Opinion
3:22-CV-00106-CDL-CHW
01-19-2024
TIDEOUS LEE, Plaintiff, v. Detective GEE, Sergeant SILVERBERG, Detective BAILEY, Defendants.
Proceedings Under 42 U.S.C. §1983 Before the U.S. Magistrate Judge
ORDER
CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE
In this civil rights action under 42 U.S.C. § 1983, pro se Plaintiff Tideous Lee, currently a prisoner at the Riverbend Correctional Facility in Milledgeville, Georgia, brings Fourteenth Amendment claims against three officers of the City of Monroe Police Department for use of excessive force during his arrest on December 12, 2020. Those officers, Defendants Gee, Bailey, and Silverberg, have moved to dismiss Plaintiff's complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Because Plaintiff's complaint, construed in connection with video evidence submitted by the Defendants, fails to establish that the force used by Defendants was constitutionally excessive, it is RECOMMENDED that Defendants' Motion to Dismiss (Doc. 18) be GRANTED.
I. Defendants' Video Evidence May Be Considered on Motion to Dismiss
Defendants' Motion to Dismiss is based not only on the allegations in Plaintiff's complaint, but also on video evidence from body cameras worn by Officers Gee and Bailey during the arrest. Ordinarily, a motion to dismiss for failure to state a claim under Rule 12(b)(6) must be based on the allegations in the complaint, which must be accepted as true and construed in the light most favorable to the Plaintiff. See, e.g., Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). “To survive a motion to dismiss, a complaint must ‘state a claim to relief that is plausible on its face,' meaning it must contain ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id., (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
In certain circumstances, however, courts have applied a doctrine of “incorporation by reference” to allow consideration of video evidence extrinsic to the complaint itself. This doctrine is summarized in Baker v. City of Madison, Ala.:
Under the incorporation-by-reference doctrine, a court may consider evidence attached to a motion to dismiss without converting the motion into one for summary judgment if (1) “the plaintiff refers to certain documents in the complaint,” (2) those documents are “central to the plaintiff's claim,” and (3) the documents' contents are undisputed. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002); Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Evidence is “undisputed” in this context if its authenticity is unchallenged. Horsley, 304 F.3d at 1134.67 F.4th 1268, 1276 (11th Cir. 2023). In Baker, the court applied the incorporation by reference doctrine to allow consideration of video evidence from an officer's body camera footage to find that a plaintiff had failed to state a claim of excessive use of force during an arrest.
The circumstances that allowed the consideration of the video evidence in Baker are present in this case. Plaintiff refers to the video evidence in his complaint, stating, “No evidence, in video form, supported Gee's stop of my vehicle.” (Compl., Doc. 1 at 3). The video evidence is central to Plaintiff's claim, as it documents Plaintiff's arrest in its entirety. The authenticity of the video evidence has not been disputed.
II. Defendants' Video Evidence Contradicts Plaintiff's Allegations
The video footage provided by Defendants contradicts much of Plaintiff's complaint.
In his complaint, Plaintiff alleges:
On December 12, 2020, I was pulled over by Det. Gee of the Monroe City Police Dept. without probable cause though Det. Gee alleged proper lane maintenance was not being observed. No evidence, in video form, supported Gee's stop of my vehicle. At that time Det. Bailey went to the passenger side of my vehicle and immediately started to verbally assault the passenger in the car; Louise Taylor. Before she could respond to Det. Bailey's commands, Bailey physically started assaulting her and threw her to the ground.
As soon as I complied with Det. Gee to get out of the vehicle I was placed in handcuffs and physically assaulted by both Det. Gee and Det. Bailey as Sgt. Silverberg arrived and escalated the situation. Det. Gee's “Officer Report for Incident 10MO19560,” plainly states that he repeatedly
punched me in the face with his closed fists. During this attack, in which I was restrained, Det. Bailey assaulted me by using his stun gun. The incident required the “EMS” to be called to treat to my injuries, 1) cut above my left eyebrow, and 2) severe neck pains that still persist.
