Opinion
Civil Action No.: 4:17-cv-00708-RBH-KDW
06-21-2019
Arnold Parson Jr., Plaintiff, v. Darren Miles, Supervisor Judy Barker, Officer Jack McCaskill, Officer Mitchell McCaskill, Officer Charlie Watson, Officer Dewayne Rogers, Officer Jeff Gause, Officer Samantha Jackson, Officer Johnathan Edwards, Officer Robert Page, Officer Michael Latu, Officer Dale Sylvester, Officer Tracey Causey, and Officer Greg Pike, Defendants.
ORDER
Plaintiff Arnold Parson Jr., proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against the above-captioned Defendants. The matter is before the Court for consideration of the parties' objections to the Report and Recommendation ("R & R") of United States Magistrate Judge Kaymani D. West, who recommends granting in part and denying in part Defendants' motion to dismiss Plaintiff's Third Amended Complaint. See ECF No. 189.
The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.). The Court is mindful of its duty to liberally construe Plaintiff's pro se filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (recognizing "[a] document filed pro se is to be liberally construed" (internal quotation marks omitted)). But see United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) ("Although courts must liberally construe the claims of pro se litigants, the special judicial solicitude with which a district court should view pro se filings does not transform the court into an advocate." (internal citations, quotation marks, ellipsis, and brackets omitted)).
Legal Standard
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Discussion
Plaintiff filed this § 1983 action alleging Defendants violated his constitutional rights when executing a writ of assistance and removing him from his foreclosed property in Mullins, South Carolina, on November 2, 2015. The Court previously granted in part and denied in part Plaintiff's motion to amend and permitting the filing of his Third Amended Complaint. See ECF No. 159 (order); ECF No. 161 (Third Am. Compl.). As explained in that prior order (ECF No. 159), Plaintiff's sole remaining claim is his § 1983 excessive force claim relating to his allegedly excessively tight handcuffing during his arrest.
The Court concluded the Rooker-Feldman doctrine barred Plaintiff's other claims. See ECF Nos. 114 & 159.
Defendants have now filed a motion to dismiss the Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1), (2), and (6). See ECF No. 166. The Magistrate Judge recommends granting the motion as to Plaintiff's official capacity claims and denying it as to his individual capacity claims. See R & R [ECF No. 189]. Plaintiff and Defendants have both filed objections to the R & R. See ECF Nos. 192 & 194. Plaintiff has filed a response to Defendants' objections. See ECF No. 196.
Defendants also moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(4) and (5), but as the Magistrate Judge notes, they subsequently filed a notice waiving formal service of process. See R & R at p. 1 n.1 (citing ECF No. 174). The Magistrate Judge analyzes Defendants' motion under Rule 12(b)(6). See R & R at p. 3.
I. Plaintiff's Objections
Plaintiff objects to the Magistrate Judge's conclusion that Defendants are entitled to Eleventh Amendment immunity as to the official capacity claims. See Pl.'s Objs. [ECF No. 194]; R & R at pp. 3-4.
Although the Magistrate Judge analyzed Eleventh Amendment immunity under Rule 12(b)(6) , the Fourth Circuit recently indicated the Eleventh Amendment implicates subject matter jurisdiction and should be analyzed under Rule 12(b) (1). See Wicomico Nursing Home v. Padilla, 910 F.3d 739, 746 (4th Cir. 2018); see also Darling v. Falls, 236 F. Supp. 3d 914, 925 n.11 (M.D.N.C. 2017) ("In the Fourth Circuit, . . . the recent trend appears to treat Eleventh Amendment immunity motions under Rule 12(b)(1)." (internal quotation marks omitted)).
"[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983," Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989), as "Eleventh Amendment immunity protects the States, their agencies, and officials from suit in federal court." Allen v. Cooper, 895 F.3d 337, 347 (4th Cir. 2018). "This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.
The Eleventh Amendment does not bar prospective injunctive or declaratory relief. See Wicomico, 910 F.3d at 748 (citing Ex parte Young, 209 U.S. 123 (1908)). However, Plaintiff's complaint does not seek any injunctive relief, does not seek prospective declaratory relief, and does not allege an ongoing violation of federal law. See generally Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) ("In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." (alteration in original) (internal quotation marks omitted)).
Here, the Eleventh Amendment bars Plaintiff's claims for declaratory relief and monetary damages against Defendants in their official capacities because they are state officials, i.e., agents/employees of the Marion County Sheriff's Department. See generally Gulledge v. Smart, 878 F.2d 379, 1989 WL 69302, at *2 (4th Cir. 1989) ("In South Carolina a sheriff, and his deputies, are state actors. A suit against them in federal court in their official capacities is therefore barred by the [E]leventh [A]mendment." (internal citation omitted)); Brown v. Middleton, 362 F. App'x 340, 346 n.8 (4th Cir. 2010) (same); Edwards v. Lexington Cty. Sheriff's Dep't, 688 S.E.2d 125, 127 n.1 (S.C. 2010) ("[U]nder South Carolina law, the sheriff and sheriff's deputies are State, not county, employees."). The Court will overrule Plaintiff's objections and dismiss his official capacity claims without prejudice.
