United States District Court, D. South Carolina, Florence Division
Paul D. Robinson, Plaintiff,
Officer A. Brown, Defendant.
Bryan Harwell United States District Judge
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.
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. 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.
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).
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
“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,
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
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.
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.”).
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”).
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)