Opinion
2:21-cv-03303-DCN-MGB
06-22-2023
Jack Christian Woody, PLAINTIFF, v. City of Isle of Palms; Joshua Phillips, in his official and individual capacities; Sgt. Matthew Storen, in his official and individual capacities; J. Swain; and John Doe, in his official and individual capacities, DEFENDANTS.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff, through counsel, filed this civil action pursuant to 42 U.S.C. § 1983. (Dkt. Nos. 1, 1-1.) 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 Rule 73.02(B)(2), D.S.C. Currently before the court is Defendants' Motion for Summary Judgment. (Dkt. No. 44.) For the reasons set forth below, the undersigned RECOMMENDS that Defendants' Motion be GRANTED IN PART AND DENIED IN PART.
BACKGROUND
This case arises from an alleged use of excessive force during Plaintiff's arrest on December 27, 2019. (Dkt. Nos. 21, 44, 50.) According to Plaintiff, he was escorted out of The Windjammer, a bar and grill located in Isle of Palms, at approximately 10:54 PM. (Dkt. No. 21 at 5.) Around that time, Defendants Joshua Phillips and Matthew Storen were dispatched to The Windjammer following a report that Plaintiff had entered The Windjammer in violation of a trespass order issued in 2018. (Dkt. No. 44 at 2.) Video evidence submitted by the parties depicts the subsequent events as follows.
Defendants Phillips and Storen “had personal knowledge of the Plaintiff previously being placed on trespass from The Windjammer” because they handled the 2018 incident giving rise to the trespass order. (Dkt. No. 44 at 2.)
Defendants Phillips and Storen arrived at The Windjammer as Plaintiff was being escorted out by Matthew Flaquer, an employee of The Windjammer. (Dkt. Nos. 44, 44-1, 44-2, 50, 50-1.) As Plaintiff exited The Windjammer, he saw Defendants Phillips and Storen waiting for him and asked: “What's up, guys?” (Dkt. No. 44-1.) Defendant Phillips responded by instructing Plaintiff to put his hands behind his back. (Id.) Plaintiff then stated: “It's been over a year.” (Id.) Defendant Phillips replied: “It doesn't matter, it's indefinite.” (Id.) After a bit of back and forth, Defendant Phillips reached for Plaintiff's arm in an attempt to place handcuffs on him. (Id.) Plaintiff pulled his arm away and stated: “Come on, guys.” (Id.) Defendant Phillips then moved Plaintiff to the face the wall of the building. (Id.) Plaintiff fidgeted, shifting away from Defendant Phillips. (Id.) Defendant Phillips told him to stop. (Id.) Defendant Storen stepped in to help, holding Plaintiff against the wall with one hand while Defendant Phillips handcuffed him. (Id.)
Plaintiff maintains that he believed the 2018 trespass order prohibiting him from entering The Windjammer expired after one year. (Dkt. No. 50.)
After Plaintiff was handcuffed, the officers turned him around and told him to “come on.” (Id.) In response, Plaintiff repeated his assertion that “they told [him] a year.” (Id.) Defendant Phillips said: “I don't care what they told you.” (Id.) Plaintiff replied: “You guys are being ridiculous.” (Id.) Defendant Phillips responded by telling Plaintiff he was resisting arrest. (Id.) Plaintiff then repeatedly asked what he was under arrest for, and one of the officers responded that Plaintiff was under arrest for disorderly conduct. (Id.)
The officers then attempted to lead Plaintiff down the stairs of The Windjammer, into the parking lot. (Id.) At this point, Plaintiff was moving around, and the officers seemed to struggle to lead him down the stairs. (Id.) Halfway down the stairs, Plaintiff bumped into a railing that surrounded the landing of the staircase. (Id.) A struggle ensued. (Id.) After a few seconds, the officers laid Plaintiff down on the stairs and held him there by his chest. (Id.) Defendant Storen searched Plaintiff and emptied his pockets. (Id.) The officers had a brief conversation with Plaintiff about the trespass order and Plaintiff's belief that it expired after one year. (Id.) After this conversation, the officers told Plaintiff to get up. (Id.) The officers then led him down the remaining stairs without issue. (Id.)
