Opinion
No. 1:99CV130
August 30, 2000.
Michael Lee King, King Stockton, Salisbury, NC, for plaintiff.
G. Michael Barnhill, W. Clark Goodman, Patrick T. Gillen, Womble, Carlyle, Sandridge Rice, Charlotte, NC, for defendants.
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the Memorandum and Recommendation of United States Magistrate Judge Max O. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, the undersigned referred the Defendants' motion for summary judgment to the Magistrate Judge for a recommendation as to disposition. Because the Memorandum and Recommendation was filed approximately two weeks prior to the beginning of the trial calendar, Plaintiff's counsel was notified that the time within which to file objections was shortened and any objections to the Memorandum and Recommendation should be filed no later than Sunday, August 27, 2000, via the drop box for filing at the United States Courthouse in Charlotte, North Carolina. Counsel did not file objections within this time; however, objections were transmitted via facsimile to the chambers of the undersigned between approximately 4:00 p.m. and 4:30 p.m. on August 28, 2000. Despite in an abundance of caution, the undersigned has conducted a de novo review of the recommendation and finds that the Defendants' motion for summary judgment should be granted. 28 U.S.C. § 636(b); Fed.R.Civ.P. 72.
I. STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party, here the Plaintiff. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Thus, the Defendants as the moving parties have the initial burden to show a lack of evidence to support Plaintiff's case. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If this showing is made, the burden then shifts to the Plaintiff who must convince the Court that a triable issue does exist. Id. Such an issue will be shown "if the evidence is such that a reasonable jury could return a verdict for the [Plaintiff]." Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id. Moreover, in considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the Plaintiff, as the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
II. STATEMENT OF FACTS
This action stems from the Plaintiff's warrantless arrest on July 4, 1996, after being stopped while driving his father's truck in Spindale, North Carolina. The Plaintiff testified at his deposition that after having been stopped by the officers, he got out of the truck and the arresting officers told him to put his hands on the vehicle and his face down on the hood. Exhibit C, Excerpts from the Deposition of Sterling Wilkerson, attached to Defendants' Motion for Summary Judgment, at 17. As he did so, he heard someone call his name, causing him to turn his head to look up. Id., at 17-18. When Plaintiff turned his head, the officer moved Plaintiff's leg out from under him and pushed him to the ground, causing his right hand to skid across the asphalt road. Id. One of the officers put his knee on the Plaintiff's back and handcuffed him. Id. After being handcuffed, he was lifted to his feet. Id., at 28. Other than the officer's knee being placed on Plaintiff's back, he was not hit, kicked or struck. Id. Plaintiff testified there was no physical abuse used and he could not recall any verbal abuse. Id.
Plaintiff was taken to the local detention facility at which point he noticed that one of the fingers on his right hand was swollen and painful. Id. However, Plaintiff did not report this to anyone at the jail because he felt nothing would be done. Id., at 36.
The Plaintiff also testified that, in his opinion, he was stopped on the day in question because Robin Spence had called the local police to complain that he was speeding and "running everybody off the road." Id., at 65. According to the amended complaint, Spence was a deputy clerk of court who disliked the Plaintiff due to past dealings with him over child support payments. Plaintiff also testified that he could not say that his arrest occurred because he is African American. Id. He did admit, however, that he may have been speeding prior to the arrest. Exhibit 3, Excerpts from the Deposition of Sterling Wilkerson, attached to Plaintiff's Response to Defendants' Motion for Summary Judgment, at 58. At the time of the stop, he asked one of the officers why he had been pulled over but could not recall the officer's answer. Id., at 68. The officers found a machete in the truck. Id.
