Opinion
7:20-CV-164 (WLS)
01-27-2022
JOSEPH CHANCE SLATER, Plaintiff, v. SGT JEFFERY SMITH, Defendant.
RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
Pending in this action brought pursuant to 42 U.S.C. § 1983 is Defendant's Motion for Summary Judgment. (Doc. 21). Plaintiff was notified of the filing of Defendant's Motion for Summary Judgment, advised of his obligations under the law, and directed to respond thereto within thirty (30) days. (Docs. 23, 25). Plaintiff has not filed a response to the Defendant's motion.
Plaintiff filed this action in August 2020, and the Court ordered him to file a recast Complaint. (Docs. 1, 4). After initial review, Plaintiff's excessive force claim was allowed to proceed against Defendant Smith. (Doc. 10).
FACTUAL ALLEGATIONS
According to Plaintiff's recast Complaint, Plaintiff was driving his vehicle on November 17, 2019, and was pursued by Defendant Smith, a Thomas County Sheriff's Deputy, who was apparently driving his patrol vehicle. (Docs. 6, 10). Smith followed Plaintiff into the state of Florida, and attempted to pull Plaintiff over. Plaintiff called Thomas County 911 dispatch to verify that Smith was in fact a deputy, and the dispatcher verified Smith's identity as an officer and told Plaintiff to pull over and park. Despite the dispatcher telling Deputy Smith that Plaintiff was fearful and not to hit Plaintiff, Plaintiff alleges that Smith intentionally hit Plaintiff's truck with his vehicle.
SUMMARY JUDGMENT STANDARD
Defendant filed a Motion for Summary Judgment on May 4, 2021. (Doc. 21). Pursuant to Rule 56 of the Federal Rules of Civil Procedure, 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).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1).
As the party moving for summary judgment, Defendant has the initial burden to demonstrate that no genuine issue of material fact remains in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). The movant “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record, including pleadings, discovery materials, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3). Defendant has supported his Motion for Summary Judgment with his affidavit, video recordings of the incident underlying the recast Complaint, Plaintiff's deposition testimony, and reports accompanying Plaintiff's arrest. (Docs. 21-3 - 21-6).
In his Motion for Summary Judgment, Defendant asserts that he is entitled to the protection of qualified immunity, in that Plaintiff has failed to establish a Fourth Amendment violation. He further asserts that the Eleventh Amendment bars Plaintiff's claim to the extent that it is brought against Defendant in his official capacity. Although Plaintiff has not responded to Defendant's motion, a party's failure to respond to a motion for summary judgment does not automatically result in judgment for the moving party by default. See Trustees of Cent. Pension Fund of Int'l Union of Operating Engineers & Participating Employers v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039-40 (11th Cir. 2004); cf. Rossi v. Fulton County, Ga., 2013 WL 1213243, n.8 (N.D.Ga. 2013). Rather, the Court must consider the merits of the motion. Trustees of Cent. Pension Fund, 374 F.3d at 1039.
Qualified immunity
Defendant Smith asserts that he is entitled to the protection of qualified immunity regarding Plaintiff's claim brought against him in his individual capacity. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
Inasmuch as qualified immunity is an affirmative defense, the “public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002). “To determine whether an official was engaged in a discretionary function, ” federal courts look to see whether the challenged actions “fell within the employee's job responsibilities.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004) (internal citation omitted).
Defendant's actions taken within his role as a law enforcement officer establish that he was acting within his discretionary authority. “Discretionary authority” includes “all actions of a governmental official that (1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994). These “objective circumstances . . . compel the conclusion that [Defendants'] actions were undertaken pursuant to the performance of [their] duties and within the scope of his authority.” Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir. 1992). “[W]here . . . it is undisputed that government officials were acting within their discretionary authority, the burden is on the plaintiff to demonstrate that qualified immunity is not appropriate.” Hicks v. Ferrero, 241 F. A'ppx 595, 597 (11th Cir. 2007).