The video evidence depicting this struggle is not clear. (Dkt. Nos. 44-1, 50-10.)
While walking down the remaining stairs, Plaintiff asked the officers to pull up the trespass order, presumably to see if it had expired. (Id.) They said no and told Plaintiff he was under arrest for disorderly conduct and resisting arrest. (Id.) Plaintiff continued walking with the officers until they reached their vehicle. (Id.) When they got to the car, Plaintiff stopped and told the officers not to take him to North Charleston. (Id.) At that point, Defendant Storen told Plaintiff to stop resisting and pushed him into the side of the vehicle. (Id.) The officers then struggled with Plaintiff. (Id.) A few seconds into the struggle, the officers opened the door of the police car and told Plaintiff to “get in the car.” (Id.) After another few seconds, Plaintiff was not in the car. (Id.) The officers again told Plaintiff to get in the car. (Id.) After about seven seconds, Defendant Storen told Plaintiff he was “about to get tased” and tased him. (Id.) Plaintiff yelled out in pain and got in the car. (Id.) Once Plaintiff was secured in the police vehicle, the officers recorded Plaintiff's information and talked with Mr. Flaquer. (Id.) When Officer Phillips got back into the police car, Plaintiff requested an ambulance. (Id.) After some discussion, Officer Phillips transported Plaintiff to East Cooper Hospital Medical Center before bringing him to the Charleston County Detention Center. (Id.)
The video evidence depicting this struggle is not clear. (Dkt. Nos. 44-1, 50-10.)
Plaintiff claims he suffered physical injuries and mental pain and suffering as a result of the foregoing events. (Dkt. No. 21 at 10.) As such, he brought the instant civil action. Plaintiff's Second Amended Complaint brings a § 1983 excessive force claim and state law assault and battery claims against Defendant Storen; a § 1983 excessive force claim and state law battery claim against Defendant Phillips; supervisory liability claims against Defendants Swain and Doe; and a custom, policy and/or usage claim against Defendant City of Isle of Palms. (Id. at 10-20.) Plaintiff seeks actual and punitive damages, attorneys' fees and costs, and declaratory and injunctive relief. (See generally id.)
Plaintiff also brought supervisory liability claims against several other officers. (Dkt. No. 1, 1-1.) However, those claims were dismissed following the court's ruling on a Partial Motion to Dismiss filed by those officers. (See Dkt. Nos. 34, 38, 40.)
Defendants filed the instant Motion for Summary Judgment on February 24, 2023. (Dkt. No. 44.) Plaintiff responded on March 28, 2023, and Defendants replied on April 11, 2023. (Dkt. Nos. 50, 53.) Accordingly, the Motion is fully briefed and ripe for disposition.
LEGAL STANDARD
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)).
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.
DISCUSSION
In their motion, Defendants raise several arguments for dismissal of this action. They argue: (1) Plaintiff's § 1983 claims for excessive force against Defendants Phillips and Storen in their official capacities fail because they are duplicative of Plaintiff's § 1983 Monell claim against Defendant City of Isle of Palms; (2) Plaintiff's § 1983 claims for excessive force against Defendants Phillips and Storen in their individual capacities fail because Defendants Phillips and Storen did not violate Plaintiff's constitutional rights; (3) Plaintiff's supervisory liability claims against Defendants Swain and Doe in their individual capacities fail as a matter of law; (4) Plaintiff fails to provide evidence in support of his § 1983 Monell claim against Defendant City of Isle of Palms; (5) the South Carolina Tort Claims Act (“SCTCA”) bars Plaintiff's state law claims; (6) Plaintiff's state law claims fail on the merits; (7) Defendants Swain, Phillips, and Storen are entitled to qualified immunity; and (8) Plaintiff's request for injunctive and declaratory relief are without merit and should be denied. (Dkt. No. 44.) The undersigned considers these arguments, below.