It does not appear that the officer involved in the incident was deposed; however, he has provided an affidavit. Defendant Hester was a Deputy Sheriff for Rutherford County at the time of the incident. Exhibit A, Declaration of Eric Hester, attached to Defendant's Motion, at ¶ 1. He was in a marked patrol car traveling westbound on the Highway 74 By-Pass when he saw a white pick-up truck in his rearview mirror which was approaching him at a high rate of speed and was darting in and out of traffic. Id., at ¶¶ 2, 4. When the truck got closer to the patrol car, it rapidly slowed down and came alongside of the patrol car. Id., at ¶ 5. Hester looked over at the occupant and noticed that he was not wearing his seatbelt. Id. Hester determined to follow the truck due to his observations. Id., ¶ 6. At about the same time, another vehicle approached him with its lights flashing and the driver was pointing at the Plaintiff as if to alert the officer to him. Id. Hester activated his overhead blue lights, but the truck did not stop. Id. He saw the driver reach down towards the floorboard and then Hester turned on his siren. Id. The driver still did not yield, causing Hester to notify his dispatcher; however, about 3/10 of a mile later, the truck did stop after turning onto a side road. Id.
Hester approached the Plaintiff and asked for his license, but Plaintiff said he did not have it with him. Id., at ¶ 7. Hester asked Plaintiff's name and inquired as to why he had been driving so recklessly. Id. However, Plaintiff replied that he had not done anything wrong. Id. As alleged in the Plaintiff's complaint, Hester testified that at about this time Robin Spence pulled up behind the officer's car. Id., at ¶ 8. Hester left the Plaintiff and walked back to her vehicle at which point she advised Hester that she had earlier alerted him to the Plaintiff by flashing her lights because the Plaintiff had passed her speeding at about 100 miles per hour and had almost run her off the road. Id. Spence told Hester that she knew the Plaintiff because she had collected child support from him in the past. Id.
Hester then went back to the Plaintiff's truck and told him to exit the vehicle. Id., at ¶ 9. Although Plaintiff refused to do so at first, he did comply; Hester then told him to place his hands on the hood of the truck. Id. Hester then advised the Plaintiff he was under arrest because Hester concluded that Plaintiff, who had been cursing at the officer, had become disorderly. Id. When he told the Plaintiff to put his hands behind his back, Plaintiff did not do so; instead Hester grabbed his right wrist to bring it behind his back for handcuffing. Id. At that point, the Plaintiff pulled away from the officer who then pushed him to the ground by tripping his leg with the officer's foot. Id. According to Hester, he kept hold of the Plaintiff's right hand throughout this procedure. Id. Officer Thrift of the Rutherfordton Police Department arrived at the scene at this time and assisted in handcuffing the Plaintiff and then lifting him onto his feet. Id., at ¶ 10. After the arrest, the officers found a machete behind the console of the truck. Id., at ¶ 12.
Plaintiff was charged with resisting an officer, failure to stop, disorderly conduct, reckless driving, failure to wear a seat belt and carrying a concealed weapon. In the state district court, Plaintiff was acquitted of resisting an officer and failure to stop and the district attorney dismissed the charge of disorderly conduct. In superior court, Plaintiff was acquitted of reckless driving and failure to wear a seat belt, but convicted of carrying a concealed weapon. Although no date is provided concerning his acquittals, he was sentenced for carrying a concealed weapon on December 4, 1997. On January 5, 1998, his motion for appropriate relief was denied.
The medical record discloses that the Plaintiff saw Dr. Davis on July 5, 1996, for follow up on an injury to Plaintiff's left hand which occurred about three months earlier and which had led to a worker's compensation claim. Medical Record, dated July 5, 1996, attached to Davis Affidavit. Dr. Davis noted that Plaintiff had completely recovered from that injury without any permanent impairment. Id. He also noted that
[t]he patient is here because he punched a wall yesterday injuring his right hand. This is swollen though he does not feel that it is as severely swollen as the left was.
X-ray Exam: Reveals a fracture of the neck of the 5th metacarpal with 50 or 60 degrees of angulation. I have recommended that this be manipulated the same as the opposite one. Because of financial considerations he is going to discuss it with his mother first.
Id. Three days later, the physician placed the Plaintiff's finger in a splint which was to be maintained for five weeks. Id. August 25, 2000.
