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Robinson v. Brown

United States District Court, D. South Carolina, Florence Division

September 19, 2016

Paul D. Robinson, Plaintiff,
v.
Officer A. Brown, Defendant.

          ORDER

          R. Bryan Harwell United States District Judge

         Plaintiff, Paul D. Robinson, currently incarcerated at Kirkland Reception and Evaluation Center in Columbia, South Carolina and proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 alleging excessive force during the course of his arrest following a high speed chase in a stolen car. Plaintiff alleges that he was lying on his stomach on the ground with his hands behind his head when Defendant Officer Brown kicked him in the face two times. Plaintiff also alleges that immediately after he was kicked, he was shot while face down with his hands behind his head. Plaintiff alleges he will never walk the same and seeks $25 million dollars in damages or his freedom. [Complaint, ECF No. 1 at 5]. Officer Brown maintains that his firearm discharged accidentally as he was attempting to holster his weapon. On December 22, 2015, Officer Brown moved for summary judgment [ECF No. 74] arguing that the accidental discharge of his firearm did not amount to a Fourth Amendment violation and that he is entitled to qualified immunity.

         This matter is before the court with the Report and Recommendation (“R&R”) [ECF No. 86] of Magistrate Judge Kaymani D. West filed on February 19, 2016.[1] The Magistrate Judge recommended that Officer Brown's motion for summary judgment be granted and this case dismissed based on her recommendation that no Fourth Amendment violation occurred and that, alternatively, Officer Brown is entitled to qualified immunity. Plaintiff timely filed objections to the R&R on March 7, 2016. Officer Brown filed a reply to Plaintiff's objections on March 24, 2016.

         Standard of Review

         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

         The right to de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate's proposed findings and recommendations.” Id. Moreover, in the absence of objections to the R & R, the Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of objections, the Court must “‘satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Summary Judgment Standard

“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) (2010). “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 . . .; 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). When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         "Once the moving party has met [its] burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show that there is a genuine issue for trial." Baber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The nonmoving party may not rely on beliefs, conjecture, unsupported speculation, or conclusory allegations to defeat a motion for summary judgment. See Baber, 977 F.2d at 875. Rather, the nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Discussion

         Where an excessive force claim arises in the context of an arrest, the claim should be characterized as one invoking the protections of the Fourth Amendment and its prohibition against unreasonable seizures of the person. Graham v. Connor, 490 U.S. 386, 395 (1989). Thus, “all 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, 490 U.S. at 395.

         “A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, ‘by means of physical force or show of authority, ' terminates or restrains his freedom of movement.” Brendlin v. California, 551 U.S. 249, 254 (2007) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). But a “seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement. . . .” Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989). Instead, an individual is “seized” under the Fourth Amendment “only when there is a governmental termination of freedom of movement through means intentionally applied.” Id. at 597 (emphasis in original); see also Watson v. Bryant, 532 F. App'x 453, 457 (5th Cir. 2013) (“The Supreme Court and this circuit have long held that Fourth Amendment violations occur only through intentional conduct.”); Brown v. City of Charleston, No. 2:12-CV-01865-DCN, 2013 WL 4436398, at *4 (D.S.C. Aug. 15, 2013) (“[T]he court must still decide whether the officer's actions were willful rather than accidental.”).

         The Magistrate Judge concluded that Officer Brown accidentally discharged his weapon, wounding both himself and Plaintiff. Relying on multiple circuit and district court opinions holding that an accidental shooting does not amount to a violation of the Fourth Amendment, the Magistrate Judge concluded that Plaintiff was not seized for purposes of the Fourth Amendment. See e.g., Guerra v. Montgomery Cty., Md., 118 F. App'x 673, 675 (4th Cir. 2004) (“The district court presumably believed that the shooting itself did not violate the Fourth Amendment because it was accidental.”); Glasco v. Ballard, 768 F.Supp. 176, 180 (E.D. Va. 1991) (“[A] more appropriate understanding of the case law, as well as the history of the Fourth Amendment, suggests that a wholly accidental shooting is not a ‘seizure' within the meaning of the Fourth Amendment.”); Hicks v. Leake, 821 F.Supp. 419 (W.D. Va. 1992) (holding that because driver was not object of police chase, there was no “seizure” necessary to show violation of Fourth Amendment rights); Rucker v. Harford Cty., Md., 946 F.2d 278, 282 (4th Cir.1991) (“[W]e still would conclude that given the exigencies of the situation, his accidental shooting of Rucker would not have constituted the kind of ‘oppressive' abuse of governmental power, see Daniels, 474 U.S. at 331, against which substantive due process gives protection.”); Watson v. Bryant, 532 F. App'x 453, 457 (5th Cir. 2013) (“In the absence of evidence showing that Bryant intended to use deadly force, we must conclude that the negligent shooting here did not itself violate Watson's Fourth Amendment rights.”); McCoy v. City of Monticello, 342 F.3d 842, 848 (8th Cir. 2003) (finding that though facts established a seizure occurred, the officer who accidentally shot a motorist acted objectively reasonable, entitling him to qualified immunity); Pleasant v. Zamieski, 895 F.2d 272, 276-77 (6th Cir. 1990) (accidental shooting did not violate the Fourth Amendment); Leber v. Smith, 773 F.2d 101, 104-05 (6th Cir. 1985) (holding that plaintiff's unreasonable-seizure claim failed as a matter of law in an accidental shooting case and, therefore, declining to reach qualified immunity); Dodd v. City of Norwich, 827 F.2d 1, 7 (2d Cir. 1987) (reversing its decision on rehearing and finding no Fourth Amendment violation or municipal negligence was responsible for “the inadvertent shooting of an already apprehended burglar during a struggle initiated by him in an attempt to disarm the arresting officer and after he had apparently surrendered [when] [t]he shooting was a pure accident”).

         In his objections to the Magistrate Judge's R&R, Plaintiff argues that the “Florence County Police Department of the City of Florence” should not have been dismissed from this lawsuit because Officer Brown was acting in his official capacity. However, as explained in the prior Order dismissing the Florence Police Department and Florence County Sheriff's Department [ECF No. 29], those entities are not “persons” subject to suit under § 1983. See Kane v. Beaufort Cnty. Sheriffs Dept., No. 9:14-508-RMG, 2015 WL 404570, at * (D.S.C. Jan. 29, 2015) ...


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