United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
Dustin Patrick filed this civil rights action against
Defendants City of Aiken and William R. Cue (together
“Defendants”) pursuant to 42 U.S.C. § 1983
alleging that Cue used excessive force against Plaintiff in
violation of his constitutional rights. (ECF No. 1-1 at 6
¶ 21.) Plaintiff also asserts state law claims against
City of Aiken for battery, assault, and negligence.
(Id. at 5 ¶ 18–6 ¶ 20.)
matter is before the court on Defendants’ Motion for
Summary Judgment (ECF No. 39) pursuant to Rule 56 of the
Federal Rules of Civil Procedure. In accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(g)
(D.S.C.), the matter was referred to the United States
Magistrate Judge for pretrial handling. On March 29, 2019,
the Magistrate Judge issued a Report and Recommendation in
which she recommended that the court deny Defendants’
Motion for Summary Judgment. (ECF No. 54 at 13.) Defendants
filed Objections to the Magistrate Judge’s Report and
Recommendation, which are presently before the court. (ECF
No. 56.) For the reasons set forth below, the court
REJECTS the Magistrate Judge’s
recommendation and GRANTS Defendants’
Motion for Summary Judgment (ECF No. 39).
FACTUAL AND PROCEDURAL BACKGROUND
facts of this matter are discussed in the Report and
Recommendation. (ECF No. 54 at 2–4.) The court will
only reference herein facts viewed in the light most
favorable to Plaintiff that are pertinent to the analysis of
Daniel Rodriquez, and Leonard Harkins “were part of an
out of town contract group working in Aiken and they were all
staying at the Howard Johnson[’]s on Whiskey Rd.”
(ECF No. 9-5 at 2; see also ECF No. 1-1 at 3 ¶
5.) On the evening of September 11, 2014, Plaintiff and
Rodriquez “went to the bar” and “had a
couple [of] drinks.” (ECF Nos. 1-1 at 3 ¶ 6, 39-2
at 3:5.) After leaving the bar at approximately midnight,
Rodriquez was driving when the car suffered a tire blowout
and veered out of control eventually running through a wooden
fence. (ECF Nos. 1-1 at 3 ¶ 6, 39-2 at 3:7–14,
5:7–14.) After the accident, Rodriquez abruptly exited
the vehicle and ran away from it causing Plaintiff to do the
same. (ECF Nos. 1-1 at 3 ¶ 8, 39-2 at 3:16–17.)
However, shortly thereafter, they both returned to the
vehicle. (ECF No. 39-2 at 3:17–19, 5:16– 17.)
They were able to drive away as law enforcement approached on
foot. (Id. at 3:19–21, 6:5– 7.)
circling the block, Rodriquez again exited the vehicle and
ran away from it causing Plaintiff to do the same.
(Id. at 3:21–23, 5:18–24.) Plaintiff
eventually stopped running choosing to hide in some bushes
for approximately forty-five (45) minutes. (Id. at
7:9–14.) While in the bushes, Plaintiff called his wife
and Harkins sometime between 1 a.m. and 1:30 a.m.
(Id. at 7:15– 23; see also ECF No.
49-7 at 2.)
receiving Plaintiff’s phone call, Harkins dressed
himself, got in his truck and drove around the surrounding
area searching for Plaintiff. (ECF No. 49-3 at 4:5–9.)
When he was unable to find Plaintiff, Harkins drove back to
the Howard Johnson’s where he was confronted by law
enforcement officers looking for Plaintiff, including Cue.
(Id. at 4:10–25; see also ECF No.
49-10 at 2.) Harkins was ordered by the officers to call
Plaintiff and tell him that Harkins would drive to get
Plaintiff. (ECF No. 39-5 at 2.)
left the bushes when he saw Harkins’ truck approaching.
(ECF No. 39-2 at 8:7– 16.) In his hands, Plaintiff had
his cell phone. (Id. at 11:2–11.) As Plaintiff
running full speed approached Harkins’ truck, he saw a
law enforcement officer who told Plaintiff to stop. (ECF No.
49-4 at 8:1–7.) While Plaintiff attempted to stop
(id.), Cue discharged his Taser hitting Plaintiff.
(ECF No. 39-3 at 16:3–4.) Plaintiff “fell to the
ground hitting his head on the curb.” (ECF No. 39-4.)
“One metal prong [of the Taser was] in his chest and
the other [was] on the right side of his face, above the
cheek bone but below the eye.” (Id.)
Thereafter, the officers called Emergency Medical Services
and “Plaintiff was initially transported to Aiken
Regional Medical Center, but was later transferred to a
facility in Augusta.” (ECF No. 54 at 4 (citing ECF No.
39-5 at 3).)