After a search of Louise Taylor by Cpl. Knight it was determined that she had no narcotics on her person.
This procedure of racism and systematic profiling resulted in me suffering from neck spasms, headaches, routine vision problems and a constant numbness in my right arm.(Compl., Doc. 1, pp. 3-4). The video evidence shows, by contrast, that: (1) Defendants did have probable cause to initiate the stop of Plaintiff's vehicle and to arrest him after the stop; (2) Defendants did not physically assault the passenger, Taylor, or throw her to the ground; (3) Plaintiff was not physically assaulted when he was removed from the car; and (4) Plaintiff's only injury resulted when he fell from the back seat of the police vehicle while attempting to struggle free from Officer Gee. The video evidence further shows that each use of force by the Defendants was in response to Plaintiff's active and continuous resistance.
The body camera footage first makes it clear that officers had probable cause to stop Plaintiff. The footage shows that Officer Gee was driving the patrol vehicle and Officer Bailey was in the passenger seat. Both officers' body camera footage shows that at approximately 11:30 p.m. on December 12, 2020, the officers observed the vehicle driven by Plaintiff take a wide right turn at a stop sign and swerve into the opposite lane of traffic, narrowly avoiding oncoming vehicles as he did so. This failure to maintain the proper lane constituted probable cause to initiate a traffic stop.
After Plaintiff stopped, Officer Bailey approached the passenger side of the vehicle while Officer Gee remained behind the vehicle on the driver's side. Officer Bailey asked the driver of the vehicle, Plaintiff, for his driver's license. While Plaintiff was producing his driver's license, the female passenger took out a cigarette packet from her right pocket while with her left hand she stuffed an object into the space between the passenger seat and the center console. Officer Bailey asked the passenger's name, but she did not respond and instead lit a cigarette and began to smoke. The passenger's erratic behavior shown in the video confirms that she appeared to be intoxicated. Officer Bailey asked her step out of the vehicle, observing that she “just dumped a napkin with something.”
As the passenger was climbing out of the vehicle, Officer Bailey asked Plaintiff if he had “any problem with us checking out the car to see what she put in here.” Plaintiff responded, “Go ahead, you saw I didn't do it. No, she just asked me to take her to Cook Street. That's what I did.” Officer Bailey searched the passenger area and found a pipe wrapped in a napkin in the space between the seat and the console. The passenger was handcuffed and directed to sit down on the curb or pavement. Plaintiff was also directed to get out of the car and had to exit through the passenger side because the driver's side door would not open. Officer Gee told Plaintiff that he was “not being detained,” but he handcuffed him and directed him to sit on the curb alongside the passenger.
Officer Gee then went back to the car to continue searching the space between the seat and the center console. While Officer Gee was searching the vehicle, Plaintiff stood up and began to pace around. While he was pacing, Plaintiff dropped an object on the ground. Officer Bailey directed Plaintiff to sit down again, but Plaintiff was not compliant. Officer Gee approached to assist Officer Bailey in forcing Plaintiff to sit down while Officer Bailey picked up the object Plaintiff had dropped, a green cigarette packet. Officer Bailey opened the packet and stated, “All right, we've got crack.” Plaintiff then said, “I'm going to sit down,” but instead he turned away and began to run, barefoot and handcuffed, across the street into an adjacent property.
Officer Bailey pursued, followed by Officer Gee. Plaintiff fled for approximately ten seconds, through a neighboring yard towards a wooded area. Just before reaching the tree line Plaintiff dropped to the ground and began screaming. Based on Plaintiff's reaction and footage of Officer Gee later retrieving taser wires from the area, it is apparent that Officer Gee deployed a taser that struck Plaintiff, although the video does not clearly show Plaintiff being struck and the Defendants do not concede that he was.