In the interest of clarity, the undersigned has organized Defendants' arguments into two separate categories: (1) those relating to Plaintiff's claims against the individual Defendants, and (2) those relating to Plaintiff's claims against Defendant City of Isle of Palms.
A. § 1983 Excessive Force Claims
1. Official Capacity
At the outset, the undersigned agrees with Defendants' argument that Plaintiff's excessive force claims against Defendants Phillips and Storen in their official capacities are duplicative of Plaintiff's Monell claim against Defendant City of Isle of Palms. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (as long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity); Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (affirming District Court dismissal of school Superintendent where the court “correctly held that the § 1983 claim against [the defendant] in his official capacity as Superintendent is essentially a claim against the Board[,] [also a defendant,] and thus should be dismissed as duplicative.”); Smith v. Town of S. Hill, 611 F.Supp.3d 148, 169 (E.D. Va. 2020) (“Because Smith's official capacity claims against the individual South Hill Defendants are redundant of her claims against the Town of South Hill, the Court will dismiss all counts against the individual South Hill Defendants brought against them in their official capacities.”). Accordingly, the undersigned RECOMMENDS that Defendants are entitled to summary judgment on Plaintiff's excessive force claims against Defendants Phillips and Storen in their official capacities, and such claims should therefore be DISMISSED.
2. Individual Capacity
Nonetheless, Plaintiff's § 1983 excessive force claims against Defendants Phillips and Storen in their individual capacities should survive summary judgment. A claim that “law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure' of his person . . . [is] properly analyzed under the Fourth Amendment's ‘objective reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). In applying the objective reasonableness standard, “the question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396-97).
Further, proper application of the objective reasonableness standard “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,” and “[t]he ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. “Ultimately, the question to be decided is ‘whether the totality of the circumstances justifie[s] a particular sort of . . . seizure.'” Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015) (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
Plaintiff's excessive force claims center around two events: (1) Defendants Phillips and Storen throwing him down onto the steps, and (2) Defendant Storen tasing him. (Dkt. No. 50 at 19, stating: “A reasonable juror could conclude that throwing Woody onto the steps when he couldn't obey an unreasonable command and tasing him when he had trouble getting into the back seat of a patrol car were unreasonable uses of force.”). Plaintiff claims that Defendants present nothing more than disputed factual allegations in support of their request for summary judgment on Plaintiff's excessive force claims, and that Defendants' request should therefore be denied. (Id. at 20.) For the reasons set forth in greater detail below, the undersigned agrees.
i. Use of Force on the Stairs
Construed in the light most favorable to Plaintiff, the evidence shows that, after handcuffing Plaintiff, Defendants Phillips and Storen led him down the stairs together, holding onto him. (Dkt. No. 44-1.) During this time, Plaintiff was fidgeting. (Id.) After descending the first several stairs, Plaintiff and the officers reached a landing. (Id.) Plaintiff then bumped into the railing surrounding the landing. (Id.) A struggle ensued, but the video footage depicting that struggle is unclear. (Id; Dkt. No. 50-10.) When the body camera footage becomes clear again, Plaintiff is laying on his back on the staircase and Defendants are holding him down by the chest. (Dkt. No. 44-1.)
