Opinion
2:21-cv-03288-RMG-MGB
04-27-2023
Jamel Floyd, Plaintiff, v. L.C. Knight, in his capacity as Sheriff of the Dorchester County Sheriff's Department; Brandon Smith, in his individual capacity, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, through counsel, brought this action pursuant to 42 U.S.C. § 1983. This matter is before the Court upon Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. (Dkt. No. 23.) This case was referred to a United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(f), D.S.C. For the reasons set forth herein, the undersigned recommends granting in part and denying in part Defendants' motion.
BACKGROUND
The events giving rise to this action occurred on April 16, 2021. On that day, Defendant Brandon Smith (“Smith”), a deputy for the Dorchester County Sheriff's Department (“DCSD”), responded to a trespassing complaint and detained Plaintiff Jamel Floyd, culminating in a physical altercation. (Dkt. Nos. 1-1 at 3-4; 23-2 at 3.) Plaintiff alleges that while he was “walking in Flower Town Village,” Smith approached him and “instructed Plaintiff to get in his patrol car.” (Dkt. No. 1-1 at 4.) After Plaintiff refused and stated he was walking home, Smith “told Plaintiff he had ‘three seconds' to comply and get in his car.” (Id.) When Plaintiff refused, Smith “began to yell expletives” and ultimately “grabbed Plaintiff around the neck area and slammed him on the ground. Smith continued to hold Plaintiff on the ground for a brief period of time.” (Id.) According to Plaintiff, Smith then told him he could go home. Plaintiff alleges that “Defendants knew Plaintiff's mental history prior to their engagement with him on April 16, 2021.” (Id.)
In addition to Smith, the Complaint also names L.C. Knight as a Defendant “in his capacity as Sheriff of the [DCSD].” (Id. at 1.) The Complaint brings § 1983 claims against Smith for unlawful seizure and excessive force, and it brings state law claims against “Defendants” for “gross negligence and recklessness,” false imprisonment, intentional infliction of emotional distress, and “defamation/defamation per se.” (Id. at 5-8.) Plaintiff seeks compensatory and punitive damages. (Id. at 8.)
Plaintiff filed this action in state court on September 8, 2021, and it was removed to federal court on October 8, 2021. (Dkt. No. 1.) Defendants filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on January 17, 2023. (Dkt. No. 23.) Plaintiff filed a response in opposition on January 31, 2023 (Dkt. No. 24), to which Defendants replied on February 7, 2023 (Dkt. No. 25). This motion has been fully briefed and is ripe for disposition.
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 the dismissal of this action. They argue: (1) Smith is entitled to qualified immunity as to Plaintiff's § 1983 claims; (2) the South Carolina Tort Claims Act bars Plaintiff's state law claims against Defendants; and (3) Plaintiff's claims for false imprisonment, intentional infliction of emotional distress, and defamation fail on the merits. (Dkt. No. 23.)
Defendants have submitted several items of evidence in support of their motion; namely, the dispatch recording that Smith received prior to the incident; Smith's body camera footage and in-car camera footage of the incident; an incident report completed by Smith; an investigative report issued by the South Carolina Law Enforcement Division (“SLED”) pertaining to the incident at issue; and deposition testimony from Plaintiff and Smith. (Dkt. Nos. 23-2-23-8.) Plaintiff has also submitted evidence in opposition to Defendants' motion, including, deposition testimony from Ebony Floyd (“Ms. Floyd”), the Plaintiff's mother; an expert report completed by Ashley Heiberger; and a portion of Smith's in-car camera footage of the incident. (Dkt. Nos. 24 at 3 n.1; 24-2; 24-4.)
Before considering Plaintiff's claims, the undersigned first summarizes the relevant evidence in the record, below.
A. Relevant Evidence
1. Incident Report and SLED Report
Defendants have submitted an incident report completed by Smith regarding this incident, as well as the SLED Investigative Report. (Dkt. Nos. 23-3; 23-4.) Smith's incident report states that the incident occurred between approximately 5:55 pm and 6:14 pm on April 15, 2021, in the Flowertown Village area of Summerville, South Carolina. (Id. at 1.) The incident report describes Plaintiff as a 19-year-old black man. (Id.) The incident report includes Smith's narrative, which states:
On the above date and time I, Deputy Smith, was dispatched to 102 English Drive, Flower Town Village, located within Dorchester County, in reference to a suspicious person in the roadway. Upon arrival, I met with Mr. Jamel Floyd, the suspect, standing in the roadway. Who stated that he was walking through the neighborhood to get home. Mr. Floyd stated he was not doing anything, however, advised every time he walks through English Road, the residences at 102 English Road harass him. I advised Mr. Floyd to stand near my patrol vehicle while I spoke with the complainants.
I spoke with Ms. Melissa Diaz, the complainant, who stated she found two sheets of paper on her property that appeared to be song lyrics. Ms. Diaz stated she believes it was written by Mr. Floyd because of the past incidents that occurred on her property and advised she has a no trespass on Mr. Floyd. Ms. Diaz stated she has cameras on her property. However, they do not currently work. Ms. Diaz further stated she thinks Mr. Floyd has mental issues and wanted him to stop coming by her home.