Officer Bailey then led Plaintiff back across the street to the patrol vehicle and directed Plaintiff to “get in the car.” When Plaintiff resisted, Officer Gee went to the driver's side of the vehicle to attempt to pull Plaintiff into the vehicle while Officer Bailey attempted to push him in from the passenger side. As Plaintiff continued to resist and struggle with Officer Bailey, Officer Bailey deployed the taser again, on “drive stun,” making contact with Plaintiff twice. Plaintiff screamed and began flailing his legs. Officer Bailey deployed the taser two more times, stating that Plaintiff had just kicked him and shouting repeatedly, “Quit kicking the officer.” Officer Bailey's video shows Plaintiff kicking his legs, but it is not clear whether Officer Bailey was ever struck. Plaintiff continued to struggle and shouted, “I can't breathe.” After more than two minutes of struggling, Plaintiff pushed himself out of the driver's side of the vehicle and fell, headfirst, onto the sidewalk. Both Officer Gee's video and Officer Bailey's video show that Plaintiff's fall was caused by his own struggling, and that neither officer pushed or pulled Plaintiff out of the vehicle. When he sat up, Plaintiff had a visible wound on the left side of his face above the eye. There is no indication in the video footage that any officer punched or struck Plaintiff at any time, but Officer Gee states in the incident report that he did punch Plaintiff during the struggle:
In the incident report, submitted as an exhibit to Defendants' Motion to Dismiss, Officer Bailey states that he was kicked “multiple times,” one time “so hard it knocked his magazine and tourniquet off of his vest onto the ground.” (Doc. 18-1, p. 5).
After Lee landed a right leg kick to the midsection of Det Bailey so hard it knocked Det Bailey back knocking his pistol magazine out of his vest, I began delivering closed fist strikes to the right side of Lee's face in an attempt to get him to stop kicking Det Bailey.
(Doc. 18-1, p. 11).
After he fell from the vehicle, Plaintiff was allowed to rest on the sidewalk for more than three minutes, after which the officers again directed Plaintiff to get in the vehicle. Plaintiff initially complied, but then began to resist again, and Officer Bailey deployed the taser on “drive stun” for a fifth time. When the officers attempted to shut the door, Plaintiff said, “OK, I'm getting in. I'm in,” but immediately attempted to force his way out of the vehicle. During the ensuing struggle, Officer Bailey or another officer again deployed the taser, striking Plaintiff as many as six times. Officer Bailey was then able to close the door on the driver's side, but Plaintiff continued to resist while three officers attempted to close the door from the other side. Approximately ten minutes after Plaintiff was finally secured, an ambulance arrived and an EMT checked Plaintiff's wound, noting a “minor laceration” that did not require immediate treatment. Plaintiff was then taken to the jail, where he was booked without incident.
During the course of the stop and arrest, several officers arrived to assist. It is not clear from the videos which officer is Officer Silverberg.
III. Defendants' Use of Force Was Reasonable in the Circumstances
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
Plaintiff's claims of excessive force during his arrest arise from the Fourth Amendment right to be free from unreasonable seizures. Draper v. Reynolds, 369 F.3d 1270, 1277 (11th Cir. 2004). In considering the use of force, courts examine the “totality of circumstances,” particularly “(1) the need for the application of force, (2) the relationship between the need and amount of force used, and (3) the extent of the injury inflicted.” Id., 1277-78 (quoting Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir.2002)). In evaluating the need for the use of force, courts must pay “careful attention to facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate risk to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). Courts must keep in mind that “the right to make an arrest ‘necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.'” Draper, 369 F.3d at 1277 (quoting Graham, 490 U.S. at 386). Courts must therefore allow “for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.
The video evidence shows that Defendants used reasonable force under the circumstances and that each use of force was in response to Plaintiff's continued failure to comply and his physical resistance. The officers had probable cause to initiate the stop after Plaintiff was observed crossing over the center line into oncoming traffic. When the passenger was observed stuffing an object into space between her seat and the center console, she was directed to leave the vehicle and Plaintiff gave the officers consent to search the vehicle. Plaintiff was handcuffed and detained during the search but was not placed under arrest. The video shows that Plaintiff continued to pace around in spite of instructions to stay seated, and while he was pacing he was observed dropping a cigarette pack on the ground. Plaintiff's detention became an arrest when Officer Bailey picked up the cigarette pack and saw that it contained crack cocaine. As the moment Officer Bailey announced that he had found cocaine, Plaintiff took flight.
