Opinion
9:19-cv-2163-RMG-MGB
04-18-2023
Ted D. Ellis and Teresa Ellis, Plaintiffs, v. Cody C. Kirkman, individually; Amber Swinehammer, individually; Lindsey Gibson, individually; Cody C. Kirkman, Amber Swinehammer, and Lindsey Gibson, as Agents/Officers of Town of Bluffton Police Department; and Town of Bluffton Police Department, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
Plaintiffs filed this action alleging violations of 42 U.S.C. § 1983, negligence, gross negligence, negligent training and supervision, loss of consortium, assault, and intentional infliction of emotional distress. (Dkt. No. 1.) Currently before the Court are Motions for Summary Judgment filed by Defendants Swinehamer, Gibson, Kirkman, and Town of Bluffton Police Department. (Dkt. Nos. 127, 134, 169, 170.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Civil Rule 73.02(B)(2)(f), D.S.C., all pretrial proceedings in civil rights cases arising out of criminal processes not covered by Local Civil Rule 73.02(B)(2)(d), D.S.C., are referred to a United States Magistrate Judge for consideration.
The record reflects that the Defendant Swinehammer's name is properly spelled Swinehamer. In the interest of accuracy, the undersigned will refer to her as such throughout this Report and Recommendation.
For the reasons set forth below, the undersigned RECOMMENDS that the Court: (1) GRANT Defendant Kirkman's Motion for Summary Judgment as to Claims of Teresa Bush; (2) GRANT Defendant Town of Bluffton Police Department's Amended Motion for Summary Judgment (Dkt. No. 134); GRANT Defendant Swinehamer's and Defendant Gibson's Motion for Summary Judgment (Dkt. No. 169); and GRANT IN PART AND DENY IN PART Defendant Kirkman's Motion for Summary Judgment as to Claims of Ted Ellis (Dkt. No. 170).
The record also reflects that Plaintiff Teresa Ellis's name is actually Teresa Bush. Again, in the interest of accuracy, the undersigned will refer to her as such throughout this Report and Recommendation.
This factual summary is based upon the Complaint, the parties' briefings, and the video evidence provided to the Court. Though most of the facts underlying this civil action are undisputed, the undersigned has resolved any disputed facts within this Factual Summary in Plaintiff's favor.
This action arises from a traffic stop conducted by Defendant Cody Kirkman on August 3, 2017. (Dkt. No. 1; Dkt. No. 171; Dkt. No. 194.) More specifically, Defendant Kirkman pulled over Plaintiff Ted Ellis (“Ellis”) after a license plate reader showed that Ellis's vehicle had a suspended registration. (Dkt. No. 171 at 5; Dkt. No. 194 at 6.) Defendant Kirkman approached Ellis's vehicle and told Ellis that the tag on the vehicle was suspended due to lack of insurance. (Dkt. No. 171 at 6; Dkt. No. 194 at 6.) Defendant Kirkman then asked for Ellis's driver's license and registration. (Dkt. No. 171 at 6; Dkt. No. 194 at 6.) Ellis provided the registration but told Defendant Kirkman that he did not have his license with him. (Dkt. No. 171 at 6; Dkt. No. 194 at 6; Dkt. No. 194-1.) Defendant Kirkman returned to his vehicle, ran Ellis's information, and discovered that Ellis's license was suspended. (Dkt. No. 171 at 6; Dkt. No. 194 at 6; Dkt. No. 194-1.) By this time, Defendant Swinehamer had arrived at the scene as backup. (Dkt. No. 194-1.) Defendant Kirkman informed Defendant Swinehamer that he planned to arrest Ellis. (Id.)
Defendant Gibson also responded to the scene but arrived after Defendant Swinehamer. (Dkt. No. 194-1.)