September 8, 2016, Plaintiff filed the instant civil rights
action in the Aiken County Court of Common Pleas alleging
claims of excessive force, assault, battery, and negligence
against Defendants. (ECF No. 1-1 at 2–6.) On October
27, 2016, Defendants removed the case to this court. (ECF No.
1.) On September 6, 2018, Defendants filed the instant Motion
for Summary Judgment against Plaintiff. (ECF No. 39.)
Plaintiff filed his Memorandum in Opposition to
Defendants’ Motion for Summary Judgment on December 10,
2018, to which Defendants filed a Reply to Plaintiff’s
Response on December 28, 2018. (ECF Nos. 49, 52.)
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 D.S.C., the Magistrate Judge issued her Report on
March 29, 2019, recommending that the court deny
Defendants’ Motion for Summary Judgment for the
following reasons: (1) Plaintiff presented sufficient
evidence to dispute Defendants’ assertion that
Cue’s use of force was objectively reasonable (ECF No.
54 at 7); (2) “qualified immunity does not protect Cue
from tasing a compliant subject who had his hands up, even if
he had been previously evading police” (id. at
10–11); (3) because summary judgment should be denied
as to Plaintiff’s excessive force claim, it should also
be denied as to his assault and battery claim (id.
at 11); and (4) Defendants’ reliance on S.C. Code Ann.
§ 15-78-60(6) (2019) is misplaced, as courts have
interpreted the statutory language to address immunity for
the “manner in which a city formulates or implements
its policies, ” and “Plaintiff’s claim that
Cue’s discharge of his taser violated City of Aiken
policies does not fall within the immunity provided.”
(ECF No. 54 at 12 (citation omitted).) On April 12, 2019,
Defendants filed the following specific objections to the
Magistrate Judge’s Report and Recommendation:
(1) The Magistrate Judge erred in her analysis of what is
objectively reasonable by focusing on Plaintiff’s
intentions instead of Officer Cue’s perception.
(2) The Magistrate Judge failed to determine objective
reasonableness from the totality of the circumstances.
(3) The Magistrate Judge erred in finding Defendant Cue is
not entitled to Qualified Immunity.
(ECF No. 56). On May 10, 2019, Plaintiff filed a Reply to
Defendants’ Objections to the Magistrate Judge’s
Report and Recommendation (ECF No. 65).
court considers the merits of Defendants’ objections to
the Report and Recommendation below.
court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1331 based on Plaintiff’s claims against
Defendants under 42 U.S.C. § 1983, which permits an
injured party to bring a civil action against a person who,
acting under color of state law, ordinance, regulation, or
custom, causes the injured party to be deprived of “any
rights, privileges, or immunities secured by the Constitution
and laws.” Id.
STANDARD OF REVIEW
Report and Recommendation
Magistrate Judge’s Report and Recommendation is made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 for the District of South Carolina. The Magistrate
Judge only makes a recommendation to this court. See
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The
recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. Id. The court reviews de novo only
those portions of the Report and Recommendation to which
specific objections are filed. See Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005). The court reviews those portions which are not
specifically objected to only for clear error. Id.
at 316. The court may accept, reject, or modify, in whole or
in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. 28 U.S.C. §
Motion for Summary Judgment
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating that summary judgment is appropriate; if the
movant carries its burden, then the burden shifts to the
non-moving party to set forth specific facts showing that
there is a genuine issue of material fact for trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
considering a motion for summary judgment, the evidence of
the non-moving party is to be believed and all justifiable
inferences must be drawn in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). However, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Id. at 248. Further, to show that a genuine issue of
material fact exists, the non-moving party must set forth
facts beyond “[t]he mere existence of a scintilla of
evidence.” Id. at 252. The non-moving party
must present evidence sufficient to demonstrate that a
reasonable jury could return a verdict for the non-moving
party in order to avoid summary judgment. See Id .
The Report and Recommendation
Report, the Magistrate Judge generally recommends that the
court denies Defendants’ Motion for Summary Judgment as
to all of Plaintiffs’ claims. (ECF No. 54 at 13.) In
reaching this recommendation, the Magistrate Judge observed
that the relevant facts did not support a finding that
“Cue’s use of force was objectively reasonable,
” because whatever crime Plaintiff had allegedly
committed was minor and “he did not pose a threat to
the officers and was no longer evading them” at the
time Cue deployed his taser. (Id. at 8.) For a
similar reason, the Magistrate Judge observed that Cue was
not entitled to qualified immunity because it “does not
protect Cue from tasing a compliant subject who had his hands
up, even if he had previously been evading police.”
(Id. at 10–11.) Finally, as to the remaining
state law claims, the Magistrate Judge observed that the
assault and ...