Opinion
3:22-CV-00078-TES-CHW
04-19-2024
GERALD DUNN, Plaintiff, v. Officer DANIEL FREELAND, Defendant.
Proceedings Under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge
Before the Court is Defendant's motion for summary judgment. (Doc. 42). The undisputed facts show that Plaintiff has not established a valid claim for false arrest or excessive force and that Defendant is entitled to qualified immunity. For these reasons, it is RECOMMENDED that the Defendant's motion for summary judgment (Doc. 42) be GRANTED.
BACKGROUND
Plaintiff filed an initial complaint on July 28, 2022, followed by an amended complaint on October 20, 2022. (Docs. 1; 8). Plaintiff was ordered to recast his complaint on a standard § 1983 complaint form according to the Court's specifications on October 24, 2022. (Doc. 9). Plaintiff's recast complaint was filed on November 16, 2022. (Doc. 10). On December 30, 2022, Plaintiff's recast complaint was screened for frivolity pursuant to 28 U.S.C. §§ 1915A(a) and 1915A(e). (Doc. 13). Plaintiff's claims of false arrest and excessive force were allowed to proceed for further factual development. (Id.) Defendant filed a motion for summary judgment on September 18, 2023. (Doc. 42). Plaintiff filed a response brief and a motion to continue on October 16, 2023. (Docs. 46; 47). In his motion to continue, Plaintiff requested that the Court allow him time to get declarations from material witnesses. (Doc. 47). Defendant filed a reply brief on October 30, 2023. (Doc. 52). On November 9, 2023, the Court granted Plaintiff's motion to continue (Doc. 47) and permitted Plaintiff to supplement his response to Defendant's motion for summary judgment by December 1, 2023. (Doc. 55). Plaintiff did not supplement his response.
RELEVANT FACTS
The parties' versions of the facts differ significantly. In the amended complaint (Doc. 10), which contains Plaintiff's only factual allegations in the record,Plaintiff alleges that he was shopping at a Belk department store on August 23, 2020, when he was approached by Defendant as he left the store. (Doc. 10 at 5). Because was “in fear of [his] safety,” Plaintiff refused to stop and asked what Defendant wanted. (Id.) Plaintiff alleges that Defendant was acting very aggressively and that Defendant grabbed him by his shirt before pulling out his taser. (Id.) Defendant shot Plaintiff in the left side with his taser, grabbed Plaintiff, and slammed Plaintiff to the ground near the exit door. (Id.) Defendant put his knee into Plaintiff's face and neck, breaking one of Plaintiff's teeth and “cutting [Plaintiff's] breathing off.” (Id.) Plaintiff spit out his tooth, while Defendant kept applying pressure to his neck and face, and Plaintiff screamed that he could not breathe. (Id.) Defendant noticed that “many civilians” were standing outside recording the events. (Id.) Plaintiff accused Defendant of trying to kill him. (Id.) Defendant continued holding him down until back-up officers arrived, and Plaintiff was escorted to jail. (Id.)
After Defendant filed his motion for summary judgment, Plaintiff was sent a notice that informed him of his obligations for discovery and response to the motion, including his obligation to file a statement of material facts and a response to Defendant's statements of material fact. (Doc. 44); see also MDGA Local Rule 56. Plaintiff's response to the motion for summary judgment did not include a statement of material facts, nor did Plaintiff respond to Defendant's statements of material fact.
Defendant's statements of material fact describe a much different series of events and cite to evidence that includes two body camera recordings of the entire transaction between Plaintiff and the responding officers. (Doc. 42-2; Surine Body Cam. Video (Exh. C); Freeland Body Cam. Video (Exh. D)). According to Defendant's statement, on August 23, 2020, Athens-Clarke County Police (“ACP”) received a call from an employee at a Belk department store who reported that a man had been observed bagging unpaid merchandise. (Doc. 42-2 ¶ 1). The caller described the man as an African American in his late forties, wearing a navy polo shirt and an Atlanta Braves hat. (Id. ¶ 2). Defendant Officer Daniel Freeland, a member of ACP, went to the department store in response to the call and spoke with an employee responsible for loss prevention. (Id. ¶ 3-4). The employee repeated the description of the suspect provided in the phone call and confirmed that the suspect had been seen shoplifting on the store's surveillance system. (Id.) Plaintiff matched the description of the suspect provided over the phone and in person at the store. (Id. ¶ 3).
