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Johnson v. Kinard

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

March 8, 2018

Chadwick Wayne Johnson, Plaintiff,
Joe Kinard, Deputy of the Darlington County Sheriff's Department, Defendant.



         Plaintiff Chadwick Wayne Johnson, proceeding pro se and in forma pauperis, [1] brings this excessive force action pursuant to 42 U.S.C. § 1983 against Defendant Joe Kinard. The matter is before the Court for review of the Report and Recommendation (“R & R”) of United States Magistrate Judge Kaymani D. West, who recommends granting in part and denying in part Defendant's motion for summary judgment.[2] See R & R [ECF No. 80].

         Legal Standards

         I. Review of the R & R

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, 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 [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         II. Summary Judgment

         Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) (“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.”). “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). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party, Reyazuddin, 789 F.3d at 413, but the Court “cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).

         Moreover, “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). “A dispute of material fact is ‘genuine' if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party.” Seastrunk v. United States, 25 F.Supp.3d 812, 814 (D.S.C. 2014). A fact is “material” if proof of its existence or nonexistence would affect disposition of the case under the applicable law. Anderson, 477 U.S. at 248.

         At the summary judgment stage, “the moving party must demonstrate the absence of a genuine issue of material fact. Once the moving party has met his 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. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992) (internal citation omitted). Summary judgment is not warranted unless, “from the totality of the evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the [C]ourt believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment as a matter of law.” Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         III. Excessive Force

         The Fourth Amendment prohibition against unreasonable seizures bars the use of excessive force on free citizens, whether it be “in the course of an arrest, investigatory stop, or other ‘seizure.'” Graham v. Connor, 490 U.S. 386, 395 (1989). The Court must apply an “objective reasonableness” standard in determining whether an officer has used excessive force when seizing a free citizen. E.W. by & through T.W. v. Dolgos, __ F.3d __, __, 2018 WL 818303, at *4 (4th Cir. Feb. 12, 2018). “The question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). This objective inquiry is based on the totality of the circumstances, and it requires an examination of the officer's actions in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation-subjective motives, intent, and/or propensities are irrelevant. Dolgos, 2018 WL 818303, at *4. A non-exhaustive list of factors to consider include: (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 he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Graham, 490 U.S. at 396). “Evaluating the reasonableness of the officer's actions ‘requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'” Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at 396).


         Plaintiff brings this § 1983 action for excessive force against Defendant Joe Kinard, a deputy employed by the Darlington County Sheriff's Office (“DCSO”). Both parties agree Plaintiff was detained and tased multiple times at a convenience store in Hartsville, South Carolina, around midnight on December 12, 2014. However, as the Magistrate Judge explains, the parties materially disagree as to what led to Plaintiff being tased and how many times he was tased.

         Plaintiff alleges that his wife drove him to the store, that he bought cigarettes and reentered the passenger side of the car, that several vehicles “rapidly approached, ” and that approximately three to five people exited them and ordered Plaintiff to exit his car with his hands up. Plaintiff claims he was inexplicably tased three times by three different officers despite immediately exiting the car with his hands raised and back facing them. These allegations appear in Plaintiff's verified amended complaint. See ECF No. 26.

         Meanwhile, Defendant contends that he and another officer, Freddie Englebert, observed Plaintiff run back and forth between a trash can in front of the store and quickly enter a nearby parked car. Defendant activated the blue lights of his patrol car, exited it, and asked Plaintiff to exit his vehicle. Plaintiff was “clenching something in his right fist, ” did not respond when Defendant asked him what he was holding, and put his right hand in his pocket when asked to show his hands. Defendant claims he was concerned Plaintiff could have a weapon, so he grabbed Plaintiff's right hand, but Plaintiff began fighting and put a plastic bag containing a white substance in his mouth. Defendant asserts he and Plaintiff went to the ground struggling, and Englebert tased Plaintiff when he “became more combative”; the first tase did not make Plaintiff comply, so Defendant instructed Englebert to tase Plaintiff a second time, which caused Plaintiff to spit out a baggie containing crack cocaine. Plaintiff was then arrested for possession of crack cocaine and taken to jail.[4] These allegations appear in Defendant's affidavit, Englebert's affidavit, and the incident report they prepared. See ECF Nos. 70-2, 70-3, & 70-4.

         Given the factual disputes, the Magistrate Judge recommends denying Defendant summary judgment to the extent that Plaintiff has sued him in his individual capacity, and denying Defendant qualified immunity. See R & R at pp. 5-12. The Magistrate Judge further recommends granting Defendant summary judgment for the claims asserted against him in his official capacity.[5]See Id. at pp. 8-9, 12. Defendant has filed objections to the R & R, and Plaintiff has filed a reply to Defendant's objections. See ECF Nos. 83 & ...

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