When considering whether the officers' use of force was excessive as a matter of law, the undersigned must determine if the totality of circumstances justified the “particular sort of . . . seizure.” Ray, 781 F.3d at 101. In this instance, however, the court cannot determine whether the forced used by Defendants Phillips and Storen was justified without making impermissible credibility determinations. Indeed, the parties recount the events leading up to Plaintiff's purported “body slam” very differently. (Dkt. Nos. 44-3, 44-4, 50-9.) For example, Plaintiff testified that he lost his balance coming down the stairs and that the officers misinterpreted this as him “trying to evade them.” (Dkt. No. 50-9 at 8.) Plaintiff claims that the officers then “body slammed [him] onto the stairs.” (Id.) By contrast, Defendant Phillips testified that Plaintiff became “dead weight” as they were leading him down the staircase. (Dkt. No. 44-3 at 4.) Similarly, Defendant Storen testified that: “[a]s we went to carry him down the stairs he's flailing around. He's making myself and Officer Phillips unsteady on our feet, so we put him to the ground at the top of the staircase ....” (Dkt. No. 44-4 at 5.) Defendant Storen further testified that Plaintiff “dropped his weight” on the landing of the stairs, so they “put him [on his back] to give everybody a moment to catch their footing and try to calm him down.” (Id. at 9.) As noted, video footage depicting the pertinent period is unclear and not helpful in discerning exactly what happened before Defendants pulled Plaintiff down onto the staircase. (Dkt. Nos. 44-1, 50-10.) Accordingly, genuine issues of fact exist as to whether the officers' use of force against Plaintiff on the landing of the stairs was reasonable.
Consideration of the Graham balancing analysis also precludes granting summary judgment to Defendants on this claim. With respect to the first Graham factor, the evidence indicates that Plaintiff had committed, at most, a misdemeanor before the officers brought him to the ground. Accordingly, this factor weighs in Plaintiff's favor. See Jones v. Buchanan, 325 F.3d 520, 528 (4th Cir. 2003) (“[W]hen the ‘offense was a minor one,' [the Fourth Circuit has] found that the first Graham factor weighed in plaintiff's favor.”).
This fact is undisputed. (Dkt. Nos. 44, 50, 50-2 at 3, 53.)
The second and third Graham factors weigh in Plaintiff's favor, as well. While Plaintiff admits to actively resisting arrest while he was outside the entrance of The Windjammer, it is unclear whether he was actively resisting and/or posing a safety threat to the officers at the time they pulled him down on the staircase. (See supra at 8; see also Horowitz v. Sherman, No. CV DKC 19-2459, 2020 WL 5339843, at *4 (D. Md. Sept. 4, 2020) (“Tackling a non-threatening, nonresisting individual to the ground does allege a Fourth Amendment excessive force claim.”). Further, there is no evidence indicating that Plaintiff was trying to flee, nor that the officers believed Plaintiff had a weapon or had reason to believe Plaintiff could have had a weapon. See Cansler v. Hanks, 777 Fed.Appx. 627, 638 (4th Cir. 2019) (noting that whether an individual “actually possessed a weapon . . . [is] a fact that could weigh heavily in the objective reasonableness assessment”).
Based on the foregoing, the undersigned cannot find that the decision to pull Plaintiff to the ground as he descended the stairs outside of The Windjammer was objectively reasonable as a matter of law. See Graham, 490 U.S. at 388. For this reason, the undersigned RECOMMENDS that Defendants Phillips and Storen should be DENIED summary judgment on this point.
ii. Taser Use
As for Plaintiff's claim that Defendant Storen used excessive force when he tased Plaintiff, the undersigned finds that Defendants are not entitled to summary judgment on this claim, either. “Deploying a taser is a serious use of force” that “inflicts a painful and frightening blow.” Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016). Because “[a] taser . . . is expected to inflict pain or injury when deployed[,]” the Fourth Circuit has found “[i]t . . . may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser.” Armstrong, 810 F.3d at 909; cf. Cansler, 777 Fed.Appx. at 637 (noting that Armstrong did not establish “a rule for taser usage that is applicable to every situation” and emphasizing analysis of Graham factors). In the case at hand, a reasonable jury could find that Defendant Storen was not confronted with an immediate safety risk before he tased Plaintiff. The undersigned therefore recommends that Defendant Storen be denied summary judgment on this claim.