“Where the video [evidence] obviously contradicts Plaintiff's version of the facts, . . . the video's depiction [will be accepted] instead of Plaintiff's account.” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010) (citing Scott v. Harris, 550 U.S. 372, 380 (2007) (“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.”))
Another ACP officer, Officer Surine, approached Plaintiff and asked if they could talk, then pointed out that Plaintiff was wearing a belt that still had store merchandise tags on it. (Id. ¶ 5-6). Plaintiff told Officer Surine that he had forgotten that he was still wearing the belt, and he wanted to go retrieve his own belt that he had left on the store rack. (Id. ¶ 7). Seconds later, Plaintiff ran from Officer Surine towards the exit of the store. (Id. ¶ 9). Officer Surine caught Plaintiff as he ran and instructed him to get on the ground. (Id.) Defendant arrived to assist Officer Surine, and both officers continued to order Plaintiff to get on the ground. (Id.) Plaintiff did not get on the ground and instead struggled with the officers. (Id. ¶ 10). The officers initially grabbed Plaintiff, but Plaintiff broke free of their grasp and continued running towards the exit. (Id. ¶ 11). Defendant grabbed Plaintiff again as he ran, as Officer Surine continued to order Plaintiff to get on the ground. (Id. ¶ 12). Plaintiff continued to stand while Defendant attempted to restrain him, and Officer Surine announced that he was going to tase Plaintiff. (Id. ¶ 13).
While the two officers and Plaintiff struggled, a third officer, Officer Vaughn, arrived and began to assist Defendant and Officer Surine. (Id. ¶ 15). Plaintiff continued to resist all efforts of the officers and remained standing. At some point in the struggle, Officer Surine instructed Plaintiff to quit reaching for his taser. (Surine Body Cam. Video (Exh. C) 01:58-02:08). As the struggle continued, Officer Vaughn instructed Officer Surine to use the taser on Plaintiff. (Id. ¶ 16). As Plaintiff struggled to get free, Officer Surine deployed his taser, and one prong of the taser attached to Plaintiff. (Id. ¶ 17). After the taser was used, Officer Vaughn and Defendant grabbed Plaintiff and tried to force him onto the ground. (Id. ¶ 18). Officer Vaughn instructed Plaintiff to put his hands behind his back multiple times, but Plaintiff continued to ignore the officer's instructions. (Id. ¶ 19). Officer Surine announced that he was going to taser Plaintiff again, but before he did so, Officer Vaughn tackled Plaintiff to the ground. (Id. ¶ 20).
After he was forced onto the ground, Plaintiff stated that some of his teeth had been “knocked out.” (Id. ¶ 21). Officer Vaughn and Defendant placed Plaintiff in handcuffs while Plaintiff remained on the ground and repeatedly said that he could not breathe. (Id. ¶ 23). Officer Vaughn confirmed that no one was putting pressure on Plaintiff's neck in response to his complaints, and Officer Surine requested that emergency medical services respond to the scene. (Id. ¶ 23-24). Once Plaintiff had been restrained, he began to apologize to the officers “from the bottom of his heart” and admitted that he was wrong for what he had done. (Id. ¶ 26). Emergency medical services arrived and after examining Plaintiff, confirmed that he had lost a tooth and treated him for minor injuries sustained in the struggle. (Id. ¶ 28).