Defendant Kirkman then asked Ellis to step out of his vehicle. (Dkt. No. 171 at 6; Dkt. No. 194 at 6; Dkt. No. 194-1.) Ellis got out of the car, turned to face it, and was handcuffed without incident. (Dkt. No. 171 at 6; Dkt. No. 194 at 6; Dkt. No. 194-1.) Throughout this process, Ellis continually voiced irritation and frustration with being stopped and arrested. (Dkt. No. 171 at 6; Dkt. No. 194 at 7; Dkt. No. 194-1.) At one point, Ellis attempted to turn towards Defendant Kirkman and Defendant Kirkman told him to stop moving. (Dkt. No. 194 at 7; Dkt. No. 194-1.)
Defendant Kirkman then led Ellis to his police vehicle by the arm. (Dkt. No. 194; Dkt. No. 194-1.) Before placing Ellis in the vehicle, Defendant Kirkman searched Ellis's front pockets. (Dkt. No. 171 at 6; Dkt. No. 194 at 7; Dkt. No. 194-1.) Throughout the search, Ellis continued to fidget. (Dkt. No. 171 at 6; Dkt. No. 194 at 7; Dkt. No. 194-1.) After searching Ellis's front pockets, Defendant Kirkman told Ellis to back away from the police vehicle. (Dkt. No. 194 at 7; Dkt. No. 194-1.) Ellis continued to move around. (Dkt. No. 194 at 7; Dkt. No. 194-1.) Defendant Kirkman told Ellis to stop moving and stated that if Ellis did not stop moving, he would “put [Ellis] on the ground.” (Dkt. No. 194 at 7; Dkt. No. 194-1.) Ellis responded by asking Defendant Kirkman what he was going to do, noting that he (Ellis) “got handcuffs on.” (Dkt. No. 194 at 7; Dkt. No. 194-1.) Defendant Kirkman explained that he needed to pat Ellis down; Ellis repeatedly asked to be put in the car. (Dkt. No. 194-1.)
Defendant Kirkman then grabbed Ellis by the lower portion of his legs, causing Ellis to fall to the ground, landing face-first on the pavement. (Dkt. No. 171 at 6; Dkt. No. 194 at 7; Dkt. No. 194-1.) Once Ellis was on the ground, Defendant Kirkman placed his knee on Ellis's back, holding him to the ground. (Dkt. No. 171 at 6; Dkt. No. 194 at 9; Dkt. No. 194-1.) Another police officer- Defendant Gibson-held Ellis's legs and feet. (Dkt. No. 171 at 6; Dkt. No. 194 at 9; Dkt. No. 1941.) While on the ground, Ellis continued to voice his discontent. (Dkt. No. 194-1.) A steady stream of blood flowed from Ellis's face during this time. (Dkt. No. 194 at 9; Dkt. No. 194-1.) Defendant Kirkman attempted to help Ellis with his injury, but Ellis refused his assistance. (Dkt. No. 194-1.) Ellis remained face-down on the ground for approximately nine minutes. (Dkt. No. 194 at 9; Dkt. No. 194-1.) Emergency Medical Services arrived, treated Ellis's injuries, and transported him to the Emergency Room. (Dkt. No. 171 at 7; Dkt. No. 194-1.)
In light of the foregoing events, Plaintiffs filed the instant litigation, bringing the following causes of action (verbatim):
• First Cause of Action : Violation of 42 U.S.C.A. §1983 as to Defendants Cody Kirkman and Town of Bluffton Police Department Respondeat Superior;
• Second Cause of Action : As to Defendant[] Kirkman - 42 USC § 1983 -Violation of Teresa Ellis's Constitutional Right to Marital Consortium;
• Third Cause of Action : As to Defendants Kirkman, Swinehammer and Gibson -a Negligence/Gross Negligence;
• Fourth Cause of Action : As to Defendant Town of Bluffton Police Department - Negligence/Gross Negligence - Respondeat Superior and Negligent Training/Supervision of Defendants Kirkman, Swinehammer, and Gibson;
• Fifth Cause of Action : As to Defendant Town of Bluffton Police Department - Loss of Consortium;
• Sixth Cause of Action : As to Defendant Town of Bluffton Police Department - Assault; and
• Seventh Cause of Action : As to Defendant Town of Bluffton Police Department - Intentional Infliction of Emotional Distress/Outrage.(Dkt. No. 1 at 6-15.)