I spoke with Mr. Floyd again and asked him what is on the two sheets of paper. Mr. Floyd advised it was a song he wrote, and his friend placed it on the complainant's property without him knowing. Mr. Floyd further stated his friend left and did not know where he was. I told Mr. Floyd to stand near my patrol vehicle once again.
I spoke with Ms. Diaz again and asked her where exactly the paper was found. Ms. Diaz advised the paper was found on the edge of her yard near the road and driveway. Ms. Diaz further stated she did not take a picture of sheet of paper, just picked it up and contacted law enforcement. I advised Ms. Diaz I will attempt to give Mr. Floyd a ride to get home.
I asked Mr. Floyd multiple times to get in the rear of my patrol vehicle so I could give him a ride home. However, Mr. Floyd advised he did not want a ride because he did not want his mother to see him with police. I told Mr. Floyd to leave the area and Mr. Floyd started cursing and causing a disturbance. I told Mr. Floyd if he did not stop cursing, I would arrest him. Mr. Floyd stated I was not going to put my hands on him and he was not going to jail.
At that time, I approached Mr. Floyd [and] advised him to put his hands behind his back. Mr. Floyd started walking back away from me and I grabbed him by his left arm. Mr. Floyd started pushing away and I grabbed Mr. Floyd by his waist, picked him up, and assisted him to the ground, face down. While detaining Mr. Floyd on the ground, I got off him and told him to leave the area. I did not place handcuffs or arrest Mr. Floyd. My body worn camera was on during the investigation. I have nothing further to report.(Id. at 1-2.)
The SLED Report states that on June 10, 2021, Defendant L.C. Knight, the Sheriff of DCSD, requested that SLED “investigate a Use of Force incident that occurred on April 16, 2021, in the roadway of English Rd., Summerville, SC involving” Smith and Plaintiff. (Dkt. No. 23-4 at 1.) The SLED Report contains summaries of multiple interviews of individuals involved with the incident, including with the complainants, Jay and Melissa Crespo (referenced as “Diaz” in the incident report). Relevant here, it states, “Agent's Note: Jay and Melissa stated they have a trespass notice on Floyd for their residence due to Jay would not give Floyd a $1.00 several weeks ago, and he became upset. This has been an ongoing thing with Floyd, and they know he needs help.” (Id. at 4.) This portion of the SLED Report also states that “The note left [by Plaintiff] was threats against [Jay Crespo] and his family.” (Id.) According to the Report, Jay Crespo “observed Floyd approach Deputy Smith in his (Jay) view with the intention to hurt him Deputy Smith). Deputy Smith responded by grabbing Floyd and forcing him to the ground as Floyd resisted.” (Id.) Melissa Crespo reported that “When Deputy Smith told Floyd he would take him home, Floyd approached Deputy Smith and threatened him by stating, ‘he was going to knock the officer teeth out' and began swinging at the officer.” (Id.) The SLED Report states that following the incident, “Smith was placed on administrative leave for several days, then returned back to work on full duty. Thereafter, he was put back on administrative leave, desk duty pending the SLED investigation.” (Id. at 10.)
2. Deposition Testimony
As noted above, the parties have provided the transcripts from the depositions of Plaintiff; Smith; and Ms. Floyd, Plaintiff's mother. Ms. Floyd testified that Plaintiff was first diagnosed with mental health issues “when he was little.” According to Ms. Floyd, “it started out as ADHD and autism. Then as he got older, it was bipolar disorder. And then after that, they said he had schizophrenia.” (Dkt. No. 24-2 at 10.) When asked about Plaintiff's injuries after the incident with Smith, Ms. Floyd stated “his face was scraped, he had scrapes on his arm, and he told me his back was hurting and his head was hurting.” (Id. at 12.)
During his deposition, Smith testified that he received “a report of a person trespassing and possibly stripping naked in the street.” (Dkt. No. 23-2 at 3.) When Smith arrived at the property, he saw Plaintiff “with his shirt off and he's putting it back on.” (Id.) Smith also saw the homeowners in the yard.” (Id.) The homeowners told Smith that when they pulled up to their house, they “saw the letter and [Plaintiff] was standing in the roadway.” (Id. at 4.) Smith said he knew Plaintiff because, approximately six to eight months prior, he “placed him on trespass from a day care center” after Plaintiff was “sitting inside the day care” (Id.) When asked to describe the incident, Smith offers a description consistent with his narrative in the incident report. He stated that he “couldn't really understand” the note because “it was like chicken-scratch handwriting.” (Id.) While Plaintiff initially denied the note was his, it had Plaintiff's name “over the top of it.” (Id.) Plaintiff told Smith that the note contained “a song that I wrote about being a man.” (Id.) Plaintiff also told Smith that a “friend” put the note on the property at issue. (Id.) According to Smith, after Plaintiff refused his offer for a ride home, Plaintiff “said the F word” and he “start[ed] cussing me out.” (Id.) It was at that point Smith attempted to arrest Plaintiff and the physical encounter ensued. (Id. at 5.) When asked if he “lost your temper at some point,” Smith responds, “to say I didn't I would be lying.” (Id. at 5.) Smith testified that he had probable cause to arrest Plaintiff, but he chose not to because Plaintiff “was 19 at the time” and he “doesn't need all of this on his plate.” (Id.)
