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Patrick v. City of Aiken

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

September 27, 2019

Dustin Patrick, Plaintiff,
v.
City of Aiken and William R. Cue, Defendants.

          ORDER AND OPINION

         Plaintiff 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.)

         This 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).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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 his claims.

         Plaintiff, 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.)

         After 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.)

         After 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.)

         Plaintiff 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).)

         On 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.)

         In 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).

         The court considers the merits of Defendants’ objections to the Report and Recommendation below.

         II. JURISDICTION

         This 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.

         III. STANDARD OF REVIEW

         A. Report and Recommendation

         The 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. § 636(b)(1).

         B. Motion for Summary Judgment

         Summary 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).

         When 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 . at 248.

         IV. ANALYSIS

         A. The Report and Recommendation

         In the 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 ...


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