"The Fourth Circuit considers the Eleventh Amendment to be jurisdictional with respect to dismissals[,] and . . . district courts in this Circuit should dismiss on Eleventh Amendment grounds without prejudice." Andrews v. Taylor, 2018 WL 2108022, at *6 (E.D. Va. May 7, 2018); see also Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005) ("Eleventh Amendment immunity has attributes of both subject-matter jurisdiction and personal jurisdiction."); S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("[D]ismissals for lack of jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims." (alteration in original) (citation omitted)).
II. Defendants' Objections
Defendants object to the Magistrate Judge's conclusion that they are not entitled to qualified immunity as to Plaintiff's individual capacity claims. See Defs.' Objs. [ECF No. 192]; R & R at pp. 4-5. Defendants assert the Magistrate Judge failed to consider two cases from the Eastern District of Virginia that—according to Defendants—"undeniably" hold "Plaintiff's alleged right to be free from excessively tight or forceful handcuffing was not clearly established at the time of the incident." Defs.' Objs. at pp. 1-2.
Those two cases are Deavers v. Vasquez, 57 F. Supp. 3d 599 (E.D. Va. 2014), and Cunningham v. Ruffin, 2016 WL 6396015 (E.D. Va. Oct. 26, 2016). See Defs.' Objs. at pp. 2-3.
"The doctrine of qualified immunity shields government officials from liability for civil damages when their conduct does not violate clearly established constitutional or other rights that a reasonable officer would have known." Sims v. Labowitz, 885 F.3d 254, 260 (4th Cir. 2018) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). "The burden of proving the affirmative defense of qualified immunity rests on the party seeking to invoke it." Wilson v. Prince George's Cty., 893 F.3d 213, 219 (4th Cir. 2018). A qualified immunity analysis is a two-prong inquiry, Pearson, 555 U.S. at 232, and "[t]o avoid dismissal of a complaint after a qualified immunity defense is raised, [1] a plaintiff must allege sufficient facts to set forth a violation of a constitutional right, and [2] the court must conclude that this right was clearly established at the time of the alleged violation." Sims, 885 F.3d at 260.
Regarding the first prong of the qualified immunity analysis, the Magistrate Judge concludes, "Plaintiff has plausibly alleged sufficient facts to establish that his constitutional rights were violated based on the way Defendants handcuffed him." R & R at p. 5; see also id. at p. 2 (summarizing Plaintiff's handcuffing-related allegations). Defendants do not specifically object to this conclusion. Instead, Defendants' objections concern the second prong of the qualified immunity analysis—whether their alleged "conduct violated a constitutional right that was clearly established at the time the conduct occurred." Wilson, 893 F.3d at 221; see Defs.' Objs. at pp. 1-3.
"A right is 'clearly established' if it would be clear to a reasonable officer that the alleged conduct is unlawful." Id. A court determines whether a right was clearly established by "first look[ing] to cases from the Supreme Court, this Court of Appeals, or the highest court of the state in which the action arose ." Thompson v. Commonwealth of Virginia, 878 F.3d 89, 98 (4th Cir. 2017) (emphasis added); see, e.g., Booker v. S.C. Dep't of Corr., 855 F.3d 533, 540 (4th Cir. 2017) ("[T]he first step is to consider cases of controlling authority in this jurisdiction. We thus start with Supreme Court, Fourth Circuit, and Supreme Court of South Carolina decisions that have addressed the asserted right." (emphasis added)).
"In the absence of directly on-point, binding authority, courts may also consider whether the right was clearly established based on general constitutional principles or a consensus of persuasive authority." Thompson, 878 F.3d at 98 (internal quotation marks omitted). Also, as the Magistrate Judge notes, "defendants can violate clearly established law even under novel factual circumstances." Williams v. Strickland, 917 F.3d 763, 770 (4th Cir. 2019) (internal quotation marks omitted).