“To [show that qualified immunity is not appropriate], the plaintiff must demonstrate (taking all the facts in the light most favorable to [him]) the following two things: (1) that the defendant violated [his] constitutional rights, and (2) that, at the time of the violation, those rights were clearly established”. Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017).
Defendant's affidavit
In his affidavit, Defendant Smith states that he was a Thomas County Deputy Sheriff on patrol on November 17, 2019, in his patrol vehicle, when he was notified by a 911 dispatcher that Plaintiff had called 911 and reported a person in his vehicle threatening him with a gun or a knife. (Doc. 21-3, ¶¶ 3, 5, 6). Defendant Smith observed a vehicle matching the description provided by Plaintiff to the 911 dispatcher, with only the driver visible inside the vehicle. Id. at ¶¶ 8-9. Defendant Smith did not know whether the one person inside the vehicle was Plaintiff or the person who had threatened Plaintiff. Id. at ¶ 9. Smith followed the vehicle, activated the patrol vehicle's emergency lights and siren, and attempted to stop the vehicle. Id. at ¶¶ 10-11. The vehicle pulled to the side of the road, and Defendant Smith came to a complete stop in the patrol vehicle. Id. at ¶ 12. The suspect vehicle then accelerated and began traveling at a high rate of speed. Id. at ¶ 13. Defendant Smith pursued the vehicle, with the vehicle reaching speeds of over 100 mph on public roads and failing to maintain the proper lane. Id. at ¶ 14-16. Although the vehicle slowed down, it did not come to a stop, and the front of the patrol vehicle made contact with the rear bumper of the vehicle, after which contact the vehicle came to a stop on the side of the road. Id. at ¶¶ 20-21. Plaintiff was then arrested and taken into custody by Leon County, Florida deputy sheriffs. Id. at ¶¶ 22, 26. Plaintiff was later charged with fleeing/attempting to elude a police officer, driving while license suspended/revoked and reckless driving. Id. at ¶ 28. Defendant Smith was not informed during the pursuit that Plaintiff was on the phone with a 911 dispatcher. Id. at ¶ 30.
Video evidence
Defendant has submitted two (2) pieces of video evidence in support of his summary judgment motion. (Doc. 21-3, Exh. A and B). Defendant Smith states that both videos, the first from his patrol vehicle's dash camera and the second from his body camera, contain the entirety of the pursuit, all communications between Defendant Smith and dispatch during the pursuit, the use of force incident, and Plaintiff's arrest on November 17, 2019. (Doc. 21-3, ¶¶ 31-32). Defendant Smith states that the videos are true and accurate copies and accurately reflect the events of November 17, 2019, to the best of his recollection. Id. at ¶¶ 33-34, 36.
The video taken by Defendant's dash camera shows Defendant's patrol vehicle following and then in pursuit of a silver Toyota 4 Runner. (Doc. 21-3, Exh. A). During the pursuit, flashing blue lights can be seen and a siren heard. The pursuit took place at night, primarily on two-lane roads. The pursuit lasted approximately ten (10) minutes, during which time the driver of the 4 Runner, later identified by Defendant Smith as Plaintiff, appears to slow down and pull over to the side of the road on two (2) occasions, only to immediately speed back up and continue at what appears to be a high rate of speed. The 4 Runner crosses into the oncoming lane of traffic on several occasions, and at times has its hazard lights flashing. The 4 Runner makes a sharp left turn and then a right turn, and continues on its course away from Defendant in the pursuing patrol vehicle. The 4 Runner abruptly slows down, and the patrol vehicle catches up to the 4 Runner and makes contact with the 4 Runner's back bumper. The 4 Runner then comes to a complete stop. Defendant directs Plaintiff to exit the car, places him in handcuffs and then into the back of the patrol vehicle, until additional officers arrive on the scene. During the pursuit, Plaintiff and Defendant pass several civilian vehicles.