Officers searched Plaintiff after he was taken into custody and found a pair of wire cutters in his pocket that were used to remove security tags. (Id. ¶ 29). The store's risk management department found a bag containing clothes with their security tags removed in the store, which were valued at $627.00. (Id. ¶ 30). Plaintiff was arrested and charged with theft by shoplifting, possession of tools for commission of a crime, and obstruction of a law enforcement officer under O.C.G.A. §§ 16-8-14, 16-7-20, and 16-10-24(a). (Id. ¶ 31).
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 32224 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014).
Although Plaintiff responded to the Defendant's motion for summary judgment, Plaintiff has failed to rebut the Defendants' statement ofundisputed material facts, triggering consequences under both the Federal Rules of Civil Procedure and this Court's Local Rules. (Doc. 46). Federal Rule of Civil Procedure 56(e)(2) provides that if a party “fails to properly address another party's assertion of fact as required by Rule 56(c),” then the Court may “consider the fact undisputed for purposes of the motion.” Rule 56(e)(2). This Court's Local Rule 56 similarly provides: “All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.” MDGA Local Rule 56. Finally, Federal Rule of Civil Procedure 56(e)(3) provides that the Court may “grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to” summary judgment. Rule 56(e)(3). See also Urdaneta v. Wells Fargo Bank, N.A., 734 Fed.Appx. 701, 704 (11th Cir. 2018). Accordingly, because Defendant properly supported his factual assertions with specific citations to the record, and because Plaintiff failed to cite to the record or respond to the Defendant's factual assertions, the Defendant's facts may be accepted by the Court as undisputed. See Williams v. Slack, 438 F. App'x. 848, 849-850 (11th Cir. 2011) (citing McNeil v. United States, 508 U.S. 106, 113 (1993); Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009)); (Doc. 44 (Notice to Pro Se Party of Motion for Summary Judgment)).
Nevertheless, the Court has reviewed the entire record of the case. If evidence in the record shows that a fact is disputed, the Court has drawn all justifiable inferences in Plaintiff's favor for purposes of summary judgment.
ANALYSIS
Defendant moves for summary judgment on Plaintiff's claims of false arrest and excessive force. (Doc. 42). Because (1) Plaintiff's arguments regarding evidence not in the record are meritless, (2) Plaintiff has failed to establish a valid claim for false arrest or excessive force, and (3) Defendant is entitled to qualified immunity, Defendant's motion for summary judgment should be granted.
1. Plaintiff's arguments regarding additional evidence are meritless
Plaintiff raises several arguments regarding additional evidence that he has not submitted into the record. Each of these arguments as meritless, as Plaintiff has not shown that Defendant failed to comply with appropriate discovery requests, Plaintiff received instruction about the necessity of evidence in motions for summary judgment, and Plaintiff still failed to comply with the Federal Rules of Civil Procedure regarding discovery and factual support in matters of summary judgment.
Plaintiff argues that Defendant's attorney “has submitted to this Court misrepresentation of the facts . . . under false pretenses by suppressing critical evidence in regard to Belk store's inside and outside camera video footages.” (Doc. 46 at 1). Plaintiff argues that this evidence would show that Defendant used excessive force when arresting him. (Id. at 2). Plaintiff contends that Defendant's counsel “are trying to prevent newly discovered evidence” from entering this case, as Plaintiff has “the right to cross-examine . . . tangible evidence for his defense.” Id. Further, Plaintiff argues that if “this Court only accept[s] Defendant's body camera videos or other body camera footage for . . . summary judgment against Plaintiff . . . it would prejudice the fairness of the preponderance of the evidence, and it would violate the Plaintiff's constitutional rights under the equal protection of the law.” (Id.)