Considering the facts in the light most favorable to Plaintiff, the Graham balancing analysis again weighs in Plaintiff's favor. First, as noted, Plaintiff committed nothing more than a misdemeanor before he was tased. (Dkt. Nos. 44, 50, 50-2 at 3, 53.) Second, genuine issues of fact exist as to whether Plaintiff posed an immediate threat to Defendant Storen's safety at the time he was tased. In their Motion, Defendants assert that Defendant Storen tased Plaintiff because he was actively resisting arrest and because Defendant Storen believed that Plaintiff was attempting to access items from Defendant Storen's duty belt (such as his taser, pepper spray, baton, knife, and firearm). (Dkt. No. 44 at 9.) Defendants also contend that Plaintiff was kicking Defendant Storen in the shins and that Defendant Storen “was concerned that, should the struggle continue, the Plaintiff could kick his kneecap out and render him incapable of standing.” (Id. at 10.) However, Plaintiff denies these allegations, (Dkt. No. 50-9 at 11), and the video evidence depicting the moments leading up to Defendant Storen tasing Plaintiff is largely blacked out and blurred (Dkt. Nos. 44-1, 50-10). Further, Plaintiff notes that the Use of Force reports completed by Defendants Phillips and Storen after Plaintiff's arrest make no mention of Plaintiff's purported kicking and attempts to grab items from Defendant Storen's duty belt. (Dkt. Nos. 55-13, 55-14.) Plaintiff also notes that he taunted Defendant Storen for being out of breath and called him a “fatass” just before he was tased. (Dkt. Nos. 44-1, 50-10.) Viewing these facts in the light most favorable to Plaintiff, a reasonable jury could conclude that Defendant Storen did not tase Plaintiff because he feared for his safety, but instead tased Plaintiff in retaliation for Plaintiff's rude comment.
To the extent Defendants argue that they knew Plaintiff to be violent based on his 2018 arrest, Plaintiff has provided video evidence of his prior arrest that disputes this allegation. (Dkt. No. 50-15.)
As for the third Graham factor, it is unclear whether Plaintiff was actively resisting at the time he was tased. Again, the video evidence depicting the moments before Defendant Storen deployed the taser is muddled, and the parties do not agree on what happened during that time. (Dkt. Nos. 44-1, 50-10.) Still, it is undisputed that Plaintiff was not trying to flee and that he did not have a weapon. (Dkt. Nos. 44, 44-1, 50, 53.)
Based on the above, the undersigned cannot find that Defendant Storen's decision to deploy his taser was objectively reasonable as a matter of law. See Graham, 490 U.S. at 388; Armstrong, 810 F.3d at 905, 909 (explaining the “risk of immediate danger,” noting 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”). The undersigned therefore RECOMMENDS that Defendant Storen be DENIED summary judgment on this claim.
B. Qualified Immunity
Nevertheless, Plaintiff's excessive force claims against Defendants Phillips and Storen must be dismissed if they are entitled to qualified immunity. “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.” Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects officers from liability for “bad guesses in gray areas” and bases liability on the violation of bright-line rules. Id. (quoting Braun v. Maynard, 652 F.3d 557, 560 (4th Cir. 2011)). “Qualified immunity provides ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'” Cloaninger ex rel. Est. of Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, (1985)). The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
“In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry.” Ray, 781 F.3d at 100. The first prong asks “whether the facts, viewed in the light most favorable to the plaintiff, show that the officer's conduct violated a federal right.” Id. “The second prong of the qualified-immunity inquiry asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional.” Id.
At the outset, the undersigned reiterates that genuine issues of material fact exist as to the events underlying Plaintiff's excessive force claims, and that these issues preclude summary judgment on those claims. The undersigned therefore recommends that Defendants Phillips and Storen are not entitled to qualified immunity. See Strickland v. Oconee Cty. Sheriff's Off., No. 8:19-cv-3176-BHH-KFM, 2021 WL 4691776, at *9 (D.S.C. June 1, 2021) (recommending that defendants are not entitled to qualified immunity on excessive force claim where “genuine issues of material fact remain” as to whether defendants violated the plaintiff's constitutional rights), adopted, 2021 WL 4145850 (D.S.C. Sept. 13, 2021).