The first use of force was Officer Gee's use of a taser, which caused Plaintiff to stop running and drop to the ground. The crimes for which Plaintiff was subject to arrest, reckless driving and possession of crack cocaine, were not violent or serious crimes, and there is nothing in pleadings or the video to suggest that Plaintiff posed an immediate danger to the officers or others. Nevertheless, some use of force was warranted because Plaintiff was attempting to evade a lawful arrest by flight. As the Supreme Court observed in Graham, “the 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 195. Such physical coercion might include the use of a taser, “a non-deadly weapon commonly carried by law enforcement” that “administers an electric shock to a suspect by shooting two small probes into the suspect's body,” which “permits the officer to incapacitate a suspect from a modest distance.” Fils v. City of Aventura, 647 F.3d 1272, 1276 n. 2 (11th Cir. 2011). Although temporarily incapacitating, in ordinary circumstances the electric shock does not cause serious or lasting injury. As such, the use of a taser is “not categorically unconstitutional” and “can be appropriate in a wide array of situations.” Charles v. Johnson, 18 F.4th 686, 701 (11th Cir. 2021). In the absence of a taser, officers might have been required to tackle Plaintiff or use physical force to stop his flight, which could have resulted in more serious injuries. See Charles, 18 F.4th at 699 (“It is obvious that a police officer will be authorized to tackle an arrestee under some circumstances); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (“The single use of a taser gun may well have prevented a physical struggle and serious harm to either Draper or Reynolds”). Plaintiff does not allege that he suffered any injury as a result of Officer Gee's initial use of the taser. Under the totality of the circumstances, therefore, Plaintiff has not shown that the use of the taser to stop his flight was objectively unreasonable.
In extraordinary circumstances, the use of the taser can place a subject at risk of serious harm. In Bradley v. Benton, the court held that the use of a taser amounted to deadly force where the fleeing suspect was standing atop an eight-foot wall. 10 F.4th 1232, 1243-44 (11th Cir. 2021). The suspect's precarious position created a substantial risk of death or serious bodily harm. After becoming incapacitated from the taser, the suspect fell from the wall, broke his neck, and died. The court denied qualified immunity, finding as a matter of clearly established law that the use of potentially deadly force was not warranted where the suspect was unarmed and was not suspected of committing a violent crime. As noted in the discussion of qualified immunity below, such circumstances are not present in this case.
The remaining uses of force occurred when the officers attempted to place Plaintiff in the back of the patrol vehicle for transport to the jail. At this stage, Plaintiff began actively resisting, resulting in a struggle that lasted several minutes. During this struggle, Plaintiff resisted by hooking his legs under the door of the vehicle, kicking at the officer behind him, squirming out of the vehicle on the opposite side and falling on his face, attempting to force his way out of the vehicle after he finally appeared to comply, and pushing against the door with his legs as officers tried to close it. During this struggle, the officers used the taser in “drive stun” mode several times to attempt to obtain compliance. In drive stun mode, sometimes also called “dry stun” mode, “the weapon is pressed against a person's body and the trigger is pulled resulting in pain (a burning sensation) but the ‘drive stun' mode does not disrupt muscle control.” Hoyt v. Cooks, 672 F.3d 972, 975 n. 4 (11th Cir. 2012). Each use of the taser was in response to Plaintiff's continued physical resistance, and Plaintiff did not cease resisting in response to any of the stuns. Although Plaintiff's reaction indicates that the drive stuns were painful, he does not allege that he sustained any physical injury from the taser, and nothing in the video indicates that he was injured.
Plaintiff also contends that Officer Gee punched him in the face several times during the struggle in the back of the patrol car. Although the video evidence is insufficient to confirm or refute this allegation, Officer Gee admits in his own report, also referenced in the complaint and attached to Defendants' motion to dismiss, that he did so. (Doc. 18-1, p. 11). This punching is comparable to the use of the taser's “drive stun” as an attempt to obtain compliance while Plaintiff was kicking Officer Bailey and refusing to be placed in the vehicle. There is nothing in the complaint or the video to indicate that Plaintiff was injured by these punches.
During the time frame when this punching is alleged to have occurred, it is too dark in the video to see what Officer Gee is doing. In the audio there is no sound to suggest that Plaintiff is being punched or is reacting to being punched, although the audio does clearly record Plaintiff's reactions to the use of the taser's “drive stun” function.
The only injuries Plaintiff alleges are a cut above his left eyebrow and neck pains. The video clearly shows that the cut above Plaintiff's left eyebrow was sustained due to Plaintiff's own actions when he squirmed out of the vehicle and fell face first onto the pavement. The video shows that no officer was touching Plaintiff at the time he fell. When he sat up after falling, he can be seen to have sustained a minor laceration, which ultimately required no treatment. Any neck pain Plaintiff alleges would also have resulted from this fall, as none of the other uses of force alleged or shown in the video would have had an impact on his neck.
In the totality of the circumstances, the officer's use of force was reasonable and proportional to the need to effect Plaintiff's arrest. Each additional use of force was necessitated by Plaintiff's own escalation of the situation by continuing and increasing resistance. As such, Plaintiff's complaint, considered in light of the video evidence, is not sufficient to show that he suffered a constitutional violation.
IV. Defendants Are Entitled to Qualified Immunity
Even if the Defendants' alleged use of force could be construed as excessive in the totality of the circumstances, Defendants are entitled to qualified immunity because Plaintiff has not shown that their conduct violated clearly established law. “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). There is no dispute that Defendants were acting within their discretionary authority as police officers in effecting the arrest of Plaintiff.
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.
To overcome qualified immunity in the excessive force context, which is highly fact-specific, a plaintiff must either show case law that stakes out a bright line in factual terms or show that the defendant's “conduct was so far beyond the hazy border between excessive and acceptable force that [the defendant] had to know he was violating the Constitution even without caselaw on point.” Smith v. Matttox, 127 F.3d 1416, 1419 (11th Cir. 1997).
Given the highly fact-specific nature of excessive force cases, it is no surprise that there is no binding case law that is directly on point to the facts in this case. As to the initial use of force, Defendant Gee's use of the taser to stop Plaintiff while fleeing, there is no precedent in the Eleventh Circuit that clearly establishes whether it is appropriate or not to use a taser to stop a fleeing subject who poses no immediate danger to the officers or to others. This case, nevertheless, is well within the “hazy border” between cases such as Draper, in which the officers used a taser to effectuate the arrest of a subject who was “hostile, belligerent, and uncooperative,” 369 F.3d at 1278, and Fils, in which a taser was used against a subject who had only used vulgarity in a statement about the officer's conduct. 647 F.3d at 1272. This case is certainly not comparable to Bradley, in which the taser was used against a fleeing subject who was unarmed and not suspected of committing a violent, but in a situation where the use of the taser amounted to deadly force given the subject's position at the top of an eight-foot wall. 10 F.4th at 1243. Although there is no case law directly on point, the weight of the case law, as explained above, leads to the conclusion that this use of force was reasonable in the totality of the circumstances.
As to the later uses of force, during the prolonged struggle to get Plaintiff restrained in the patrol vehicle, there is case law that is more on point. As to that struggle, this case is comparable to Hoyt, in which the officers used a taser on “drive stun” as many as twelve times during a struggle to handcuff a subject who refused to allow himself to be handcuffed. 672 F.3d at 975-76. The court did not determine whether the arrest was reasonable or not, but held that the officers conduct did not “rise to the level of ‘obvious clarity,' which would require all reasonable officers to inevitable conclude that the force used was unlawful.” Id. at 980. Likewise in this case, given the totality of the circumstances the force used lies on the acceptable side of the “hazy border,” and the officers are entitled to qualified immunity.
Accordingly, it is RECOMMENDED that Defendants' Motion to Dismiss (Doc. 18) be GRANTED. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
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 ORDERED.