During his deposition, Plaintiff testified that at the time of the incident, he “was walking home” and used “the bathroom in the woods.” (Dkt. No. 23-8 at 4-5.) Plaintiff testified, “then the cop showed up, said I was starting stuff, and then he told me I had three seconds to leave; and, um, if I didn't leave, he was going to arrest me. And that's when he slammed me on the ground.” (Id. at 5.) Plaintiff admitted during his deposition that he had left the note at issue on the property, not a friend. (Id.) While Plaintiff denied trespassing, he acknowledged that he could have been arrested for putting the note on the property. (Id.) Plaintiff testified that when he walked away from the incident, he “had a little bruise on the side of [his] rib.” (Id.) He also testified that he “had a scratch on [his] arm.” (Id. at 9.)
3. Video Footage
Defendants have provided video footage of the incident recorded both on Smith's body camera and his in-car camera. They have also provided the dispatch recording Smith received prior to the incident. Plaintiff has provided a shorter portion of the recording from Smith's in-car camera.
Smith's in-car camera footage begins with Smith in full view, standing beside Plaintiff in partial view. Smith then moves off screen and can be heard talking to individuals off-camera, presumably the people that called the police to report the alleged trespass. They can be heard stating that Plaintiff left a note on the property at issue. (3:00.) They confirm to Smith that they did not actually see Plaintiff on their property, but they found the note he allegedly left. (4:00.) Plaintiff moves away from the camera during that time. He can later be heard speaking with Smith about why he was near the property at issue. Plaintiff denies to Smith that he trespassed on the property and claims “a friend” left the note on the property. (5:00.) Plaintiff states that the note contains a song. (5:25.) Plaintiff states he was walking through the neighborhood because it is the safest route from “the furniture store” to his house. (6:15.)
Plaintiff and Smith then move back in view, standing in front of the car. (6:26.) Plaintiff tells Smith he did not know his friend left the note on the property. (6:52.) Smith then walks off camera and Plaintiff follows. Plaintiff tells Smith his friend left. (7:19.) Smith asks Plaintiff where he is going, and Plaintiff says he is “heading home.” (8:20.) Smith then speaks again with the individuals who reported the trespass. He tells them that for trespass, “we need video footage or something, even a picture of him on the property.” (9:12.) He tells them “something is mentally wrong with him,” and explains Plaintiff's home is nearby. He tells them he plans to give Plaintiff a ride home and that he dealt with Plaintiff “all last year.” (9:35.)
Smith can then be heard telling Plaintiff he is “taking you home.” (10:24.) Plaintiff says he does not want to get in the car and he would rather walk home. Plaintiff says he does not want his mom to be upset by the police. Smith then hands the note to Plaintiff and tells him to “get going.” (11:40.) Plaintiff then continues to talk to Smith. Smith tells Plaintiff he is not allowed to be near the property at issue “causing a disturbance.” Plaintiff continues to talk, and Smith says, “How about I arrest you right now? . . .You've got three seconds to start walking towards that sidewalk or I'm going to arrest you.” (12:20.) He counts down from three, and then he tells Plaintiff he is under arrest and to “turn around.” Smith and Plaintiff then appear back in front of the camera, with Smith approaching Plaintiff and Plaintiff backing away from him. (12:43.) Plaintiff can be heard saying, “Don't touch me.” Smith then grabs Plaintiff, brings him to the ground, and grabs Plaintiff by the neck. Once on the ground, Plaintiff immediately says, “Okay! Okay! I'll stop! I'll stop! I promise I'll stop!” (12:50.) Smith continues to yell at Plaintiff, holding him by the neck. He yells, “I'm done with you. How many times do I have to tell you? You want to act like a man and harassing these people. I'll put you on trespass for almost all these fucking properties over here. You come in this roadway and start cussing and everything.” Plaintiff then says he “had a hard day.” (13:13.) Smith yells in response, “I tried to give you a ride home and you want to sit here and act like this. Now get up and get going.” (13:22.) Smith then removes his hands from Plaintiff, gets up, and he and Plaintiff walk away from each other. The period of time where Plaintiff is on the ground and physically detained by Smith lasts approximately 30 seconds.
Smith's body camera depicts the same events except that Plaintiff and Smith can be seen on camera for more of their dialogue, prior to the physical altercation. The camera shows Plaintiff standing to the side of the car while Smith talks to him off screen, telling him to leave or he will be arrested. (12:18.) It is not clear what Plaintiff is saying in response. At all times, Plaintiff's hands are either down at his side or spread open. He does not appear to be walking towards Smith prior to the attempted arrest.
On the dispatch recording, Smith can be heard receiving a dispatch to report to the property at issue.
The dispatch recording appears to include only 20 seconds of dialogue. The remaining 25 minutes of the recording are silent.
4. Plaintiff's Expert Report
Plaintiff has submitted an expert report drafted by his expert Ashley Heiberger, a former police officer with the Bethlehem Police Department in Bethlehem, Pennsylvania. (Dkt. No. 24-4 at 3-4.) Mr. Heiberger was a police officer there for approximately 22 years and retired as a captain and the Professional Standards Division Commander in 2017. (Id.) He then spent five years as a police practices advisor for a firm handling compliance under a federal court settlement agreement. (Id. at 4.)