Subsequent to the presentation of this information in the Defendants' motion, the Plaintiff deleted the allegation in his Amended Complaint which claimed the officer had broken his finger during the arrest. Plaintiff's Voluntary Strikingof Certain Allegations of Complaint, filed Defendants have provided an affidavit from John E. Davis, M.D., who treated the Plaintiff on July 5, 1996, the day after the incident at issue. Exhibit D, Declaration of John E. Davis, M.D., attached to Defendants' Motion. Dr. Davis averred that during or shortly after treating the Plaintiff on that date he created a medical record, a copy of which is attached to the affidavit. Id., at ¶ 2. That record has been maintained by his office in the regular course of business and the information contained in the record was provided to the doctor by the Plaintiff. Id. Dr. Davis stated that if called to testify, he would do so in accordance with his affidavit and the medical record. Id., at ¶ 1.
III. DISCUSSION
Defendants have moved for summary judgment on all remaining claims, i.e., Plaintiff's allegations pursuant to 42 U.S.C. § 1983 that he was subjected to false arrest, an unconstitutional seizure, malicious prosecution and excessive force.
The warrantless arrest and unconstitutional seizure are the same claim because the arrest and seizure occurred simultaneously. Wells v. Bonner, 45 F.3d 90, 94 n. 1 (5th Cir. 1995).
"To succeed on an action for false arrest [pursuant to 42 U.S.C. § 1983], [Plaintiff] must demonstrate that his arrest was not supported by probable cause." North Carolina v. McCurry, 175 F.3d 1016 (table), 1999 WL 152622 **1 (4th Cir. 1999) (citing Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1994)). If the Plaintiff does not show that probable cause was lacking, summary judgment in favor of the officer is appropriate. Rowland v. Perry, 41 F.3d 167, 169, 174 (4th Cir. 1994); accord, United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996) (The determination of probable cause is an issue of law.). "A warrantless arrest, like the one in this case, requires that the arresting officers possess probable cause to believe that the person has committed or is committing a felony offense. . . . T o determine whether probable cause existed, courts look to the totality of the circumstances known to the officers at the time of the arrest." United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir. 1995) (citing Illinois v. Gates, 462 U.S. 213, 230-31 (1983)).
Even under Plaintiff's version of the events here, Defendant Hester had probable cause to arrest him. Kelly v. Bencheck, 107 F.3d 866 (table), 1997 WL 76041 (4th Cir. 1997). The Plaintiff testified he was arrested because Robin Spence reported to the police that he had been "running everybody off the road." Defendant Hester averred that Spence approached him with flashing lights, pointed to the Plaintiff, and followed Hester to the point of the stop at which time she identified the Plaintiff as having been speeding. Indeed, Hester had already seen the Plaintiff speeding behind his patrol car. The fact that the Plaintiff was later acquitted of some of the charges made subsequent to his arrest does not alter the determination of whether probable cause existed at the time thereof. Id. The record, as now amplified, shows that the Plaintiff's § 1983 claims based on unconstitutional seizure stemming from his warrantless arrest must be dismissed.
There appears to be some confusion as to the undersigned's prior rulings on the Defendants' motion to dismiss. That motion was predicated on Defendants' argument that the Plaintiff was collaterally estopped from bringing this action because he was ultimately convicted of one of the charges pressed by Hester. In addressing the Plaintiff's objections to the Magistrate Judge's Memorandum and Recommendation on the motion to dismiss, the undersigned noted Plaintiff's position that the initial stop of his vehicle was without probable cause. Memorandum and Order, filed December 17, 1999, at 8 addressing Plaintiff's Objections, filed October 28, 1999 at 1-2 ("Defendant Hester had no probable cause at the time the stop was made."). Indeed, in the Defendants' motion to dismiss, the same language was used to address the Plaintiff's contention. Memorandum of Law in Support of Motion to Dismiss, filed August 17, 1999 at 7 ("Wilkerson argued that there was no probable cause for the traffic stop such that his conviction should be set aside."). The undersigned did not implicitly rule that an officer must have probable cause to effect a traffic stop but merely addressed the Plaintiff's objections.
