United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
Chadwick Wayne Johnson, proceeding pro se and in forma
pauperis,  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. See R & R [ECF No. 80].
Review of the R & R
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).
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).
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).
“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.
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).
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).
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.
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
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. 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.
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.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 & ...