doe, No. 4:20-CV-02570-DCC, 2020 WL 5653267 (D.S.C. Sept. 23, 2020). Here, there is no dispute that Defendants are employees of FCDC. Thus, any claims brought against them in their official capacities as employees of FCDC should be dismissed as a matter of law. See, e.g., Barfield v. Cunningham, No. 8:20-cv-02388-DCN-JDA, 2021 WL 1526508, at *5 n.6 (D.S.C. Mar. 15, 2021) (noting the Florence County Sherriff is charged with the administration of the FCDC and reasoning the employees of the FCDC are ultimately entitled to Eleventh Amendment immunity), adopted by, 2021 WL 1526486 (D.S.C. Apr. 5, 2021); Jones, 2020 WL 5665540, at *2 (as employees of county detention center, “defendants would be state officers, not county employees, and would be entitled to Eleventh Amendment immunity when sued in official capacity only in federal court”).
B. § 1983 Claims
Upon review, the Complaint alleges § 1983 claims against Defendants Lt. Flemming and Officer Owens for excessive force and bystander liability and against Defendants Officer Young, Sgt. Terry Mack, and Cpl Harrell for bystander liability. (Dkt. No. 1.) Defendants argue that Plaintiff has failed to state facts sufficient to support any § 1983 claims. (Dkt. No. 60 at 6-16.) Defendants further argue they are entitled to qualified immunity. (Id. at 17-18.)
Before considering the merits of Plaintiff's claims, the undersigned first summarizes the relevant evidence in the record.
1. Evidence
In support of their Motion for Summary Judgment, Defendants have submitted videos recorded by: (1) a security camera in the booking area of FCDC; and (2) the body-worn camera of third-party Officer Joshua Ausmus. (Dkt. No. 60-1 at 8.) Only the body camera footage includes sound. Defendants have also submitted affidavits from Officer Ausmus and Defendants Officer Dontae Owens, Lt. Robin Flemming, Sergeant Terry Mack, Officer Brad Young, and Corporal Shequidra Harrell. (Dkt. Nos. 60-1; 60-2; 60-4; 60-5; 60-6.) Defendants have also submitted the entirety of Plaintiff's deposition testimony, his FCDC disciplinary records, and his medical records related to the incident at issue. (Dkt. Nos. 60-1; 60-2 at 10-57; 60-3.) Plaintiff has submitted grievances about the incident at issue, and certain medical records. (Dkt. No. 631.)
a. Affidavit Testimony
In his affidavit, Officer Ausmus avers that on May 4, 2022, he was “assigned to transport the Plaintiff to the FCDC, following his arrest for numerous charges, including but not limited to possessing drugs, possessing a stolen vehicle, evading police and attempted carjacking.” (Dkt. No. 60-1 at 3.) According to Officer Ausmus, he “was to remain with the Plaintiff while FCDC personnel completed the booking process, including paperwork and searches.” (Id.) Officer Ausmus describes the incident at issue as follows:
That FCDC employee Lt. Robin Flemming began the process of filling out booking paperwork regarding the Plaintiff, but upon beginning her pat down
search of Plaintiff's pants pockets, Plaintiff became loud, disruptive and began actively resisting the search by grabbing her hand. He then began kicking myself and Lt. Flemming. This behavior is a safety concern for all involved and both I and Lt. Flemming gave Plaintiff several directives to calm down and to cease his behavior. He refused. That despite our directives to cease his behavior and to submit to the search, Plaintiff continued to resist the search and used his legs as leverage to attempt to remove himself from the grip of myself and Lt. Flemming. That when Plaintiff began resisting Lt. Flemming's pat down search, I assisted by attempting to subdue Plaintiff from behind and also attempted to restrain Plaintiff against the booking counter. That Plaintiff continued to resist violently, which ultimately resulted in myself, Plaintiff and Lt. Flemming losing balance and falling to the floor. That when Plaintiff began to resist Lt. Flemming made a radio call for assistance. That due to Plaintiffs refusal to cease his loud, disruptive and violent behavior, assistance did not arrive before Plaintiff, myself and Lt. Flemming fell to the floor.