In the second video, recorded by Defendant's body camera, Defendant can be seen driving a patrol vehicle at what appears to be a high rate of speed in pursuit of another vehicle. Defendant's communications with dispatch can be heard, and at no time can the dispatch officer be heard to inform Defendant that Plaintiff is in contact with dispatch or another 911 operator, is in fear of the pursuing officer or person, or is preparing to stop. Defendant does communicate to dispatch that there appears to be only one person in the vehicle he is pursuing. Once other officers arrive on the scene, the rear bumper of Plaintiff's car can be seen, and shows certain indentations. No other damage is visible on Plaintiff's vehicle. The front bumper of Defendant's patrol vehicle can be seen, and no significant damage is visible. Another officer can be heard telling Defendant that officers in the area had been pursuing Plaintiff for the past day or so on charges he was making false calls to the 911 system.
Plaintiff's deposition
Plaintiff's deposition was taken on February 18, 2021. (Doc. 21-6). Plaintiff testified that he was charged with making harassing phone calls to 911 in January 2020, and was incarcerated at the Thomas County Jail between January 2020 and January 2021. Id. at pp. 12-14. Plaintiff testified that on November 17, 2019, at “night time”, his mom's boyfriend was in Plaintiff's vehicle with Plaintiff, threatening him with a knife. Id. at pp. 88, 89. The boyfriend jumped out of the vehicle in Metcalf, Georgia. Id. Plaintiff then called 911 and was connected to a Leon County, Florida operator, who “patches [him] through to Thomas County dispatch”. Id. Defendant Deputy Smith pulls in behind Plaintiff, Plaintiff pulls over and tells the 911 operator that someone posing as a cop tried to rob him two (2) days prior, to which the operator responds “you have the right to keep going”. Id. at p. 88. Plaintiff states that the operator told him she was in contact with Thomas County, who was in contact with Defendant Smith, to convey that Plaintiff is trying to identify whether Defendant is an actual deputy. Id. at p. 89. The operator convinces Plaintiff to pull over and Deputy Smith “slams into me”, after Plaintiff had put his vehicle in park. Id. When asked for the basis of his knowledge that Defendant Smith knew Plaintiff was on the phone with 911 at the time of the pursuit, Plaintiff states that “[i]t's on the video. It's on the video that - it's on his body camera and dash camera, he's in contact with them. And the 911 dispatcher, I could hear - I could hear them talking to him.” Id. at p. 90.
Plaintiff claims to have possibly suffered whiplash as a result of the force of impact from Defendant Smith's patrol vehicle, but has not had follow-up treatment. Id. at pp. 91-92. Plaintiff maintains that as a result of the impact, his vehicle suffered “[s]evere damage. My whole bumper is folded in, and both quarter panels is [sic] folded in.” Id. at p. 97.
Excessive force
In analyzing Plaintiff's claim of excessive force, the Court “begins by identifying the specific constitutional right allegedly infringed by the challenged application of force . . . [A]ll claims that law enforcement officers have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard”. Graham v. Connor, 490 U.S. 386, 394-395 (1989).
In reviewing an excessive force claim, the Court must first determine whether Plaintiff was subjected to the “intentional acquisition of physical control”, or whether there was a “seizure”. Brower v. County of Inyo, 489 U.S. 593, 596 (1989). A seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.' Id. at 597, emphasis in original. Here, Defendant does not contest that a seizure occurred when Defendant Smith, with his patrol vehicle, made contact with Plaintiff's vehicle, which immediately preceded Plaintiff's ultimate detainment. The Court notes that it is enough to establish a seizure “that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Id. at 599.
Secondly, the court must determine whether the force used to secure the seizure was “objectively reasonable”. Scott v. Harris, 550 U.S. 372, 381 (2007). “The question to be decided is whether the officer's actions are objectively reasonable in light of the facts confronting the officer, regardless of the officer's underlying intent or motivation.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).
“Excessive force claims, like most other Fourth Amendment issues, are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.” Saucier v. Katz, 533 U.S. 194, 207 (2000). Application of the reasonableness inquiry “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.” Graham, 490 U.S. at 396. “Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonable proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002); see also Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009) (“[w]e measure the quantum of force employed against these factors - the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether the suspect actively resisted arrest or attempted to evade arrest by flight.”).