PROCEDURAL HISTORY
Plaintiffs filed this case on August 2, 2019. (Dkt. No. 1.) On September 30, 2020, Defendants filed a Motion to Stay the case due to a criminal investigation into the events underlying the lawsuit. (Dkt. No. 33.) This Court granted Defendants' Motion to Stay on October 16, 2020. (Dkt. No. 44.) At the time the case was stayed, a Motion to Exclude Defendants' Expert and Motion for Partial Summary Judgment were pending. (Dkt. Nos. 27, 29.) In light of the stay, the Court denied the motions without prejudice and with leave to refile. (Dkt. Nos. 44, 47.)
The stay was lifted on June 2, 2022, after the Court received confirmation that the parallel criminal investigation necessitating the stay was complete. (Dkt. Nos. 103, 105.) The Court issued a Fifth Amended Scheduling Order upon lifting the stay, requiring discovery by September 2, 2022, mediation by September 16, 2022, and dispositive motions by October 3, 2022. (Dkt. No. 106.) The parties subsequently sought extensions of these deadlines to accommodate various depositions vital to the case. (Dkt. Nos. 112, 115, 123, 124.) The undersigned conducted multiple telephonic hearings regarding scheduling and ultimately granted the extensions. (Dkt. Nos. 107, 114, 126.)
On December 14, 2022, Defendants filed Motions for Summary Judgment. (Dkt. Nos. 127, 134.) On that same day, Plaintiffs filed a Motion to Exclude Defendants' Expert (Dkt. No. 154), requesting that the Court strike or exclude Brian Batterton as Defendants' expert, sanction Defendants, and extend Plaintiffs' deadline to file dispositive motions. Because Defendants relied on the expert witness testimony in their dispositive motions, the Court found the admissibility of Defendants' expert a threshold issue. (Dkt. No. 158.) As such, the Court stayed the dispositive motions deadline and the deadline for Plaintiffs to respond to the pending summary judgment motions. (Id.)
Defendants responded to Plaintiffs' Motion to Exclude on December 15, 2022. (Dkt. Nos. 159, 160.) Plaintiffs replied to Defendants' responses on December 21, 2022. (Dkt. No. 164.) Defendants filed a sur reply to Plaintiffs' reply on December 22, 2022. (Dkt. No. 165.) On January 9, 2023, the Court issued an Order granting in part and denying in part the Motion to Exclude. (Dkt. No. 168.) More specifically, the Court granted the motion only to the extent that Plaintiffs requested additional time to file dispositive motions, finding that Plaintiffs should be allowed additional time to depose Defendants' expert. (Id.) The Court set a new dispositive motions deadline of January 30, 2023. (Id.)
On January 30, 2023, Defendants Swinehamer and Gibson filed a Motion for Summary Judgment on all claims against them. (Dkt. No. 169.) On that same day, Defendant Kirkman filed a separate Motion for Summary Judgment as to Ted Ellis's claims against him. (Dkt. No. 170.) On February 8, 2023, Plaintiffs filed a request for an extension of time to respond to Defendants' motions, which the Court granted. (Dkt. Nos. 176, 177.) On February 27, 2023, Plaintiffs filed an omnibus response to Defendants' motions. (Dkt. No. 194.) Defendants then requested an extension of time to reply to Plaintiffs' response. (Dkt. No. 196.) The Court granted this request. (Dkt. No. 197.) Defendant Town of Bluffton Police Department replied to Plaintiffs' response on March 9, 2023. (Dkt. No. 198.) The remaining Defendants replied on March 10, 2023. (Dkt. No. 199.) As such, the motions before the Court have been fully briefed and are ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact, and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In ruling on a motion for summary judgment, “the nonmoving party's evidence ‘is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). “Although the Court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (citing Anderson, 477 U.S. at 252; Stone v. Liberty Mutual Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
DISCUSSION
At the outset, Plaintiffs consent to the dismissal of all claims except the § 1983 excessive force claim against Defendant Kirkman and the negligence/gross negligence claim against Defendant Town of Bluffton Police Department. (Dkt. No. 194 at 3.) As such, the undersigned recommends that the Court grant Defendant Kirkman's Motion for Summary Judgment as to Claims of Teresa Bush (Dkt. No. 127), and Defendant Swinehamer's and Defendant Gibson's Motion for Summary Judgment on all claims filed against them (Dkt. No. 169). The undersigned also recommends that the Court grant Defendant Kirkman's Motion for Summary Judgment as to Claims of Ted Ellis (Dkt. No. 170), to the extent such motion covers claims beyond Plaintiffs' § 1983 excessive force claim. Although Plaintiffs' consent to the Court's dismissal of all but one of their claims against Defendant Town of Bluffton Police Department, the undersigned recommends that Defendant Town of Bluffton Police Department's Amended Motion for Summary Judgment (Dkt. No. 134) be granted in full for the reasons set forth in further detail below. In sum, the undersigned recommends that only Plaintiff's § 1983 excessive force claim against Defendant Kirkman should survive summary judgment.