That upon the arrival of assistance, Plaintiff was removed from the floor to one restraint chair and then another. That during this time I continued to observe Plaintiff continue his loud, disruptive behavior. That I also witnessed FCDC medical personnel assist Plaintiff with what appeared to have a cut on his forehead. That upon Plaintiff calming down I then began the process of taking him back to my vehicle to transfer him to a local hospital for evaluation. That upon arriving to my vehicle and securing Plaintiff in the back seat, it became apparent that my vehicle would not start. That I then radioed FPD dispatch to assign another officer to pick up the Plaintiff and take him for evaluation at the hospital. That contrary to Plaintiff's claims, at no time, during or after the incident did Plaintiff lose consciousness.(Id. at 3-4.)
Defendant Lt. Flemming's affidavit echoes Officer Ausmus's version of events. She explains that Plaintiff was “removed from one restraint chair to another due to his active resistance of the chair's restraints. The chair he was moved to was newer and had more secure restraints.” (Dkt. No. 602 at 4.) Lt. Flemming further avers that “due to the impact of falling to the floor, I was also treated by FCDC medical personnel for injury following the incident.” (Id.)
In their affidavits, Defendant Officer Owens and Officer Young aver that they “responded to a call over the FCDC radio network from Lt. Robin Flemming for backup in the booking area.” (Dkt. Nos. 60-4 at 3; 60-5 at 3.) Both officers aver they “assisted other FCDC officers in moving the Plaintiff from the floor to a restraint chair pursuant to FCDC policies and procedures.” (Id.) Officer Owens denies using “excessive force against the Plaintiff, which would include walking or stomping on his feet.” (Dkt. No. 60-4 at 4.) Officer Young likewise avers that he did not “witness Plaintiff being assaulted or being the victim of excessive use of force.” (Dkt. No. 60-5 at 4.) Defendants Corporal Harrell and Terry Mack aver that while they were on duty at FCDC on May 4, 2022, they do not recall witnessing “the incident or responding to the call for assistance from Lt. Robin Flemming.” (Dkt. Nos. 60-6 at 2-3; 60-7 at 2-3.)
b. Plaintiff's Deposition Testimony
In his deposition, Plaintiff testifies that as Lt. Flemming searched him, “she had got a little too close,” and so Plaintiff “made a sudden move.” (Dkt. No. 60-3 at 6.) Plaintiff claims that he “wasn't disorderly or nothing.” (Id.) According to Plaintiff, Lt. Flemming slung him to the floor, and he “woke up” with his right eye “bloodied up.” (Id.) Plaintiff testifies that during the incident with Flemming, “somebody [came] over and pushed my head . . . to the table.... [A]nd I blacked out after she pushed me into the table.” (Id.) He indicates that Defendant Flemming and another officer “pushed” him into the table. (Id.)
Plaintiff testifies that he “woke up in a restraint chair, and that's when I remember somebody was stepping on my foot.” (Id.) According to Plaintiff, “I think he was stepping on my foot, was trying to get me up, to make sure that I . . . wasn't dead. I guess he tried to get me back conscious, trying to bring me back conscious.” (Id.) Plaintiff states that once he “got conscious,” he told the officer to “stop stomping on my feet.” Plaintiff claims that at that point, the officer was stomping on his feet to be “cruel.” (Id. at 7.) According to Plaintiff, Officer Owens was “the one that's stepping on my feet.” (Id.)
c. Video Footage
Soundless video footage from a security camera shows that Plaintiff began to jerk away as Defendant Lt. Flemming conducted her body search. Officer Ausmus then places a hand on Plaintiff's back and eventually grabs Plaintiff's handcuffed hands and pulls them back. (5:45) Plaintiff then turns his body toward Lt. Flemming. (5:55) At that point, Lt. Flemming grabs Plaintiff by the neck. Plaintiff then kicks at Lt. Flemming, she lets go of his neck, and Plaintiff wraps one leg around her. Officer Ausmus then pushes Plaintiff toward the counter, while Lt. Flemming holds onto Plaintiff's lower body. Plaintiff can be seen talking while Ausmus has his head pinned on the counter. Throughout this episode, Lt. Flemming is mainly grabbing Plaintiff by the waist while Officer Ausmus holds onto Plaintiff by his neck and his back. Plaintiff begins to push away from the counter more forcefully, with his legs wrapped around Lt. Flemming. At that point, Officer Ausmus pushes Plaintiff's head against the counter, while attempting to regain control over him. (6:24.) Plaintiff again pushes up off the counter and turns his head toward Lt. Flemming, with his leg still wrapped around her. Lt. Flemming then grabs him by the neck and pushes his head towards the counter. Seconds later, as Plaintiff continues to push back, Officer Ausmus pulls Plaintiff away from the counter. Plaintiff and Lt. Flemming fall on the ground, with Plaintiff's legs wrapped tightly around Lt. Flemming. More officers quickly come to assist, and Plaintiff is eventually lifted up and placed in a restraint chair.