Viewing the facts in the light most favorable to Plaintiff as the non-moving party, the facts confronting Defendant Smith at the time the force was used were that Plaintiff had reported to a 911 dispatcher being threatened by someone in his car with either a knife or a gun, and only one individual was visible in Plaintiff's vehicle at the time of the pursuit and stop. Defendant Smith did not know who was driving the vehicle, the victim or the alleged assailant. Plaintiff led Defendant Smith on a high speed chase for approximately ten (10) minutes, slowing down as if to stop on at least two (2) occasions, and then pulling away again. Plaintiff and Defendant passed several civilian vehicles during the pursuit.
Severity of the crime
Under the facts as set out by Plaintiff, Plaintiff had reported to a 911 operator being threatened with a knife or a gun by a passenger. Defendant Smith admits that he was aware that a person, who claimed to be driving a vehicle matching the description of Plaintiff's vehicle, had reported such threats. The facts, viewed in the light most favorable to Plaintiff, clearly show that Plaintiff was driving the suspect vehicle and that he did not pull over when Defendant Smith initiated the traffic stop, with blue lights and siren activated during the pursuit. Moreover, the video evidence, unrebutted by Plaintiff, clearly shows that Plaintiff led Defendant Smith on a high speed chase that involved Plaintiff repeatedly driving into oncoming lanes of traffic, for a duration of approximately ten (10) minutes, placing a threat to Defendant, Plaintiff, bystanders, and other drivers. Cf. Marshall v. West, 559 F.Supp.2d 1224 (M.D.Ala. 2008) (officers not entitled to qualified immunity for PIT maneuver, in part based on facts showing that plaintiff did not try to outrun officers and drove the speed limit, and material questions of fact as to whether defendants properly identified themselves as law enforcement). The severity of the crimes at issue, including a possible assault with a knife or gun, and the apparent flight from an officer and reckless driving, would have led a reasonable officer in Defendant Smith's position to reasonably believe that criminal activity was being or had been committed. See U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (investigatory stop of vehicle justified if supported by reasonable suspicion to believe that criminal activity has occurred or is occurring).
Danger to the officer
Similarly, the chase that Plaintiff initiated “posed a substantial and immediate risk of serious physical injury to others”, and Defendant's actions in attempting to stop the chase by forcing Plaintiff off the road were reasonable. Scott, 550 U.S. at 386. The undisputed facts show that Plaintiff was driving at a high rate of speed, maintaining a significant distance from Defendant's vehicle even during the pursuit, and that Plaintiff drove over lane markers, into the oncoming lane, on several occasions. The pursuit took place primarily on a two-lane road at night. “A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment.” Id.
Flight
Finally, the undisputed facts clearly show that Plaintiff was fleeing and attempting to evade Defendant Smith. Although Plaintiff alleges in his deposition testimony that he had recently been robbed by someone posing as a law enforcement officer and he was fearful Defendant was not in fact a law enforcement officer, Plaintiff has not disputed the facts as shown by the videos and as testified to by Defendant that Defendant was in a marked law enforcement vehicle, with flashing blue lights and siren activated during the pursuit. Although Plaintiff maintains that Defendant was made aware of his concerns regarding Defendant's identity, the undisputed facts show that Defendant established his identity as law enforcement, and the reasonable inference from Plaintiff's deposition testimony is that 911 had informed Plaintiff that the officer was in fact legitimate, telling Plaintiff to pull over. Moreover, the video evidence arguably refutes any indication that Thomas County or another dispatch center conveyed any specific concern to Defendant.
The Court notes that Plaintiff has not established the content of any communication he allegedly heard between 911 and the Defendant, or any communication heard by Defendant. While Plaintiff's deposition testimony is that he informed a 911 operator that he was fearful that Defendant Smith was not in fact an actual law enforcement officer, that the operator initially told Plaintiff he could drive on, and that Defendant Smith knew Plaintiff was on the phone with 911 dispatch, Plaintiff does not establish that Defendant Smith had knowledge that the person driving the vehicle Defendant Smith was pursuing was somehow not a danger or threat.