Additionally, this court has previously determined that “[t]here is a substantial body of caselaw showing that when an officer strikes [or continues to use force against] a suspect who is already restrained, this can be considered excessive force.” Wiegand v. Long, No. 2:19-cv-1842-RMG-MHC, 2022 WL 2068951, at *11 (D.S.C. Feb. 28, 2022) (internal quotations omitted), adopted, 2022 WL 1590994 (D.S.C. May 19, 2022); see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that the facts of a prior case need not be identical in order for an officer to have fair notice that conduct is objectively unreasonable, so long as the reasoning of the case establishes premise that such conduct is unreasonable). Further, the court in Armstrong clearly established that tasing is not an appropriate use of force where no immediate safety risk exists. Armstrong, 810 F.3d at 905, 909 (explaining the “risk of immediate danger,” noting that “[a]t bottom, ‘physical resistance' is not synonymous with ‘risk of immediate danger[,]'”). Accordingly, the undersigned cannot conclude that Defendant Phillips and Storen are entitled to qualified immunity as a matter of law. The undersigned therefore RECOMMENDS that Defendants' Motion for Summary Judgment be DENIED as to qualified immunity.
C. State Law Claims
In addition to bringing § 1983 claims against Defendants Phillips and Storen, Plaintiff also alleges state law assault and battery claims against Defendant Storen, and a state law battery claim against Defendant Phillips. (Dkt. No. 21 at 19.) Defendants contend that Phillips and Storen are entitled to immunity under the SCTCA, and that Plaintiff's assault and battery claims should therefore be dismissed. (Dkt. No. 44 at 6.) More specifically, Defendants assert that they are provided immunity under section 15-78-70 of the SCTCA because Defendants Phillips and Storen acted within the scope of their official duties during the events alleged. (Id.)
S.C. Code Ann. § 15-78-70 provides that an employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable except “if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” In his response brief, Plaintiff asserts that a reasonable jury could believe that Defendants Phillips and Storen acted with actual malice and intent to harm, and therefore, they are not entitled to immunity under the SCTCA. (Dkt. No. 50 at 2-3.)
The undersigned agrees that, for the reasons discussed in Section I.A.2 above, a jury could find that Defendants Phillips and Storen acted with actual malice or intent to harm when using force against Plaintiff. Indeed, the undersigned has recommended denying summary judgment on Plaintiff's excessive force claims because genuine issues of material fact exist as to whether the uses of force implemented by Defendants Phillips and Storen were reasonable. As such, the undersigned recommends that Defendants Phillips and Storen are not necessarily immune from liability under § 15-78-70, and Plaintiff's assault and battery claims should survive summary judgment. See, e.g., Morning v. Dillon County, No. 4:15-cv-03349-RBH, 2017 WL 4276906, at *6 (D.S.C. Sept. 27, 2017) (“Because Plaintiff has a viable § 1983 excessive force claim against Rogers, there is a genuine issue of material fact as to whether the DCSO is liable under the SCTCA for the alleged assault and battery committed by Rogers”) (citing Barfield v. Kershaw Cty. Sheriff's Office, 638 Fed. App'x 196, 201-03 (4th Cir. 2016) (“[I]n the case of a viable excessive force claim under § 1983, Barfield's SCTCA battery claim against the KCSO also survives [summary judgment].”)).
To the extent Defendants argue that Plaintiff's assault and battery claims fail as a matter of law, the undersigned disagrees. In their Motion, Defendants note that “the common law standard applicable to each of these claims is reasonableness,” and contend that “the analysis provided in Section III above [relating to Plaintiff's excessive force claims] should be dispositive of these claims.” (Dkt. No. 44 at 17.) As is more fully explained in Section I.A.2, genuine issues of material fact exist as to whether Defendants Phillips and Storen acted reasonably in their uses of force against Plaintiff. (See supra at 7-11.) Because Plaintiff's assault and battery claims are based upon the same events as his excessive force claims, those issues of fact preclude summary judgment on his assault and battery claims, as well. (Dkt. No. 21 at 19.) The undersigned therefore RECOMMENDS that Defendants' Motion for Summary Judgment be DENIED with respect to these claims.