Several officers can be seen placing Plaintiff in the chair and attempting to secure the restraints. The video shows that during this time, Plaintiff has a sock on one foot and his other foot is bare. Plaintiff is kicking his feet while the officers move around him. The video shows an officer standing in front of Plaintiff and stepping directly onto his sock covered foot while attempting to secure Plaintiff's leg to the chair. (8:13.) The officer appears to keep his foot on Plaintiff's foot for approximately 17 seconds, releasing his foot once Plaintiff's leg is somewhat secure. (8:30.) This officer can then be seen attempting to step on Plaintiff's other foot in order to secure Plaintiff's other leg. (8:45.) He is not successful, and when Plaintiff continues to jerk his leg away, several officers lift Plaintiff's chair back. The officers then handcuff Plaintiff's feet to the restraint chair. An officer can be seen examining Plaintiff's face and he appears to be bleeding from the side of his face. Plaintiff is eventually transferred to a different restraint chair. The video footage in the record does not show any other officers stepping on Plaintiff's toes at any time.
As noted above, Officer Ausmus's body camera has sound. It indicates that Plaintiff was talking and conscious throughout the incident at issue.
d. Medical Records
Records from the McCleod Regional Medical Center document Plaintiff's visit to the emergency department following the incident on May 4, 2022. (Dkt. No. 60-2 at 29.) The physician note states that Plaintiff arrived “with a chief complaint of sustaining a laceration to his left upper face. Patient denied any LOC[,] any severe headache[,] neck stiffness[.] [P]atient was very angry very hostile very belligerent ” (Id.) The medical records do not mention any issues with Plaintiff's toes and feet. Rather, notes from the physical exam document Plaintiff's musculoskeletal system as normal; “no injury or deformity.” (Id.) The physician note documents a “laceration repair procedure,” stating:
After profuse irrigation and exploration, the laceration was repaired with sterile skin adhesive. There was no evidence of nerve, vessel, tendon injury or foreign body.... There was excellent skin approximation and cosmetic result without complication. Pt did not allow me to finish gluing the edges completely becoming more aggressive and resistant to following my rest to finish closing the laceration.(Id. at 30 (verbatim).) Plaintiff was discharged that same day. (Id. at 34.)
2. Excessive Force and Bystander Liability
“[C]laims of post-arrest excessive force against an arrestee or pre-trial detainee . . . are governed by the Due Process Clause of the Fourteenth Amendment, which prohibits before conviction the use of excessive force that amounts to punishment.” Sawyer v. Asbury, 537 Fed. App'x. 283, 290 (4th Cir. 2013) (quotation omitted). To prevail on a Fourteenth Amendment excessive force claim, a “pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015). “In determining whether the force was objectively unreasonable, a court considers the evidence ‘from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.'” Duff v. Potter, 665 Fed. App'x. 242, 2016 WL 6518876, at *2 (4th Cir. Nov. 3, 2016) (quoting Kingsley, 576 U.S. at 397).
In determining whether an officer was acting objectively unreasonably, a court may consider many factors including the amount of force used relative to the need for force; “the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Id. (citing Kingsley, 576 U.S. at 397). “Because the standard is an objective one, the court is not concerned with the officers' motivation or intent.” Id. (citation omitted). Whether the force was objectively reasonable must be viewed in “full context,” because segmenting the events in analysis “misses the forest for the trees.” Id. (quoting Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015)).
The Fourth Circuit “recognizes a cause of action for bystander liability ‘premised on a law officer's duty to uphold the law and protect the public from illegal acts, regardless of who commits them.'” Stevenson v. City of Seat Pleasant, Maryland, 743 F.3d 411, 416-17 (4th Cir. 2014) (quoting Randall v. Prince George's Cty., Maryland, 302 F.3d 188, 203 (4th Cir. 2002)). “[A]n officer may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Randall, 302 F.3d at 204. Plaintiff must prove a violation of civil rights as a prerequisite to establishing a bystander liability claim. Willis v. Oakes, 493 F.Supp.2d 776, 784 (W.D. Va. 2007).