The next issue is whether the claim pursuant to § 1983 for malicious prosecution in connection with the charges which were dismissed or for which the Plaintiff was acquitted survive summary judgment. The Fourth Circuit has recently clarified that "[w]hat is conventionally referred to as a `§ 1983 malicious prosecution' action is nothing more than a § 1983 claim arising from a Fourth Amendment violation." Lambert v. Williams, F.3d 2000 WL 1099953 **2 (4th Cir. 2000). As applied to the facts of this case, the only Fourth Amendment violation on which such a claim may be based is the Plaintiff's warrantless arrest. In the context of the remedy provided by § 1983, malicious prosecution requires a showing that the initiation or maintenance of a proceeding against the plaintiff by the defendant was without probable cause to support it and a termination thereof occurred in favor of the plaintiff. Id., at **3. A malicious prosecution claim brought pursuant to § 1983 is "a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort." Id.
The undersigned has previously ruled that no such claim may be stated in connection with the search of the Plaintiff's vehicle because he was convicted of carrying a concealed weapon. Memorandum and Order, filed December 17, 1999.
The purpose of incorporating common law principles into § 1983 is not to create new causes of action in addition to those already found within the Constitution and federal statutes covered by § 1983. Rather, federal courts incorporate the common law into § 1983 in recognition of the fact that § 1983 was designed to create a "special species of tort liability," founded on rights originating in the Constitution and certain federal statutory law. . . . What we termed a "malicious prosecution" claim in Brooks [v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996)], is simply a claim founded on a Fourth Amendment seizure that incorporates elements of the analogous common law tort of malicious prosecution-specifically, the requirement that the prior proceeding terminate favorably to the plaintiff. It is not an independent cause of action.
Id., at **4-5 (citations omitted). Because the undersigned has concluded that the warrantless arrest and seizure of the Plaintiff was supported by probable cause, and thus, constitutional, the claim for malicious prosecution also must fall because the seizure "was not violative of the Fourth Amendment." Id., at **4.
The remaining claim is Plaintiff's excessive force cause of action. Plaintiff testified that his hand grazed the asphalt at the time that he was pushed down, but the officers did not physically abuse him during the arrest. Defendants presented an affidavit from the Plaintiff's physician who treated him the day after the incident in which the doctor averred that the Plaintiff reported the injury to his right hand occurred after he put his hand through a wall. Plaintiff has presented nothing in opposition to this affidavit except his pleading in which he withdraws the allegation that the officer broke his finger. Although the Defendants as the moving parties have the initial burden to show a lack of evidence to support Plaintiff's case, when this showing is made, the burden then shifts to the Plaintiff who must convince the Court that a triable issue does exist. Shaw, supra. Such an issue will be shown "if the evidence is such that a reasonable jury could return a verdict for the [Plaintiff]." Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id.
The undersigned concludes that the Plaintiff has failed to show that a triable issue of fact exists as to the injury to his hand. In making this conclusion, the undersigned has not made any credibility assessment, a matter which is strictly for the jury. However, the Plaintiff has failed in any manner to refute the affidavit from the treating physician; indeed, the withdrawal of the allegation that his finger was broken during the arrest is tantamount to an admission that the same did not occur. "Summary judgment in favor of a defendant in a civil action is appropriate when, after adequate time for discovery and upon motion, the plaintiff `fails to make a showing sufficient to establish the existence of an element essential to [the plaintiff's] case, and on which [the plaintiff] will bear the burden of proof at trial." LeBlanc v. Cahill, 153 F.3d 134, 148 (4th Cir. 1998). Such is the case here.
Because the claims against Defendant Hester have all been dismissed, the claims against the remaining Defendants also fail.
IV. ORDER
IT IS, THEREFORE, ORDERED that the Defendants' motion for summary judgment is hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiff's motion for a writ of habeas corpus ad testificandum is hereby DENIED as moot.
IT IS FURTHER ORDERED that the pretrial conference scheduled for August 29, 2000, is hereby canceled and the Clerk of Court is directed to so notify the parties by sending counsel copies of this Memorandum and Order and Judgment by facsimile forthwith.
A Judgment is filed herewith.
For the reasons set forth in the Memorandum and Order filed herewith, IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Defendants' motion for summary judgment is ALLOWED, and this matter is hereby DISMISSED WITH PREJUDICE in its entirety.