Although Plaintiff alleges that additional evidence exists that would help his case, Plaintiff has not produced any such evidence. Plaintiff has previously been informed that “[p]ro se litigants are entitled to reasonable access to the courts, but they are ‘subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.'” (Doc. 45 at 1, quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). The Court denied Plaintiff's prior motions for subpoena and specifically explained that Plaintiff's requests for his desired discovery were insufficient to warrant the issuance of subpoenas. (Id. at 2). The order also explained that the Court was not “obligated to act as Plaintiff's counsel to investigate or otherwise discover this information” for Plaintiff. (Id.) Plaintiff did not correct his motions for subpoenas or otherwise pursue appropriate discovery options to obtain the evidence he now claims is critical. Plaintiff was also given notice of Defendant's motion for summary judgment, which included information regarding his obligations under Federal Rule of Civil Procedure 56. (Doc. 44). Specifically, Plaintiff was informed that a “party opposing a motion for summary judgment cannot simply rely on the pleadings” and that “[t]o establish that a genuine fact dispute exists, the party opposing summary judgment must respond by filing affidavits, depositions, or other material to persuade the Court that the case must be presented to a jury for resolution.” (Id.) Plaintiff was plainly instructed that he “may NOT oppose summary judgment simply by relying on the allegations in [his] pleadings.” (Id. (emphasis in original)). Nevertheless, Plaintiff failed to attach appropriate evidence to his response or otherwise to seek the evidence he describes through appropriate motions for subpoenas or other discovery methods. Plaintiff's failure to seek the discoverable evidence he now claims would help his case is not a justifiable basis to deny Defendant's motion for summary judgment.
Finally, contrary to Plaintiff's claims regarding Defendant's “suppression” of the evidence, Defendant has no obligation to help Plaintiff prepare evidence that Defendant does not possess, and there is no indication in the record that Defendant has denied Plaintiff any appropriate discovery requests. Plaintiff's arguments regarding Defendant's “suppression” of evidence are meritless. Accordingly, Plaintiff has not shown any evidentiary basis for denial of Defendant's motion for summary judgment.
2. Plaintiff has not established a valid claim for false arrest or excessive force
Defendant is entitled to summary judgment as to Plaintiff's false arrest and excessive force claims because the undisputed facts show that there was probable cause for Plaintiff's arrest and the force used during the arrest was reasonable.
“There is no question that an arrest without probable cause to believe a crime has been committed violates the Fourth Amendment.” Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). “The existence of probable cause . . . is an absolute bar to a section 1983 action for false arrest.” Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir. 1990) (citation omitted); see also Grider v. Cty. of Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010). Probable cause is defined as “facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” Gerstine v. Pugh, 420 U.S. 103, 111 (1975). “Probable cause may exist based on the collective knowledge of law enforcement officials derived from reasonably trustworthy information.” Grider, 616 F.3d at 1257 (citing Madiwale, 117 F.3d at 1324).
As Defendant has shown, he and the other responding officers were called to the Belk department store by an employee whose description of the shoplifter matched Plaintiff's appearance, an officer personally witnessed Plaintiff wearing a belt that still had a merchandise tag attached, and Plaintiff admitted to the officer that he was wearing a belt that was not his. (Doc. 42-2 ¶ 1-3, 5-6). These are “facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an office,” and they therefore constitute sufficient probable cause to justify Plaintiff's arrest. See Gerstine, 420 U.S. at 111; Grider, 616 F.3d at 1257. Further, Plaintiff fled when confronted by an officer and continued to resist arrest and ignore the officers' instructions while he was being apprehended. (Doc. 42-2 ¶ 912). This conduct constitutes additional probable cause to justify Plaintiff's arrest. See Manners v. Cannella, 891 F.3d 959, 970 (11th Cir. 2018) (holding that fleeing arrest constitutes probable cause for arrest where state law provides that fleeing a law enforcement officer is a crime, as the fleeing itself is indication that a crime has been committed under those circumstances); see also Tankersley v. State, 155 Ga.App. 917, 273 S.E.2d 862, 866 (1980) (holding that “flight, or attempted flight, after a command to halt constitutes obstruction of an officer” under Georgia law); O.C.G.A. § 16-10-24(a). As Defendant has shown that there is no genuine issue of material fact as to the existence of probable cause for Plaintiff's arrest, Plaintiff's false arrest claim is subject to judgment as a matter of law.