In his expert report, Mr. Heiberger first summarizes the facts surrounding the incident. He states that when Smith approached Plaintiff with handcuffs and Plaintiff backed away, “the interaction between Deputy Smith and Mr. Floyd became a force encounter.” (Id. at 12.) Mr. Heiberger describes the beginning of the encounter as follows:
Deputy Smith and Mr. Floyd were facing each other in the street, and Mr. Floyd took several steps backward before the deputy used his right hand to take hold of Mr. Floyd's left upper arm. Deputy Smith then grasped Mr. Floyd, whom he was still facing, in what is typically described as a ‘bear hug.' Deputy Smith then quickly moved his hips forward in a manner commonly known as ‘popping,' while simultaneously lifting Mr. Floyd off his feet. While Mr. Floyd was still in the air, Deputy Smith rotated his upper body and put Mr. Floyd on the street. While Deputy Smith did not body slam Mr. Floyd, an accurate description using the vernacular would be that the deputy ‘dumped' him on the street. Once Mr. Floyd was prone on the street, Deputy Smith positioned himself over the top of Mr. Floyd and used empty hand control techniques. The deputy used his right hand to grasp Mr. Floyd's neck from the rear, and used his left hand at various points to grasp Mr. Floyd's left shoulder area, left arm, and left wrist.(Id. at 12-13.)
Mr. Heiberger then offers opinions on the following issues: (1) whether Smith's “threats to arrest” were “justified”; and (2) whether Smith used excessive force during his physical altercation with Plaintiff. (Id. at 14-16.) According to Mr. Heiberger, the evidence shows “Deputy Smith acknowledged that he could not proceed against Mr. Floyd based on a lack of evidence showing that Mr. Floyd had been involved in criminal activity, i.e., nothing indicated that Mr. Floyd had been on the property or had placed the letter there.” (Id. at 15.) Mr. Heiberger also states that the evidence shows “Mr. Floyd was generally composed” during the encounter. (Id.) “He did not engage in any physically threatening, violent, or tumultuous behavior.” (Id.)
Mr. Heiberger opines that based on the material reviewed and the preceding analysis, it is my opinion that a reasonable officer would not threaten to arrest a neurodivergent man when there is no evidence that the man engaged in criminal activity. Threats to arrest under such circumstances would not be justified, nor in accordance with generally accepted law enforcement practices.(Id.) He further opines,
based on the material reviewed and the preceding analysis, it is my opinion that a reasonable officer would not use force on a neurodivergent man who:
Was not behaving in a manner that could reasonably be perceived as criminal activity; and
Was cooperative and generally composed, and did not make any verbal threats, and did not create a disturbance or engage in any physically threatening, violent, or tumultuous behavior, or other conduct that could reasonably be perceived as a threat to anyone's safety, or resistance or flight.
Such use of force would not be justified, nor in accordance with generally accepted police practices.(Id. at 16.)
B. Plaintiff's Federal Claims
As discussed above, the Complaint alleges § 1983 claims against Smith for unlawful seizure and excessive force. (Dkt. No. 1-1 at 5.) In his response brief, Plaintiff implies he also brings these § 1983 claims against Defendant L.C Knight. (Dkt. No. 24 at 1.) Plaintiff states he sues both Defendants “in their individual capacities.” (Id.)
In Plaintiff's discussion of his state law claims, he asserts he brings claims against Defendants “in their official and individual capacities.” (Dkt. No. 24 at 4.)
The undersigned considers these federal claims below.
1. Qualified Immunity Standard
“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)). They are thus immune from suit if their “conduct [was] objectively reasonable under the circumstances.” Putman v. Harris, --F.4th--, 2023 WL 2994158, at *3 (4th Cir. Apr. 19, 2023) (quoting Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015)). “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. Estate 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.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). 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.” Ray, 781 F.3d at 100. An officer's alleged use of excessive force during an arrest or investigation implicates the Fourth Amendment right against unreasonable seizures. 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. District court and court of appeals judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
2. Unlawful Seizure
The Fourth Amendment “guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures.'” Graham v. Connor, 490 U.S. 386, 394 (1989) (quoting U.S. Const. amend. IV). Under the Fourth Amendment an officer may make a warrantless arrest of an individual in a public place, if the arrest is supported by probable cause. United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (citing cases). A police officer determines whether probable cause exists based on the “totality of the circumstances known to the officer at the time of the arrest.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002) (citing United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988)). “For probable cause to exist, there need only be enough evidence to warrant the belief of a reasonable officer that an offense has been or is being committed; evidence sufficient to convict is not required.” Id. at 367-68 (citing Wong Sun v. United States, 371 U.S. 471, 479 (1963)). “Two factors govern the determination of probable cause in any situation: ‘the suspect's conduct as known to the officer, and the contours of the offense thought to be committed by that conduct.'” Id. at 368 (quoting Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992)). To show an absence of probable cause, Plaintiff must allege a set of facts that made it unjustifiable for a reasonable officer to conclude that he was violating the underlying offense. Id.
