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Waters v. Lake City Police ofc. John Stewart

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

January 29, 2019

THOMAS BRADFORD WATERS, Plaintiff,
v.
LAKE CITY POLICE OFC. JOHN STEWART, LAKE CITY POLICE OFC. MARK STRICKLAND, LAKE CITY POLICE OFC. SGT. ANTHONY BACKHUSS, LAKE CITY POLICE OFC. JODY COOPER, ATF AGENT ALAN C. STRICKLAND, Defendant.

          REPORT AND RECOMMENDATION AND ORDER

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Defendants previously filed a Motion for Summary Judgment (ECF No. 140). In an Order (ECF No. 184) adopting in part and as modified a Report and Recommendation (ECF No. 172) from the undersigned, the District Judge granted Defendants' Motion as to Plaintiff's claims of unlawful seizure and civil conspiracy. The District Judge declined to adopt the Report and Recommendation as to Plaintiff's excessive force claim and allowed Defendants Strickland and Stewart to file a supplemental motion for summary judgment as to that claim.

         On November 12, 2018, Defendants Strickland and Stewart filed their Supplemental Motion for Summary Judgment (ECF No. 206). Because Plaintiff is proceeding pro se, he was advised by an Order (ECF No. 141) pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in dismissal of his Complaint. Following an extension of time, Plaintiff filed his Response (ECF No. 222). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC.

         II. MOTION TO COMPEL

         As an initial matter, the court notes that, throughout Plaintiff's response to the supplemental motion for summary judgment he argues that he is hindered from presenting sufficient evidence because Defendants have failed to comply with the undersigned's order granting a previous motion to compel and compelling them to produce certain evidence. Plaintiff has also filed another Motion to Compel (ECF No. 192), moving the court to compel Defendants to respond to the discovery requests. Plaintiff asserts that the following discovery requests are still at issue:

2. All documented information handwritten or typed into any system, that is in the possession of Lake City Police Department, that was done or entered by dispatcher “Kimberly Scoot” who worked as the dispatcher on 3/12/15. This information would include the name and address and all other information given by the 911 caller on 3/12/15. Case # 15-03-0323.
4. All log book or computer documented information done by dispatcher “Kimberly Scoot” on 3/12/15 revealing the names and place of employment of the two F.C.E.M.S. workers that came to the Lake City Police Department to treat the Plaintiff after he was tased on 3/12/15.
7. Any and all audio/video recordings from the Lake City Police Department from 3/12/15. This would include the Sally Port footage from L.C.P.D. 3/12/15 on or about 7:30 p.m. Also the booking area footage from the same date and time.
9. Any and all audio/video records from the electronic stun devices and or “tasers” with a serial number of “P3-022495.”

         As to each of these requests, Defendants responded that no such documents or information exist or they no longer have them. The court entered an Order (ECF No. 115) directing Defendants to provide an affidavit or other sworn statement attesting to the veracity of these discovery requests and directing them to produce documents responsive to other discovery requests that are no longer at issue. Although Defendants provided an affidavit attesting to the veracity of some of their discovery responses, it did not address all of the responses compelled by the court. See Miles Aff. (ECF No. 131-1). In response to the most recent motion to compel, Defendants provided a Supplemental Affidavit of Trey Miles, who stated

1. I, Trey Miles, am employed at the Lake City Police Department as a Lieutenant in the Administration/Training Division performing duties as an Assistant Terminal Agency Coordinator.
2. I assisted defense counsel, Lisa A. Thomas, in answering all questions asked of the Defendant by the Plaintiff through discovery.
3. All of the answers given by the Defendants to all the Plaintiff's discovery questions are true and correct to the best of my knowledge and I attest to the veracity of all responses provided.

         Miles Supp. Aff. (ECF No. 205-1). Accordingly, Plaintiff's Motion to Compel (ECF No. 192) is MOOT.[1]

         III. FACTS

         This action arises from Plaintiff's arrest on March 12, 2015. On that date, Corporal Mark Strickland and Narcotics Investigator John Stewart, both with the Lake City Police Department, were dispatched to South Morris Street where a caller stated “there were two black males in the middle of the road fighting and that one that did not have on a shirt on had a gun and was headed to 439 South Morris Street (Coker Mobile Home Park).” Incident Report (ECF No. 140-2). Plaintiff asserts in his Complaint that he was unarmed. It was near dark when Strickland and Stewart arrived on the scene, separately but at approximately the same time. Stewart Aff. ¶¶ 3-4 (ECF No. 140-3).

         As Stewart exited his vehicle and turned on his flashlight, he immediately saw a gun sticking out of the back pocket of a man fitting the description from dispatch. Stewart Aff. ¶ 4. The Incident Report, prepared by Strickland, indicates “we saw the suspect walk back behind a mobile home after he stuck the pistol in his right rear pocket.” Incident Report. Strickland later clarified in his testimony during Plaintiff's criminal trial and in his affidavit that he did not personally observe the gun in Plaintiff's back pocket at that time but Stewart noticed it and yelled “gun!” to alert Strickland. Strickland Aff. ¶ 4 (ECF No. 140-4); Strickland Trial Transcript (ECF No. 168-3). Stewart testified that when he shined his flashlight on Plaintiff he “immediately saw the subject had a gun or something that appeared to be a gun sticking out of his back pocket.” Suppression Hearing Trans. at 12, 33.[2] Stewart and Strickland recognized Plaintiff and knew that he was a convicted felon and not allowed to possess a firearm. Stewart Aff. ¶ 5; Strickland Aff. ¶ 4.

         Along with their supplemental motion, Defendants submitted a copy of the dash cam video from Strickland's vehicle. None of the events at issue in this action take place within the view of the camera. The camera does, however, capture audio of the incident, although at times it is very faint and difficult to hear. In his response to the supplemental motion, Plaintiff repeatedly states that the dash cam video makes certain factual assertions “clear.” For example, with respect to Strickland's averment that Stewart shouted “gun!” to alert Strickland that Plaintiff was in possession of a gun, Plaintiff states “[a]fter review the cop car in-dash it is clear that this never took place.” Pl. Resp. p. 1 (ECF No. 222). Because the sound at the beginning of the interaction between Plaintiff and Stewart and Strickland is extremely ...


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