I. Section 1983 Excessive Force Claim Against Defendant Kirkman
Defendant Kirkman contends that Plaintiffs' § 1983 excessive force claim against him should be dismissed because no reasonable juror could find that he used excessive force against Ellis based on the record before the Court. (Dkt. No. 171 at 46.) Defendant Kirkman further contends that, even assuming he used excessive force against Ellis, he is nonetheless entitled to qualified immunity. (Id. at 64.) In response, Ellis asserts that Defendant Kirkman's conduct was objectively unreasonable when weighing the Graham factors and considering Fourth Circuit precedent. (Dkt. No. 194 at 12.) Ellis also argues that Defendant Kirkman is not entitled to qualified immunity because established law prohibits officers from assaulting handcuffed individuals who pose no threat or risk of flight. (Id. at 21.)
Upon review of the record, the undersigned finds that a reasonable jury could conclude that Defendant Kirkman used excessive force against Ellis when he pulled Ellis's legs out from under him, causing him to fall face-first into the pavement, and then used his knee to hold Ellis down for a period of approximately nine minutes. Further, the undersigned finds that the record before the Court, when considered in the light most favorable to Plaintiffs, does not support a finding that Defendant Kirkman is entitled to qualified immunity. Accordingly, the undersigned recommends that summary judgment on § 1983 excessive force claim against Defendant Kirkman should be denied.
A. Excessive Force
A claim that “law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure' of his person . . . [is] properly analyzed under the Fourth Amendment's ‘objective reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). In applying the objective reasonableness standard, “the question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396-97).
Further, proper application of the objective reasonableness standard “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,” and “[t]he ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. “Ultimately, the question to be decided is ‘whether the totality of the circumstances justifie[s] a particular sort of . . . seizure.'” Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015) (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
Here, the Graham balancing analysis does not weigh in Defendant Kirkland's favor. With respect to the first Graham factor, the evidence indicates that Ellis was arrested for driving with a suspended license. (Dkt. No. 194 at 13; Dkt. No. 194-1.) In other words, Ellis had committed a minor, nonviolent infraction at the time Defendant Kirkland used force against him. (Dkt. No. 1941.) Accordingly, this factor weighs in Ellis's favor. See Jones v. Buchanan, 325 F.3d 520, 528 (4th Cir. 2003) (“[W]hen the ‘offense was a minor one,' [the Fourth Circuit has] found that the first Graham factor weighed in plaintiff's favor.”).
The second and third Graham factors also weigh in Ellis's favor. While Ellis was fidgeting and talking back to Defendant Kirkman, the record evidence-when considered in the light most favorable to Ellis-does not demonstrate that he posed an immediate threat to Defendant Kirkman or others, nor that he was actively resisting arrest or trying to flee. (See e.g., Dkt. No. 194-1.) Defendant Kirkman was able to handcuff Ellis without incident and had no problem leading Ellis over to his police vehicle. (Dkt. No. 194-1.) Further, just moments before Defendant Kirkman pulled Ellis's legs out from under him, Ellis requested that Defendant Kirkman put him in the police car. (Dkt. No. 194-1.)