D. Supervisory Liability
Plaintiff also brings supervisory liability claims against Defendants Swain and Doe. At the outset, the undersigned RECOMMENDS that the court DISMISS Defendant Doe without prejudice because discovery has ended, but Plaintiff has not substituted a named defendant in place of Doe. See Attkisson v. Holder, 925 F.3d 606, 625-28 (4th Cir. 2019) (recognizing a court may dismiss a John Doe defendant without prejudice “if it does not appear that the true identity of an unnamed party can be discovered through discovery or through intervention by the court” (citing Schiff v. Kennedy, 691 F.2d 196, 198 (4th Cir. 1982))); Massey v. Ojaniit, 759 F.3d 343, 347 n.1 (4th Cir. 2014) (same).
As for Defendant Swain, the undersigned recommends that he is entitled to summary judgment on Plaintiff's supervisory liability claim. To hold a Defendant liable under § 1983, a plaintiff must show that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). The doctrine of respondeat superior is inapplicable in these cases. Id.; see Love-Lane, 355 F.3d at 782 (stating that there is no respondeat superior liability under § 1983). However, supervisory officials may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). To establish supervisory liability under § 1983, Plaintiff must establish that: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted).
Plaintiff has failed to make the requisite showing. Indeed, Plaintiff points the court to no evidence to support his claim that Defendant Swain had any knowledge-whether actual or constructive-that Defendants Phillips and Storen were engaged in conduct posing a risk of constitutional injury, or that Defendant Swain acted with deliberate indifference or tacit authorization of any improper practices. (See generally Dkt. No. 50.) Rather, the record reflects that Defendant Swain was aware of only one incident of impermissible use of force in the past five years. (Dkt. No. 44-10 at 3.) He testified that the officer who committed this infraction was issued a disciplinary action. (Id. at 4.)
Even considering the evidence in the light most favorable to Plaintiff, the record simply does not give rise to a genuine issue of material fact as to Plaintiff's supervisory liability claims. The undersigned therefore RECOMMENDS that Defendants' Motion for Summary Judgment should be GRANTED as to such claims.
Because the undersigned recommends that Plaintiff's supervisory liability claim against Defendant Swain fails as a matter of law, the undersigned need not consider whether Defendant Swain is entitled to qualified immunity. (See Dkt. No. 44 at 18.)
II. City of Isle of Palms
Turning to Plaintiff's § 1983 claim against Defendant City of Isle of Palms, the undersigned recommends that this claim cannot survive summary judgment. (Dkt. No. 21 at 16.) In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978), the Supreme Court concluded that “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Pursuant to Monell, a municipality or other local government entity may be liable under § 1983 for the violation of a plaintiff's constitutional rights, but only where the constitutionally offensive actions of employees are taken in furtherance of some municipal policy or custom. See Monell, 436 U.S. at 694; see also Knight v. Vernon, 214 F.3d 544, 552 (4th Cir. 2000). A plaintiff may demonstrate the existence of an official policy in three ways: (1) an express policy; (2) certain affirmative decisions of policymaking officials; and (3) a widespread practice that is so engrained that it constitutes a custom, including omissions made by policymaking officials that “manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999).
A policy or custom that gives rise to § 1983 liability will not “be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees.” Milligan v. City of Newport News, 743 F.2d 227, 230 (4th Cir. 1984); see Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 403 (4th Cir. 2014) (“Sporadic or isolated violations of rights will not give rise to Monell liability ....”). Rather, only “‘widespread or flagrant'” misconduct suffices. Owens, 767 F.3d at 403 (quoting Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987)). Beyond an unconstitutional practice or custom, an entity may also be liable under Monell for its inaction where its omissions constitute deliberate indifference to constitutional injuries. For instance, the failure to train, supervise, or discipline officers can support liability under Monell. See Connick v. Thompson, 563 U.S. 51, 61 (2011).