Although the United States Supreme Court and Fourth Circuit do not appear to have squarely addressed this issue, the South Carolina Supreme Court clearly established in a 1998 decision that an arrestee has the right to be free from excessively tight or forceful handcuffing. See Quesinberry v. Rouppasong, 503 S.E.2d 717 (S.C. 1998). In Quesinberry, an arrestee "complained to [the officer] about her handcuffs" while she was "[i]nside the patrol car . . . being transported to jail" by stating:
"I think these handcuffs must be too tight. I can't feel my wrists." I said, "I can't feel my hands at all. Could you check them?" and he [the officer] didn't respond, and I said several more times driving to the jail, "Something's wrong with my hands. I can't, I can't feel my hands."Id. at 718-19 (ellipsis omitted). Analyzing the plaintiff's/arrestee's excessive force claim under Graham v. Connor, 490 U.S. 386 (1989), the S.C. Supreme Court concluded she "presented sufficient evidence of excessive force to survive a directed verdict motion":
After her release from jail, Lewis [the arrestee] went to the hospital emergency room where bandages were applied to her arms. She consulted an orthopedic surgeon a month later who diagnosed her with mild carpal tunnel syndrome in both wrists. She ultimately underwent cortisone injections and orthopedic surgery on her wrists.
Petitioner Lewis . . . was the first person involved with the officers. She obeyed Officer Rouppasong's command to return to the sidewalk after she initially approached the traffic stop. She was doing
nothing more than standing on the sidewalk, across the highway from the officers, when she was grabbed. At the time of her arrest, there were no other people around. Furthermore, once she was in the patrol car she repeatedly complained about her wrists and received no response whatsoever from Officer Rouppasong.Id. at 721. Significantly, the S.C. Supreme Court cited with approval a published Ninth Circuit decision that had denied qualified immunity on a similar handcuffing claim. Id. (citing Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993), in which the plaintiff claimed a police officer "used excessive force in arresting him when [the officer] placed him in handcuffs tight enough to cause pain and discoloration to his wrists, and . . . the officer refused his request to loosen them" (internal quotation marks and original brackets omitted)); see also McCall v. Williams, 52 F. Supp. 2d 611, 621 & 622 n.15 (D.S.C. 1999) (acknowledging Quesinberry's reliance on Palmer and implicitly recognizing Quesinberry "'clearly established'" "the right to be free from the use of excessive force by law enforcement officers in tightly handcuffing a suspect"); Gonzalez v. City of New York, 2000 WL 516682, at *5 (E.D.N.Y. Mar. 7, 2000) (citing Quesinberry and Palmer to deny qualified immunity); Stutzman v. Krenik, 350 F. Supp. 3d 366, 382 (D. Md. 2018) (citing Palmer as recognizing "courts have held that handcuffing in an excessively tight manner so as to cause injury can constitute excessive force").
The crimes Lewis was charged with were not severe, and she did not pose an immediate safety threat to the officers or others. Furthermore, at the time these injuries were inflicted, particularly those caused by the handcuffs, she was not actively resisting arrest but was sitting in a patrol car, in police custody.
Based on Quesinberry, a published 1998 decision by South Carolina's highest court, the Court concludes Plaintiff's right to be free from excessively tight or forceful handcuffing was clearly established at the time of the alleged violation in November 2015. Accordingly, the Court will overrule Defendants' objections and deny their motion as to Plaintiff's individual capacity claims.
Additionally, the Court notes the two Eastern District of Virginia cases on which Defendants rely—Deavers and Cunningham—dealt with "unduly tight or forceful handcuffing alone, absent significant physical injury ." Deavers, 57 F. Supp. 3d at 609 (emphasis added); see Cunningham, 2016 WL 6396015, at *5 ("Deavers, and the cases it cites, share the holding that a lack of evidence of significant physical harm undermines a claim for excessive force based on the manner of cuffing."). The Court questions the "significant physical injury" requirement of these cases because, in the Fourth Amendment context, "the severity of injury resulting from the force used has always been but one 'consideration in determining whether force was excessive.'" Smith v. Murphy, 634 F. App'x 914, 917 (4th Cir. 2015) (quoting Jones v. Buchanan, 325 F.3d 520, 530 (4th Cir. 2003)). Moreover, another judge in the Eastern District of Virginia has contrarily ruled, "A survey of excessive force case law reveals that other appellate courts have determined that unduly tight handcuffing constitutes excessive force. Although these cases do not constitute binding precedent, the Court finds the appellate court consensus significant enough to show a clearly established right." Geba v. Norris, 2016 WL 8730898, at *7 (E.D. Va. Apr. 4, 2016) (internal citations omitted), R & R adopted by 2:14-cv-00612-RBS, at ECF No. 42 (E.D. Va. May 13, 2016). Plaintiff cites Geba in his response to Defendants' objections. See ECF No. 196 at p. 3. In any event, as explained above, the S.C. Supreme Court's 1998 decision in Quesinberry clearly established the law applicable to Plaintiff's handcuffing-related excessive force claim.
Conclusion
For the foregoing reasons, the Court OVERRULES the parties' objections, ADOPTS the R & R [ECF No. 189] as modified herein, GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss [ECF No. 166], and DISMISSES Plaintiff's official capacity claims without prejudice. Plaintiff's individual capacity claims will proceed at this time.
IT IS SO ORDERED. Florence, South Carolina
June 21, 2019
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge