Opinion
Civil Action 6:20-cv-4447-DCC-KFM
09-07-2021
Ronnie Lee Phillips, Plaintiff, v. Joshua P. Campbell, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the defendant's motion for summary judgment (doc. 46). The plaintiff, a former pretrial detainee proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Defendant Joshua P. Campbell (“Dep. Campbell”) is a deputy with the Greenville County Sheriff's Office. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.
The plaintiff is now incarcerated in the MacDougall Correctional Institution, part of the South Carolina Department of Corrections.
PROCEDURAL HISTORY
The plaintiff filed his complaint on December 23, 2020 (doc. 1), and he filed an amended complaint on March 15, 2021 (doc. 20). The defendant filed his answer on May 19, 2021 (doc. 35). The defendant also filed a motion to dismiss the plaintiff's claim against him in his official capacity (doc. 34), which was granted by the Honorable Donald C. Coggins, Jr., United States District Judge, by order dated August 3, 2021 (doc. 57). The defendant filed a motion for summary judgment on July 2, 2021 (doc. 46). By order filed July 6, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately to the defendant's motion (doc. 49). The plaintiff did not file a timely response. As the plaintiff is proceeding pro se, an order was entered providing additional time in which to file his response (doc. 62). The plaintiff filed his response in opposition to summary judgment on August 26, 2021, but provided no affidavits or other evidence to support his allegations (doc. 64).
BACKGROUND AND FACTS PRESENTED
This action arises from the plaintiff's arrest on August 30, 2020 (doc. 20, p. 4). In his amended complaint, the plaintiff alleges the following: Dep. Campbell and other officers confronted him at a Greenville County Walmart store for shoplifting. After he was handcuffed, Dep. Campbell struck him from behind, causing the plaintiff to fall and hit his face on the asphalt parking lot. Because his hands were handcuffed behind his back, he was unable to catch himself, resulting in injuries of “an open gash (laceration) above his left eye socket, a broken nose, and a wide bruise across [his] lower back area” (id., p. 6). He alleges that Dep. Campbell recorded the incident with his body camera, as did other bystanders with their cell phones. He further alleges that he was taken to the emergency room, where he received x-rays, treatment, and pain medication for his eye laceration, broken nose, and back bruise (id.). For relief, the plaintiff requests monetary damages for his pain and suffering, hospital bills, and emotional damage (id.).
In his answer, Dep. Campbell admits that he arrested the plaintiff, but denies that he used excessive force (doc. 35). In support of his motion for summary judgment (doc. 46), Dep. Campbell provides various attachments including his own sworn affidavit and body camera footage of his encounter and arrest of the plaintiff (doc. 46-2, def. aff. & ex. A) and the affidavit of Walmart Asset Protection Associate Shannon Rivera and security camera footage from the store (doc. 46-3, Rivera aff. & ex. A). This evidence reveals that while Dep. Campbell was at the Walmart in response to an unrelated shoplifting incident, Ms. Rivera advised that another individual (later identified as the plaintiff), was in the store and suspected of shoplifting. The plaintiff was wearing a Walmart vest usually worn by employees, and was traveling through the store on an electric cart for handicapped shoppers. As the plaintiff began leaving the store with the stolen items, Ms. Rivera recognized him as a past shoplifter on trespass notice from the store. She called him by his name and told him to stop with the stolen items, but he continued out of the store (doc. 46-3, Rivera aff. ¶ 5). Another Walmart associate notified Dep. Campbell, who then ran to the parking lot and located the plaintiff, who had abandoned the electric cart and was on foot. Dep. Campbell attests as to what occurred next:
6. As I approached Plaintiff, he looked in my direction. I ordered him to stop, to which he responded “No, ” and attempted to walk away from me. I notified him that I was detaining him, but he continued to move away from me. Fearing that he was preparing to flee or fight me, I gripped both of his wrists behind his back and pushed him toward a nearby truck to isolate him from possible avenues of escape. At this time, I managed to make an emergency call for backup and instructed Plaintiff to stop resisting.
7. Plaintiff's resistance to my commands and to my grip on his wrists was intensifying. I issued clear commands for Plaintiff to stop resisting and warned him that I would relocate him to the ground if he continued to resist me. Plaintiff continued to resist, so I executed a controlled takedown to gain control of him.
8. During this controlled takedown, Plaintiff's head incidentally struck the pavement, which resulted in a small laceration above his left eye. I handcuffed Plaintiff at this time and refrained from any further use of force. I attempted to assist Plaintiff back to a standing position; however, Plaintiff refused to stand. I notified the dispatcher on duty that I required medical personnel on the scene to tend to Plaintiff and continued to assist Plaintiff back to a standing position.
9. Because it was hot outside, I wanted to remove Plaintiff from the hot asphalt, but could not do so alone. Shortly thereafter, Deputy Miller and two other deputies arrived at the scene to assist me in moving Plaintiff to a patrol car to cool down and be treated by medical personnel. Plaintiff apologized to me in the presence of Deputy Miller, stating “I'm sorry I run.”
10. Shortly thereafter, an ambulance arrived and medical personnel evaluated and treated Plaintiff. I issued Plaintiff a ticket for shoplifting and chose not to transport him to Greenville County Detention Center. Plaintiff refused to be transported to a medical facility by EMS for further medical treatment.(Doc. 46-2, Campbell aff. ¶¶ 6-10). Ms. Rivera provides the same account in her affidavit, and she attests further that she detected a strong odor of alcohol emanating from the plaintiff and that, during Dep. Campbell's takedown, the plaintiff “appeared to fall in a very uncoordinated way due to intoxication” (doc. 46-3, Rivera aff. ¶¶ 5-15). She also stated:
[T]he level of force employed by Deputy Campbell appeared to be consistent with other uses of force by law enforcement that I have witnessed during my experience working in loss prevention roles at Walmart and elsewhere. I did not perceive any intention on the part of Deputy Campbell to cause injury to [the plaintiff] nor did feel that Deputy Campbell used more force than was needed to take [the plaintiff] to the ground.(Id. ¶ 12).
The video footage (with audio) from Dep. Campbell's body camera shows him approach the plaintiff and command him to stop. A struggle ensues, during which the footage is briefly blurred and obscured by the close contact between Dep. Campbell and the plaintiff. The view then clears with the plaintiff on the ground with his face on the pavement. As the plaintiff raises his head, he is bleeding over his left eye. At this point, Dep. Campbell handcuffs the plaintiff and attempts to help him stand. No. other force is seen or heard after the handcuffs are applied. Another officer arrives to assist, and a Walmart associate retrieves the stolen items from the parking lot (doc. 46-2, def. aff. ex. A).
In support of his motion for summary judgment, Dep. Campbell also submitted the plaintiff's relevant medical records from Greenville Memorial Hospital (doc. 46-4, nos. 1-254). These records show that the plaintiff was seen on August 29, 2020, for alcohol intoxication (id., no. 217); on August 30, 2020 (the day of the incident) at 6:50 a.m. for alcohol intoxication (id., no. 176); and again at 9:48 p.m. for alcohol intoxication and a laceration on his left eyebrow, for which he received sutures, and a nose laceration (id., nos. 126, 128, 143); and again on September 1-2, 2020, for alcohol abuse and chemical intoxication (id., no. 11). A summary for this last visit notes that the plaintiff's head wounds were “clinically well ... with sutures intact and seem to be healing after two days of placement” (id.). The records make no mention of a broken nose or a back bruise.
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment 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). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “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.” Id.
Section 1983
The plaintiff has brought his claim against Dep. Campbell pursuant to Section 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under Section 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Excessive Force
The plaintiff makes a claim of excessive force, alleging that after being handcuffed, Dep. Campbell struck him, causing him to fall face-first onto the asphalt without the ability to catch his fall (doc. 20, pp. 5-6). Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable . . . seizures, ” and must be judged by reference to the Fourth Amendment's “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 394-95 (1989). The Fourth Amendment's “reasonableness” inquiry is whether the officers' actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an “allowance for the fact that police officers are often forced to make split-second” decisions about the amount of force necessary in a particular situation. Id. at 396-97. The court utilizes the following factors in evaluating the totality of the facts and circumstances of excessive force claims: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. at 396 (citing Tennessee v. Gardner, 471 U.S. 1, 8-9 (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); see also Redding v. Boulware, 501 Fed.Appx. 238, 242-43 (4th Cir. 2012) (holding that the force used by deputies to handcuff a resisting suspect, which included a controlled takedown of the suspect and breaking suspect's arm, was not objectively unreasonable).
The plaintiff claims that after he was handcuffed, Dep. Campbell struck him in the back, causing him to fall and hit his face on the asphalt, since he was unable to catch himself with his hands cuffed behind his back. However, as set out above, Dep. Campbell has provided his sworn affidavit and corroborating body camera footage showing that prior to being handcuffed (1) the plaintiff resisted arrest, (2) he was then taken to the ground and subdued by Dep. Campbell, and (3) that he suffered the eye laceration during the takedown. Only after the takedown did Dep. Campbell gain control of the plaintiff and place handcuffs on him. No. force is described or depicted by this evidence after the handcuffs were applied. Further, Ms. Rivera, an experienced retail loss prevention officer, attests that the force used by Dep. Campbell was consistent with other uses of force employed by law enforcement that she has witnessed, and she did not perceive any intent by Dep. Campbell to injure the plaintiff. A plaintiff may not survive summary judgment merely relying on his unsubstantiated allegations in the face of sworn testimony to the contrary. See Pronin v. Johnson, 628 Fed.Appx. 160, 161 (4th Cir. 2015) (“[A] party cannot withstand summary judgment by relying solely on his own self-serving allegations unsupported by any corroborating evidence.”)(citation omitted). As the plaintiff has only responded to the sworn affidavits of Dep. Campbell and Ms. Rivera with his own unsworn allegations, the uncontradicted record reveals that Dep. Campbell did not use unreasonable force when arresting the plaintiff. Further, the video evidence from Dep Campbell's body camera reveals that the plaintiff's allegations - being knocked down and injured only after being handcuffed - are simply not true. When a “video is referenced as integral to the complaint, disputes between the allegations of the complaint and what is plain from the video are resolved in favor of the video.” Thompson v. Badgujar, C. A. No. 20-1272-PWG, 2021 WL 3472130 (D. Md., August 6, 2021) (citing Fayetteville Inv'rs v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)).
Moreover, the plaintiff has failed to allege or present any evidence that he suffered serious physical injury as a result of the arrest. The body camera video and relevant medical records show that the plaintiff suffered a small laceration over his eye. The medical records show that this wound had been treated and was healing when he visited the hospital two days later for alcohol intoxication, with no other injuries noted. Indeed, despite two separate visits to the hospital soon after the incident, the medical records make no mention of a broken nose or back bruise as allegedly suffered by the plaintiff. Also, while the plaintiff alleges that he suffered emotional damage, such injuries are not recoverable here. Case law has consistently held that there is no federal constitutional right to be free from emotional distress, and hence, there is no liability under Section 1983 regarding such claims. Simmons v. Smith, C. A. No. 3:10-908-HMH-JRM, 2012 WL 2935369, at *7 (D.S.C. July 2, 2012)(citing Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985) and Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir. 1989)), R&R adopted by 2012 WL 2935349 (D.S.C. July 18, 2012). See 42 U.S.C. § 1997e(e) “(No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act . . . .”). Accordingly, Dep. Campbell is entitled to summary judgment.
Qualified Immunity
Dep. Campbell also argues that he is entitled to qualified immunity in his individual capacity. Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not “violate clearly established rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity is lost if an official violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id. To determine whether qualified immunity applies, a district court must determine whether a plaintiff has alleged the deprivation of an actual constitutional right at all and whether the particular right was clearly established at the time of the alleged violation. See Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (per curiam); Wilson v. Layne, 526 U.S. 603, 609 (1999). As discussed above, the plaintiff has not demonstrated that the defendant violated his constitutional rights. Accordingly, Dep. Campbell is entitled to qualified immunity here.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the court recommends that the defendant's motion for summary judgment (doc. 46) be granted.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).