“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380. The videos, specifically their audio component, do not contain any communication conveying Plaintiff's discussions with a 911 operator. Defendant Smith's affidavit testimony establishes, and Plaintiff has not rebutted, that the video/audio recordings represent the complete communication during Defendant's pursuit of Plaintiff. To this extent, the videos contradict Plaintiff's deposition testimony that dispatch communicated to Defendant that Plaintiff was in contact with a 911 operator and trying to determine whether Defendant Smith was in fact a law enforcement officer.
Other considerations
Certain cases examining the reasonableness of an officer's use of force under the Fourth Amendment also look to factors including “(1) the need for the application of force, (2) the relationship between the need and the amount of force used, (3) the extent of the injury inflicted and, (4) whether the force was applied in good faith or maliciously and sadistically”. Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000); see also Moore v. Gwinnett County, 967 F.2d 1495, 1498 (11th Cir. 1992), Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). To the extent that these factors have not been considered heretofore, the Court notes that Plaintiff has presented no evidence of injury, beyond a possible case of whiplash. To the extent that Plaintiff claims that his vehicle was severely damaged in the incident, the video evidence clearly shows that the damage described by Plaintiff was not present immediately following the traffic stop by Defendant. See Scott, 550 U.S. at 380. Finally, there is no evidence that Defendant Smith applied the force maliciously and sadistically.
The Eleventh Circuit has
held that a police officer's use of force by striking a suspect's car with a patrol car was objectively reasonable where the officer knew the suspect was fleeing from law enforcement officials at a high rate of speed; the suspect failed to respond to blue lights and sirens and gave no indication of stopping the pursuit or slowing down; the officers had been chasing the respondent for an extended period of time; there were several civilian vehicles on the road during the pursuit; and the suspect drove erratically.Clement v. McCarley, 708 F. A'ppx 585, 590 (11th Cir. 2017), citing Sharp v. Fisher, 532 F.3d 1180, 1184 (11th Cir. 2008).
The circumstances described in Clement are identical to those faced by Defendant Smith. Plaintiff has failed to rebut Defendant Smith's showing that he acted reasonably in the use of force against Plaintiff's vehicle, and Defendant Smith is therefore entitled to qualified immunity on Plaintiff's claim brought against Smith in his individual capacity.
Eleventh Amendment immunity
To the extent that Plaintiff brings his claim against the Defendant in his official capacity, the Eleventh Amendment bars Plaintiff's claim. A state is not considered a “person” subject to suit for money damages under § 1983, such that “neither a state nor its officials acting in their official capacities are ‘persons' under § 1983”. Will v. Michigan Dep't. of State Police, 491 U.S. 58 (1989). Thus, a suit brought against a defendant deputy sheriff in his official capacities is in reality a suit against the state and as such is not cognizable under § 1983. Id.; Kinsey v. Thomas, 2021 WL 3116822, n.4 (M.D.Ga. 2021) (CDL) (noting that for purposes of Eleventh Amendment immunity a Georgia county sheriff acted as an arm of the State); Turquitt v. Jefferson County, Ala., 137 F.3d 1285, 1288-89 (11th Cir. 1998) (sheriff and his deputies act as officers of the State when supervising inmates and operating county jails); Scruggs v. Lee, 256 F. A'ppx 229, 231 (11th Cir. 2007) (sheriff's deputies entitled to Eleventh Amendment immunity in their official capacities).
Conclusion
Plaintiff has failed to come forth with sufficient evidence that Defendant acted unreasonably in making contact with Plaintiff's vehicle, and Defendant is therefore entitled to qualified immunity as to Plaintiff's claim brought against him in his individual capacity. Additionally, Plaintiff's claim, to the extent that it is brought against Defendant in his official capacity, is barred by the Eleventh Amendment. Accordingly, it is the recommendation of the undersigned that the Defendant's Motion for Summary Judgment be GRANTED.
Objections
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to the recommendations herein, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.