Plaintiff's excessive force claim is also without merit in light of the undisputed facts. As an initial matter, Defendant argues that in cases with both an excessive force claim and a false arrest claim, the excessive force claims have been held to be subsumed by the claim of false arrest. (Doc. 42 at 7, citing Jackson v. Sauls, 206 F.3d 1156, (11th Cir. 2000). Jackson is inapposite to this case, however. In Jackson, the court applied Circuit law holding a claim that “a claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim.” Id. at 1171 (citing Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995). In this case, as noted above, the evidence shows that the arrest was legal. Officers may nevertheless be liable for the excessive use of force even during a lawful arrest. See, e.g., Graham v. Connor, 490 U.S. 386 (1989).
Although a finding that that Plaintiff was not falsely arrested does not negate Plaintiff's excessive force claims, Plaintiff has failed to establish a genuine issue of material fact as to his excessive force claim. Excessive force claims are analyzed under the “reasonableness” standard of the Fourth Amendment, as “the ‘reasonableness' of a particular seizure depends not only on when it is made, but also on how it is carried out.” Graham, 490 U.S. at 395 (emphasis in original). To maintain his excessive force claim, Plaintiff must show “(1) that a seizure occurred, and (2) that the force used to effect the seizure was unreasonable.” Corbitt v. Vickers, 929 F.3d 1304, 1315 (11th Cir. 2019) (internal citation omitted). “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. “Determining whether the force used to effect a particular seizure is ‘reasonable' under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.” Id. at 395; (citing Tennessee v. Gardner, 471 U.S. 1, 8 (1985)).
Under this standard, a court must determine whether the force used “is objectively reasonable in light of the facts confronting the officer,” a determination made “from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight.” Mobley v. Palm Beach Cnty. Sheriff Dep't, 783 F.3d 1347, 1353 (11th Cir. 2015) (internal citations omitted). Some factors used when determining whether force was reasonable include “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.” Graham, 490 U.S. at 396. Further factors include “(1) the need for the application of force, (2) the relationship between the need and the amount of force used, (3) the extent of the injury inflicted, and (4) whether the force was applied in good faith or maliciously and sadistically.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008).
The undisputed evidence, particularly as shown in the video evidence, establishes that Plaintiff was approached by Officer Surine for a shoplifting offense and that Officer Surine initially spoke to Plaintiff without any physical contact. (Doc. 42-2 ¶ 1, 5-7). It was not until Plaintiff attempted to flee from Officer Surine that force was employed, when Officer Surine grabbed Plaintiff to stop him from leaving the store and to arrest him. (Id. ¶ 9). Plaintiff struggled and resisted instructions to get down on the ground while trying to flee. (Id. ¶ 9-13). At one point in the struggle, Officer Surine instructed Plaintiff to quit reaching for his taser. (Surine Body Cam. Video (Exh. C) 01:58-02:08). After this initial struggle and repeated instructions to get down on the ground, all of which Plaintiff ignored, Plaintiff was tasered by Officer Surine and was tackled to the ground by Officer Vaughn, where he was finally handcuffed and arrested. (Doc. 42-2 ¶ 1720). Defendant did not participate in the tasering of Plaintiff, nor did Defendant tackle Plaintiff to the ground. Defendant did help to pin Plaintiff to the ground after he was tackled so that he could be handcuffed.
None of the force that Plaintiff contends was excessive appears to have been executed by Defendant, but rather by other responding officers. It was not Defendant who tackled Plaintiff and caused him to lose a tooth or who initially pinned Plaintiff on the ground. The version of events alleged in Plaintiff's complaint appears to confuse Defendant with the other responding officers. The facts in this case also fail to show that Officers Surine and Vaughn used excessive force. There was probable cause for Plaintiff's arrest, as discussed above; Plaintiff attempted to flee from the officers; Plaintiff resisted the officers' instructions; Plaintiff actively struggled against the officers; and Plaintiff posed a threat to the officers' safety with his struggle. Under these facts, as known by the officers at the time, it was objectively reasonable for officers to grab Plaintiff, tase him, tackle him, and handcuff him. See Ireland v. Prummell, 53 F.4th 1274, 1302 (11th Cir. 2022) (holding that the use of a taser multiple times upon an inmate refusing to comply with orders and physically resisting an officer was not excessive force); Charles v. Johnson, 18 F.4th 686, 700 (11th Cir. 2021) (holding that tackling an agitated person who refused commands and moved to prevent being handcuffed was not excessive force); Brown v. Cty. of Huntsville, Ala., 608 F.3d 724, 739 (11th Cir. 2010) (holding that use of pepper spray on a fleeing suspect was not excessive force).