Moreover, the officer's “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” McCoy v. City of Columbia, 929 F.Supp.2d 541, 556 (D.S.C. 2013) (quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004)); see Jackson v. City of Abbeville, 623 S.E.2d 656, 660 (S.C. Ct. App. 2005) (noting that, in South Carolina, “it is permissible to rely on an uncharged offense to establish probable cause”). “An arrest is valid if ‘based on the facts known to the officer, objective probable cause exist[s] as to any crime.'” Engwer v. Sims, No. 3:06-cv-2271-CMC, 2007 WL 1864064, at *3 (D.S.C. June 26, 2007) (quoting United States v. McNeill, 484 F.3d 301, 311 (4th Cir. 2007)).
a. Analysis
Here, Plaintiff was never actually arrested by Smith. He was threatened with arrest, briefly physically detained, and then told to go home. Plaintiff argues that “Smith did not detain and assault Plaintiff Floyd based on probable cause; Defendant Smith's actions spawned from frustration.” (Dkt. No. 24 at 13.) Defendants contend that “Smith had probable cause to arrest the Plaintiff as he reported to the scene with Plaintiff present, witnesses confirmed that the Plaintiff was threatening them and left writings on their property, and the Plaintiff admitted that the writing was his.... Smith then had further probable cause to arrest Plaintiff after Plaintiff repeatedly refused to comply with lawful directives, Plaintiff used expletives toward Defendant Smith and then resisted arrest.” (Dkt. No. 23 at 13.) While Defendants are not specific here, it appears they believe there was probable cause to arrest Plaintiff for trespass, resisting arrest, and breaching the peace. (Id.)
A police officer may, without a warrant, arrest a person who commits any misdemeanor in the officer's presence. See S.C. Code Ann. § 17-13-30. Trespass after notice is a misdemeanor criminal offense prohibited by section 16-11-620 of the South Carolina Code. South Carolina's criminal trespassing statute states that “[a]ny person who, without legal cause or good excuse, enters . . . on the premises of another person after having been warned not to do so” is guilty of trespass. S.C. Code Ann. § 16-11-620. In South Carolina, breach of peace is a common law offense that encompasses a broad range of conduct that defies strict definition and depends on the conduct's time, place, and proximity to others. State v. Simms, 774 S.E.2d 445, 447 (S.C. 2015). Generally, breach of peace is defined as “a violation of the public order as amounts to a disturbance of the public tranquility, by act or conduct either directly having this effect, or by inciting or tending to incite such a disturbance of the public tranquility.” Id. (quoting State v. Peer, 466 S.E.2d 375, 379 (S.C. Ct. App. 1996)). Finally, “while a person may be charged only with resisting arrest (i.e., where uncharged conduct provided probable cause for the arrest), resisting arrest alone does not provide probable cause for the arrest that was resisted.” Newkirk v. Enzor, 240 F.Supp.3d 426, 433 (D.S.C. 2017).
Upon careful review, the undersigned finds the evidence does not indicate “an absence of probable cause” such that it was unjustifiable for a reasonable officer to conclude that Plaintiff had committed a trespass offense. See Brown, 278 F.3d at 368 (“To prove an absence of probable cause, Brown must allege a set of facts which made it unjustifiable for a reasonable officer to conclude that she was violating the disorderly conduct ordinance.”).
The record shows the following undisputed facts were known to Smith prior to and during the incident at issue. Six to eight months prior to this incident, Smith had placed Plaintiff “on trespass from a day care center.” Smith reported to the incident at issue after receiving a report of a person trespassing and possibly stripping naked in the street. When Smith arrived on the scene, Plaintiff was standing in the roadway, apparently near the property at issue. Plaintiff told Smith he was walking through the neighborhood to go home. Smith was informed by the complainant that she found a note on her property she believed to be written by Plaintiff “because of past incidents that occurred on her property.” However, she did not see Plaintiff physically on her property. The complainant also told Smith that she already had a “no trespass” in place on Plaintiff. Plaintiff eventually admitted to Smith that the note was his, but he claimed that a friend had left it on the property. Plaintiff told Smith his friend left, and he did not know where he was.
Based on the foregoing, under the “totality of the circumstances known to [Smith] at the time of the [detainment],” it was reasonable for Smith to believe that Plaintiff had committed a trespass offense. See Brown, 278 F.3d at 367; see also Putman v. Harris, No. 22-1360, 2023 WL 2994158, at *4 (4th Cir. Apr. 19, 2023) (rejecting argument that “the reasonableness of [the officer's] belief is a disputed fact that we can't review in this interlocutory appeal”; “Looking at the facts as the district court understood them, Harris committed no constitutional violation when detaining Putman, as he had probable cause for a mental-health seizure and a reasonable belief that Putman posed an immediate threat.”); McCoy v. City of Columbia, 929 F.Supp.2d 541, 558 (D.S.C. 2013) (“The only relevant facts in an analysis of whether probable cause for arrest existed are those facts and circumstances known to the Officer Defendants at the time of McCoy's arrest.”); Jackson, 623 S.E.2d at 660 (“We have carefully reviewed the record in the light most favorable to Jackson and conclude that, as a matter of law, the facts known to the officer ‘would induce an ordinarily prudent and cautious man, under the circumstances, to believe' that Jackson had committed the offense of trespass after notice.”).