3. Analysis of Excessive Force and Bystander Liability Claims Arising From Defendant Lt. Flemming's Conduct
Here, the undersigned first considers Plaintiff's claim that Defendant Lt. Flemming used excessive force against him during the booking process on May 4, 2022. As noted above, he also alleges bystander claims against Defendants Officer Owens, Sgt. Terry Mack, Officer Young, and Cpl. Harrell for “witness[ing] the incident of Lt. Flemming slamming my head into the counter.” (Dkt. No. 1 at 11.)
When applied to the evidence in this case, the Kingsley factors indicate that Lt. Flemming's actions were rationally related to the legitimate government objectives of protecting her safety and maintaining order in the FCDC, and they were not excessive for those purposes. See Kingsley, 576 U.S. at 398 (Supreme Court precedent establishes that “a pretrial detainee can prevail [on excessive force claim] by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose”).
First, an appropriate relationship existed between the need for the use of force and the amount of force used. Id. at 397. In the video footage, the only times Plaintiff's head makes contact with the counter is when Officer Ausmus and Lt. Flemming are attempting to restrain Plaintiff while he is forcefully pushing against them and has one or both legs wrapped around Lt. Flemming. Even while handcuffed, the video shows Plaintiff still poses a danger to Lt. Flemming by wrapping one or both legs around her and refusing to let go. The video shows that as Officer Ausmus moves Plaintiff away from the counter, Plaintiff wraps his legs around Lt. Flemming more tightly and brings her crashing down to the floor with him, injuring Lt. Flemming's shoulder in the process. Once on the ground, Lt. Flemming releases her hand from the side of Plaintiff's head as soon as other officers arrive and move Plaintiff to the restraint chair. In short, the evidence shows that Lt. Flemming applied the minimal amount of force necessary to restrain an unruly and combative detainee who was threatening her physical safety through his actions. This factor therefore favors Lt. Flemming. See White v. Thompson, No. 2:21-cv-00581, 2023 WL 2541965, at *4 (S.D. W.Va. Mar. 16, 2023) (first Kingsley factor favors defendant where “Deputies Thompson and Williams struggled to control Ms. White, and eventually they needed the assistance of a third officer”).
The second Kingsley factor, the extent of Plaintiff's injury, slightly favors Plaintiff. The record shows that Plaintiff was bleeding from the side of his face and required a laceration repair procedure. Courts have found similar injuries “rise above de minimis harm.” Ballard v. Dozier, No. 5:20-CT-03341-M, 2023 WL 3730287, at *5 (E.D. N.C. May 30, 2023) (“[P]laintiff's photographic evidence reflects several abrasions, cuts, and bleeding on his face, hands, and arms. . . . [T]hese injuries rise above de minimis harm.”); but see Ellenburg v. Henderson Cnty. Jail, No. 1:14-cv-290, 2016 WL 1354980, at *4 (W.D. N.C. Apr. 5, 2016) (describing “two black eyes and a crooked nose” and “a cut [from] taser prongs” as “minimal”).
The third Kingsley factor (any effort made by the officer to temper or to limit the amount of force) favors Lt. Flemming. As noted above, the only times Plaintiff's head makes contact with the counter is when Officer Ausmus and Lt. Flemming are attempting to restrain Plaintiff while he is forcefully pushing against them and has one or both legs wrapped around Lt. Flemming. And when Lt. Flemming crashes to the ground with Plaintiff's legs wrapped around her, she releases her hand from the side of Plaintiff's head as soon as other officers move Plaintiff to the restraint chair. There is no indication that Lt. Flemming's force was gratuitous- she ceased using protective force as soon as Plaintiff no longer posed a threat. See Ellenburg, 2016 WL 1354980, at *4 (finding no excessive force because “when the fighting stopped, no additional force was employed”).
Likewise, the fourth, fifth, and sixth Kingsley factors (the severity of the security problem at issue, the threat perceived by the officer, and whether the plaintiff was actively resisting) strongly favor Flemming. The video evidence shows that Plaintiff was refusing commands. He was physically resisting Officer Ausmus's and Lt. Flemming's attempts to restrain him, and they struggled to control him. Plaintiff had just been arrested for several crimes including drug possession, attempted carjacking, and evading the police. During the struggle at issue, he wrapped his legs around Lt. Flemming, ultimately causing her injury.
S.C. Code Ann. § 16-3-1075(B) provides that “A person is guilty of the felony of carjacking who takes, or attempts to take, a motor vehicle from another person by force and violence or by intimidation while the person is operating the vehicle or while the person is in the vehicle.”
