United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION AND ORDER
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
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.
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.
MOTION TO COMPEL
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
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,
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
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.
Supp. Aff. (ECF No. 205-1). Accordingly, Plaintiff's
Motion to Compel (ECF No. 192) is
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).
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. 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.
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 ...