Here, the undersigned has considered Plaintiff's expert report, wherein Mr. Heisberger stated “nothing indicated that Mr. Floyd had been on the property or had placed the letter there,” and he opined that “a reasonable officer would not threaten to arrest a neurodivergent man when there is no evidence that the man engaged in criminal activity.” (Dkt. No. 24-4 at 15.) As an initial matter, Mr. Heisberger's opinion that Smith lacked probable cause to arrest Plaintiff is an inadmissible legal conclusion, and, therefore, should not be considered by the Court. See United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006) (“[O]pinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts is generally inadmissible.”). As for his finding that there was no evidence Plaintiff had been on the property or had placed the letter there, “evidence sufficient to convict is not required” to establish probable cause. Brown, 278 F.3d at 367-68. As discussed above, the record shows that at the time of the events, Smith knew Plaintiff had a prior history with the complainants including a no trespass placed against him, Plaintiff admitted to writing the note left on the property, and Plaintiff was reported being near the property after the complainants found the note. Under such circumstances, the undersigned cannot find it was unjustifiable for Smith to conclude that Plaintiff had committed a trespass offense.
Because the undersigned recommends that probable cause existed to arrest Plaintiff for trespass, summary judgment should be granted to Smith on Plaintiff's § 1983 claim for unlawful seizure.
3. Excessive Force Standard
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). When considering a police officer's actions under this “objective reasonableness” standard, the Court must consider the circumstances of the particular case, including the severity of the crime committed, whether the subject posed an immediate threat to the safety of the police officer or others, and whether the subject was actively resisting arrest or attempting to evade arrest, id. at 396, and the Court must focus on the moment that the force is employed, Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996).
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.'” Ray, 781 F.3d at 101 (quoting Tennessee v. Garner, 471 U.S. 1, 89 (1985). “An efficient lawful arrest of a resisting suspect that causes de minimis injuries does not constitute excessive force.” Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017). Redding v. Boulware, 501 Fed.Appx. 238, 243 (4th Cir. 2012) (“We conclude that the force used by the officers was only so much as was necessary to effect the arrest and, therefore, was not objectively unreasonable.”).
a. Analysis
The video footage shows that the attempted arrest between Smith and Plaintiff lasted less than one minute in its entirety, and Plaintiff was on the ground approximately 30 seconds. (Dkt. No. 23-7.) Plaintiff asserts that he “was walking away from Defendant Smith when he[] was detained and slammed into the ground.” (Dkt. No. 24 at 13.) He appears to assert that by “slamm[ing]” Plaintiff to the ground and holding him there, Smith used excessive force in violation of Plaintiff's constitutional rights. Defendants contend that Smith's “actions did not constitute excessive force.” (Dkt. No. 23 at 14.) According to Defendants, “Plaintiff posed an immediate threat to Deputy Smith and to public safety as he was threatening violence and yelling expletives,” he was “on trespass notice from the property that he was visiting,” and he was “clearly resisting arrest as Defendant Smith approached Plaintiff.” (Id. at 13-14.)
Here, the Graham balancing analysis does not weigh in Smith's favor. With respect to the first factor, the evidence indicates that Plaintiff had committed a misdemeanor before Smith brought Plaintiff to the ground and continued to hold him by the neck. 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.”). Smith appears to instigate the arrest only after Plaintiff refuses Smith's repeated requests to allow him to drive Plaintiff home and refuses to walk away. As to the second factor, it is disputed whether Plaintiff was an immediate threat to anyone prior to the use of force. While Defendants assert “Plaintiff posed an immediate threat to Deputy Smith and to public safety as he was threatening violence and yelling expletives,” the parties have presented conflicting evidence on this issue. Thus, the undersigned construes this factor in Plaintiff's favor.
As for the third factor, while Plaintiff's conduct, in backing away from Smith, could be construed as resisting arrest, the video shows that as soon as Plaintiff is on the ground, he is compliant and immediately says multiple times that he will stop. Even after that point, Smith continues to firmly hold Plaintiff by the neck, pin him on the ground, and yell at him for the next 30 seconds. See Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (“[F]orce justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.”); Reid v. W. Virginia State Police, No. 2:21-cv-00647, 2022 WL 17083399, at *4 (S.D. W.Va. Nov. 18, 2022) (“'[T]he reasonableness of force employed can turn on a change of circumstances during an encounter lasting only a few seconds,' and when the justification for a use of force is eliminated, the use of force must cease.” (quoting Waterman, 393 F.3d at 481)). Smith then releases Plaintiff without ever arresting him, despite initially indicating that was the reason for pinning him on the ground.
In short, a reasonable jury could find that Smith used force out of anger and frustration, and not because he reasonably believed Plaintiff posed an immediate threat to anyone's safety or because he reasonably believed Plaintiff was actively resisting arrest throughout the use of force. See Newkirk, 240 F.Supp.3d at 435 (denying summary judgment on excessive force claim; “A reasonable jury viewing the video of the incident could find that Mr. Enzor used force out of anger, frustration, and retaliation for her speech, and not because he reasonably believed Mrs. Newkirk posed an immediate threat to Mr. Enzor's safety or because he reasonably believed that she was actively resisting arrest or attempting to evade arrest or that she was likely to do so.”). Defendants' assertion that Plaintiff was threatening individuals with violence immediately prior to the use of force and actively resisting arrest throughout the incident are facts subject to dispute. See Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 901 (4th Cir. 2016) (“Noncompliance with lawful orders justifies some use of force, but the level of justified force varies based on the risks posed by the resistance.”).