Here, Plaintiff has not provided any evidence that would support a § 1983 municipal liability claim against Defendant City of Isle of Palms. For example, the record contains a copy of the City's “Response to Resistance” policy, but Plaintiff does not argue that the policy is unconstitutional or even problematic. (Dkt. Nos. 44-11, 50, 50-12.) The undersigned's independent review of the policy uncovered no issues. (Dkt. Nos. 44-11, 50-12.) Further, the Second Amended Complaint does not mention other incidents of constitutional violations by municipal employees that could support finding “a widespread practice that is so engrained it constitutes a custom,” and Plaintiff does not offer evidence on this point. Carter, 164 F.3d at 218; see also Milligan, 743 F.2d at 230 (a policy or custom that gives rise to § 1983 liability will not “be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees”). Finally, the record does not contain evidence indicating that the City was “on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights.” Connick, 563 U.S. at 61 (denying municipal liability claim based on deliberate indifference where plaintiff “did not prove a pattern of similar violations that would establish that the policy of inaction [was] the functional equivalent of a decision by the city itself to violate the Constitution” (internal quotations and citations omitted)). Accordingly, the undersigned RECOMMENDS that Plaintiff's Monell claim against Defendant City of Isle of Palms fails as a matter of law. Defendants' Motion for Summary Judgment should be GRANTED as to this claim.
As for Plaintiff's request for declaratory and injunctive relief, the undersigned recommends that this request be denied. As Defendants point out, Plaintiff seeks a declaration from the court that Defendants' past actions violated his rights. (Dkt. No. 21.) However, he does not ask the court to define the legal rights and obligations of the parties in anticipation of some future conduct. Accordingly, Plaintiff's request for declaratory relief should be denied. See Johnson v. McCuskey, 72 Fed.Appx. 475, 477 (7th Cir. 2003) (“Declaratory judgments . . . are meant to define the legal rights and obligations of the parties in the anticipation of some future conduct.”); Mosley v. Cofield, No. 6:11-cv-1542-JMC-JDA, 2011 WL 3876963, at *3 (D.S.C. July 21, 2011), adopted, 2011 WL 3876950 (D.S.C. Sept. 1, 2011) (“Plaintiff is not entitled to the declaratory relief that he seeks in the instant Complaint because he does not ask the Court to define the parties' rights in the future, he seeks merely a declaration from the Court that ‘the acts and omissions described herein violated Plaintiff's rights' in the past.” (quoting Abebe v. Richland County, No. 2:09-cv-02469-MBS-RSC, 2009 WL 6582396, at *4 (D.S.C. Oct.8, 2009))). Similarly, Plaintiff is not entitled to injunctive relief “absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again-a ‘likelihood of substantial and immediate irreparable injury.'” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502 (1974)). Further, Plaintiff's request for injunctive relief stems from his Monell claim against Defendant City of Isle of Palms, which lacks merit for the reasons set forth above. (Dkt. No. 21.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendants' Motion for Summary Judgment (Dkt. No. 44) be GRANTED IN PART AND DENIED IN PART. Defendants Swain, Doe, and City of Isle of Palms are entitled to summary judgment on all claims asserted against them. Defendants Phillips and Storen are entitled to summary judgment only on Plaintiff's § 1983 excessive force claims against them in their official capacities However, Plaintiff's § 1983 excessive force claims against Defendants Storen and Phillips in their individual capacities, Plaintiff's state law assault and battery claims against Defendant Storen, and Plaintiff's state law battery claim against Defendant Phillips should remain pending.
IT IS SO RECOMMENDED.
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).