Plaintiff does not counter Defendant's arguments but instead argues that Defendant “cannot deny that he assaulted Plaintiff with the intent to commit murder because he lost a tooth during the time of the allege[d] arrest.” (Doc. 46 at 3). In support of this argument, Plaintiff adds that he was never indicted by a grand jury for trial on the charges against him. Plaintiff appears to mean that Defendant endangered his life because Defendant “continu[ed] to keep pressing down on [Plaintiff's] neck” and that the lost tooth is an indication of the excessive nature of the force used during the encounter. (Id. at 4). Although Plaintiff did lose a tooth during this encounter, the tooth appeared to be lost as a result of the tackling, which Defendant did not do and which was reasonable force under the circumstances, as explained above. Plaintiff was only treated for minor injuries in the aftermath of the encounter, which also undermines his claim that his lost tooth indicates excessive force or attempted murder. (Doc. 42-2 ¶ 28).
Accordingly, Plaintiff has not shown that the elements for his claims of false arrest and excessive force are met. The undisputed facts show that there was probable cause for Plaintiff's arrest and that the amount of force used during the arrest was reasonable under the circumstances. Therefore, Defendant's motion for summary judgment should be granted.
3. Defendant is entitled to qualified immunity
Even if the evidence were sufficient to establish a genuine issue of material fact as to claims of false arrest and excessive force, Defendant is entitled to qualified immunity. “Qualified immunity protects government officials if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Nam Dang v. Sheriff, Seminole Cnty., Fla., 871 F.3d 1272, 1278 (11th Cir. 2017) (internal citation omitted). “A government actor can be stripped of qualified immunity only when all reasonable government actors in the defendant's place would know that the challenged discretionary conduct violates federal law.” Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995) (citations omitted). “To be entitled to qualified immunity, a public official ‘must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Nam Dang 871 F.3d at 1279. “An official acts within his discretionary authority if his actions (1) were undertaken ‘pursuant to the performance of his duties,' and (2) were ‘within the scope of his authority.'” Id. (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988).
Plaintiff's allegations all pertain to Defendant's actions in the course of his duties as an ACP officer. Plaintiff did not respond to Defendant's qualified immunity argument. Therefore, Defendant has shown he was acting within his discretionary authority at the relevant times and is eligible to assert qualified immunity.
After a defendant establishes that he was acting within his discretionary authority, “the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Myrick v. Fulton Co., Ga., 69 F.4th 1277, 1297 (11th Cir. 2023). A plaintiff fulfills this burden by showing that (1) the facts, viewed in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) that the violated right was clearly established at the time of the alleged violation. Id. (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). These two elements may be addressed in any order, and if the plaintiff fails to show one is fulfilled, the Court need not reach the other. Id.
As discussed above, Plaintiff has not established that Defendant's conduct violated his constitutional rights. Plaintiff moreover has not shown that Defendant's conduct violated clearly established law, and the Court is not aware of any clearly established law to show that such conduct would constitute excessive force or an unreasonable seizure under the Fourth Amendment. Therefore, it is not necessary to establish that the allegedly affected right was clearly established. Defendant is entitled to qualified immunity.
CONCLUSION
Because Plaintiff has not established a valid claim for false arrest or excessive force, and because Defendant is entitled to qualified immunity, it is RECOMMENDED that Defendant's motion for summary judgment (Doc. 42) be GRANTED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the presiding District Judge WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.