Based on the foregoing, and in view of all record evidence, no reasonable juror could conclude that “the force purposely or knowingly used against [Plaintiff] was objectively unreasonable.” Kingsley, 576 U.S. at 396-97. Thus, the undersigned recommends dismissing Plaintiff's excessive force claim based on Lt. Flemming's alleged conduct. Further, because the undersigned finds no constitutional violation here, any bystander liability claims against Officer Owens, Sgt. Terry Mack, Officer Young, and Cpl. Harrell arising from Lt. Flemming's alleged conduct should also be dismissed. Stafford v. Stout, No. 1:20-cv-731, 2023 WL 3006102, at *9 (M.D. N.C. Apr. 19, 2023) (“Having concluded that neither Defendant Land nor Defendant Rogers caused Plaintiff constitutional injury, the Court should decline to hold Defendant Stout liable on a bystander theory of Section 1983 liability, because he could not have “know[n] that a fellow officer [wa]s violating [Plaintiff's] constitutional rights.” (quoting Randall, 302 F.3d at 204)).
4. Analysis of Excessive Force and Bystander Liability Claims Arising From Defendant Officer Owen's Conduct
The undersigned next considers Plaintiff's claim that Defendant Officer Owens used excessive force against him while putting Plaintiff in the restraint chair on May 4, 2022. As noted above, Plaintiff also alleges bystander claims against Defendants Lt. Flemming, Cpl. Harrell, and Officer Young for “witness[ing[ the incident of Officer Owens walking on my feet trying to break my toes.” (Dkt. No. 1 at 11.)
Upon careful review, the evidence in this case establishes that Officer Owens did not use objectively unreasonable force against Plaintiff. The video evidence here is sufficiently conclusive to support summary judgment-it “blatantly contradicts” Plaintiff's deposition testimony that Officer Owens stepped on Plaintiff's toes while Plaintiff was unconscious. (Dkt. No. 60-3 at 6); Poindexter v. Sandy, 2022 WL 1656126, at *3 (4th Cir. May 25, 2022) (“At the summary judgment stage, a district court may only disregard the nonmoving party's version of the facts if video evidence ‘blatantly contradict[s]' it.” (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Further, contrary to the allegations in the Complaint, Officer Owens cannot be seen “walking on [Plaintiff's] feet back and forth trying to break [his] toes.” (Dkt. No. 1 at 10.)
Rather, the video evidence shows Plaintiff forcefully resisting multiple officers' attempts to restrain him. He is kicking his legs in the air right before Officer Owens briefly places his foot on Plaintiff's foot in order to secure Plaintiff's leg to the restraint chair. Officer Owens removes his foot as soon as Plaintiff's leg is secure. The video footage does not record Plaintiff complaining of foot pain. Plaintiff's medical records do not indicate that he complained about foot pain, and they do not document any injuries to this area. In short, there is no genuine issue of material fact as to the allegedly excessive nature of the force Officer Owens used on Plaintiff in order to restrain him. See Stafford, 2023 WL 3006102, at *9 (finding video footage “quite clearly contradicts” plaintiff's allegation that defendant was kicking him; “As the body camera footage begins, two officers use one of their feet to apply pressure to each of Plaintiff's legs to hold them in place as a third officer applies shackles to Plaintiff's ankles.”; granting summary judgment on excessive force claim given lack of evidence that Defendant Rogers kicked or struck Plaintiff as alleged in the Complaint); see also Scott, 550 U.S. at 379 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
Based on the foregoing, the undersigned recommends dismissing Plaintiff's excessive force claim based on Officer Owens' alleged conduct. Further, because the undersigned finds no constitutional violation here, any bystander liability claims against Defendants Lt. Flemming, Cpl. Harrell, and Officer Young arising from Officer Owens' alleged conduct should also be dismissed. Stafford, 2023 WL 3006102, at *9 (“Having concluded that neither Defendant Land nor Defendant Rogers caused Plaintiff constitutional injury, the Court should decline to hold Defendant Stout liable on a bystander theory of Section 1983 liability, because he could not have “know[n] that a fellow officer [wa]s violating [Plaintiff's] constitutional rights.” (quoting Randall, 302 F.3d at 204)).
For all these reasons, Defendants are entitled to summary judgment on Plaintiff's § 1983 claims in this action.
Because the undersigned finds no questions of fact as to whether Defendants violated Plaintiff's constitutional rights, the undersigned does not address Defendants' qualified immunity argument. See Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (“Qualified immunity shields government officials from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendants' Motion for Summary Judgment (Dkt. No. 60) be GRANTED and this action be dismissed with prejudice.
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).