Further, given the foregoing evidence, Plaintiff's de minimis injuries do not preclude his excessive force claim. See Smith v. Murphy, 634 Fed.Appx. 914, 917 (4th Cir. 2015) (explaining that “the severity of the injury resulting from the force used has always been but one consideration in determining whether force was excessive” and “[f]inding no support for [d]efendants' contention that suffering only de minimis injuries bars one from asserting a Fourth Amendment excessive force claim[ ]”) (citation and quotation marks omitted); Jones v. Buchanan, 325 F.3d 520, 532 (4th Cir. 2003) (“[O]fficers using unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen, do not act in an objectively reasonable manner and, thus, are not entitled to qualified immunity.”); cf. Pegg, 845 F.3d at 120 (no excessive force where plaintiff “admit[ted] that he resisted arrest” and defendant “applied no more force than necessary to overcome that resistance”). In short, because there are genuine issues of material fact, Smith should be denied summary judgment on Plaintiff's excessive force claim.
Likewise, the foregoing issues of material fact as to Plaintiff's excessive force claim preclude granting Smith summary judgment on the basis of qualified immunity. See Hembree v. Branch, No. 3:17-cv-485-FDW, 2020 WL 1042247, at *19 (W.D. N.C. Mar. 3, 2020) (denying summary judgment on excessive force claim; “This genuine dispute of material fact precludes summary judgment. This material factual dispute also makes it impossible for the Court to determine that qualified immunity applies.”).
Here, the undersigned notes that, as Defendants suggest, Plaintiff's response brief creates some confusion as to whether he seeks to assert any § 1983 claims against L.C. Knight in addition to Smith. (Dkt. No. 24 at 1, 12-13; 25 at 2-3.) As an initial matter, the Complaint clearly only alleges § 1983 claims against Smith. (Dkt. No. 1-1 at 5.) Further, there is no respondeat superior liability for a § 1983 claim, and Plaintiff offers no argument as to how Knight violated his constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). (“Government officials may not be held liable [under § 1983] for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”); Clark v. Md. Dep't of Pub. Safety & Corr. Servs., 316 Fed.Appx. 279, 282 (4th Cir. 2009) (stating that “the principles of respondeat superior have no application to § 1983 claims”). Accordingly, Knight is entitled to summary judgment as to any § 1983 claims alleged against him.
C. Plaintiff's State Law Claims
In addition to Plaintiff's § 1983 claims, the Complaint alleges state law claims against “Defendants” for gross negligence and recklessness, false imprisonment, intentional infliction of emotional distress, and defamation. (Dkt. No. 1-1 at 5-8.) In their Motion, Defendants argue that they are entitled to immunity to these claims under the South Carolina Tort Claims Act (“SCTCA”). (Dkt. No. 23 at 4-7.) They further argue Plaintiff's claims for false imprisonment, intentional infliction of emotional distress, and defamation fail on the merits. (Dkt. No. 23 at 910.) The undersigned considers these arguments in turn.
1. Immunity under SCTCA
Defendants assert that they are provided immunity under section 15-78-70 of the SCTCA because Smith and Sheriff Knight acted within the scope of their official duties during the events alleged. (Id.) In support, Defendants cite the Complaint's allegation that “Smith was at all relevant times acting under the color of state law and in the course and scope of his duties as agent for the Department.” (Dkt. Nos. 1-1 at 3; 24 at 6.) 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 recognizes that he “has not named the DCSD as a defendant in its action.” (Dkt. No. 24 at 4.) Plaintiff asserts that “Smith acted with actual malice,” such that he is not immune under the SCTCA. (Dkt. No. 24 at 4.) He further argues that in “Knight's role, he had the responsibility for the management and operation of DCSD's deputies and the torts they commit under SCTCA,” and therefore, he is appropriately named as a Defendant for the state law claims. (Id. at 7.) However, he also asserts that Knight was “acting outside the scope of [his] official duties.” (Id. at 4.)
As an initial matter, there is no evidence indicating Knight acted with actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. Nor has Plaintiff presented any evidence indicating Knight otherwise acted outside the scope of his official duties. Indeed, the only evidence in the case that expressly involves Knight is the SLED report stating that Knight, as the Sheriff of DCSD, requested SLED investigate the incident at issue. (Dkt. No. 23-4 at 2.) Based on the foregoing, the undersigned recommends Knight, as a governmental employee, is immune from Plaintiff's SCTCA claims under S.C. Code Ann. § 15-78-70. He should therefore be granted summary judgment as to all state law claims asserted against him. To the extent Plaintiff wishes to hold DCSD responsible for any state law claims, he should have named this governmental entity as a defendant.
As for Smith, the undersigned agrees that, for the reasons discussed supra section B.3.a, a jury could find that Smith acted with malice and intent to harm in his conduct and therefore, he is not immune from liability under § 15-78-70. Outside of immunity, Defendants offer no arguments for dismissal of Plaintiff's state law claims for gross negligence and recklessness, and the undersigned recommends Smith be denied summary judgment as to this claim. (Dkt. No. 23 at 9.). See Raquay Eddie v. City of Whiteville et. al., No. 7:18-cv-120-BO, 2020 WL 1165773, at *4 (E.D. N.C. Mar. 10, 2020) (“The Court has determined that the federal excessive force claim survives summary judgment. Therefore, the state law claims of negligence and assault and battery survive as well.”).
2. Failure to State a Claim
As an initial matter, because the undersigned has found that probable cause existed for Plaintiff's arrest for trespass, see supra section B.2.a, there is no basis to find that Smith's conduct amounts to false imprisonment under South Carolina law. See Law v. S.C. Dep't of Corr., 629 S.E.2d 642, 652 (S.C. 2006) (finding false imprisonment claim failed as a matter of law where probable cause existed for the underlying arrest). Smith should therefore be granted summary judgment as to this claim.
With respect to Plaintiff's claim for intentional infliction of emotional distress, Defendants argue that Smith's actions “cannot be viewed as intentional infliction of emotional distress.” (Dkt. No. 23 at 10.) Plaintiff argues that the evidence in the record supports his claim here. (Dkt. No. 24 at 11.) Here, even assuming reasonable minds could differ on whether Smith's conduct was sufficiently “outrageous,” Plaintiff has failed to show any evidence of severe emotional distress. See Hansson v. Scalise Builders of S.C., 650 S.E.2d 68, 72 (S.C. 2007) (in assessing claim for intentional infliction of emotional distress at summary judgment, the court must determine whether “ reasonable minds could differ as to whether [the] conduct was sufficiently ‘outrageous'” and “whether [the] resulting emotional distress was sufficiently ‘severe'”). Accordingly, Smith should be granted summary judgment on Plaintiff's claim for intentional infliction of emotional distress. See Davis v. Hinson, No. 3:07-cv-904-JFA, 2007 WL 9753167, at *4 (D.S.C. Dec. 26, 2007) (granting summary judgment on claim for intentional infliction of emotional distress where “plaintiff has failed to show any evidence of severe emotional distress”).
Finally, Defendants argue that Plaintiff has failed to sufficiently establish a cause of action for defamation under South Carolina law, asserting “it is unknown what statements were made by the Defendants.” (Dkt. No. 23 at 9-10.) While the Complaint does not allege any specific defamatory statements, Plaintiff indicates that the following statement from Smith to Plaintiff during the incident constitutes defamation: “You want to act like a man, harassing these people . . .” (Dkt. No. 24 at 12 n.9.) To establish defamation under South Carolina law, Plaintiff must show: “(1) a falseand defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Erickson v. Jones Street Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006) (citation omitted).
South Carolina courts typically include “falsity” in stating the elements of defamation. However, as the court noted in Jeter v. Allstate Insurance Co., No. 7:15-cv-1458-TMC, 2016 WL 7115912, at *4 (D.S.C. Aug. 22, 2016), a private individual claiming defamation as to a matter that is not of public concern “has no duty to plead or prove falsity during his case-in-chief[.]” Id. at *12, n.4 (quoting Parrish v. Allen, 656 S.E.2d 382, 392 (S.C. Ct. App. 2007)). Truth is an affirmative defense as to which the defendant has the burden of proof unless the statement involves a constitutional issue. Id.
Here the alleged defamatory statement was spoken, making Plaintiff's claim one of slander. “Slander is actionable per se when the defendant's alleged defamatory statements charge the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession.” Goodwin v. Kennedy, 552 S.E.2d 319, 322-23 (S.C. Ct. App. 2001). Whether a statement is actionable per se is a matter for the court to determine. McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 852 (S.C. Ct. App. 2010) (citing Erickson, 629 S.E.2d at 664). When a statement is considered actionable per se, defendant is presumed to have acted with common law malice, and the plaintiff is presumed to have suffered general damages. Id. When the statement is not actionable per se, “the plaintiff must plead and prove both common law malice and special damages.” Id. “Common law malice means the defendant acted with ill will toward the plaintiff, or acted recklessly or wantonly, i.e., with conscious indifference of the plaintiff's rights.” Erickson, 629 S.E.2d at 665.
Upon careful review, the undersigned does not find that Smith's statement to Plaintiff that he “want[s] to act like a man, harassing these people” constitutes slander per se. Further, Defendants have presented evidence that Smith reasonably believed Plaintiff committed trespass and that the complainants did not welcome Plaintiff's continued presence near their property. Because the statement at issue is not slander per se and Plaintiff has not presented any allegations or evidence of special damages to support his defamation claim, summary judgment should be granted to Smith on this claim.
Based on the foregoing, the undersigned recommends summary judgment be denied as to Plaintiff's claim against Smith for gross negligence and recklessness. However, Plaintiff has failed to sufficiently establish any other state law claims against Smith, and he is therefore entitled to summary judgment as to Plaintiff's claims for false imprisonment, intentional infliction of emotional distress, and defamation. Additionally, Knight should be granted summary judgment as to Plaintiff's state law claims pursuant to S.C. Code Ann. § 15-78-70.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Dkt. No. 23) be GRANTED IN PART AND DENIED IN PART. Defendant Knight is entitled to summary judgment on all claims asserted against him, and Defendant Smith is entitled to summary judgment on Plaintiff's § 1983 unlawful seizure claim and state law claims for false imprisonment, intentional infliction of emotional distress, and defamation. However, summary judgment should be denied to Defendant Smith with respect to Plaintiff's § 1983 excessive force claim and state law claim for gross negligence and recklessness.
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).