Defendant Kirkman argues that Ellis posed an immediate threat to his safety because Ellis was larger in stature, fidgeting, and talking back. (Dkt. No. 171 at 21-22, 51.) Defendant Kirkman further argues that the traffic stop was conducted very close to a busy street, meaning that Ellis “could easily cause a struggle to enter a lane of traffic, endangering the officer(s), himself, and motorists.” (Id. at 51.) Finally, Defendant Kirkman contends that he was at risk because Ellis had not yet been thoroughly searched, claiming “[i]f Ellis were not thoroughly searched, a reasonable officer in Officer Kirkman's situation could believe that he would pose an imminent threat to the officer, to detention officers, and to all he came in contact with.” (Id. at 51-52.)
The undersigned finds these arguments unconvincing and unsupported by the record before the Court. The video evidence depicts that Ellis was indeed larger than Defendant Kirkman, was moving around, and was speaking to Defendant Kirkman disrespectfully. (Dkt. No. 194-1.) However, the video evidence does not depict the level of resistance and discontent that Defendant Kirkman claims. (Id.) As noted, Ellis was handcuffed without incident, and he did not resist when Defendant Kirkman led him to the police vehicle. (Id.) Though Ellis contested his arrest and threatened Defendant Kirkman throughout the entirety of the video, Ellis employed no physical force beyond fidgeting and attempting to turn around to face Defendant Kirkman on one occasion. (Id.) Indeed, Ellis was significantly limited in that he was handcuffed (which Ellis himself points out during the video recording). (Id.) Further, Ellis's size relative to Defendant Kirkman does not support the presence of an imminent threat to Defendant Kirkman, considering that two other officers-Defendants Swinehamer and Gibson-were at the scene and could have rendered assistance as necessary at any point during Ellis's seizure. (Id.)
The presence of these other officers also weakens Defendant Kirkman's argument regarding proximity to traffic, as the video evidence depicts Defendant Swinehamer placing herself in the way of traffic to provide additional space around Ellis and Defendant Kirkman (Id.) As for Defendant Kirkman's assertions that Ellis posed a safety threat because he was not searched, the video evidence contradicts this contention, as well. (Id.) While Defendant Kirkman's search may not have been entirely complete when he initiated force against Ellis, it was substantially complete in that Defendant Kirkman had searched both of Ellis's front pockets. (Id.) Considering that Ellis was wearing a very tight tank top and gym shorts, a reasonable juror could conclude that Defendant Kirkman's alleged fear that Ellis was carrying a weapon was not a rational one. (Id.) Indeed, the record does not reflect that Ellis had a weapon or that there was a valid reason to believe he had a weapon. See Cansler v. Hanks, 777 Fed.Appx. 627, 638 (4th Cir. 2019) (noting that whether an individual “actually possessed a weapon . . . [is] a fact that could weigh heavily in the objective reasonableness assessment”).
Similarly, the video evidence does not suggest that Ellis was a danger to Defendant Kirkman or anyone else once he was on the ground. (Dkt. No. 194-1.) Again, Ellis continued to threaten and fidget, but he did not make any attempts or gestures indicating that physical violence was forthcoming. (Id.) At this point, Ellis remained handcuffed and was significantly injured, steadily bleeding from his face. (Id.) A reasonable juror could therefore conclude that Defendant Kirkman's use of force in holding Ellis on the ground in the prone position for several minutes after his initial fall was not objectively reasonable. (Id.)
Based on the foregoing, the undersigned cannot find that Defendant Kirkman's decision to pull Ellis's legs out from under him, causing him to fall face-first into the pavement, and then to hold Ellis in the prone position for several minutes was objectively reasonable as a matter of law. See Graham, 490 U.S. at 388; Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 905-909 (4th Cir. 2016) (explaining the “risk of immediate danger,” noting that “[a]t bottom, ‘physical resistance' is not synonymous with ‘risk of immediate danger[,]' ” and “[t]he subject of a seizure does not create such a risk [of immediate harm] simply because he is doing something that can be characterized as resistance-even when that resistance includes physically preventing an officer's manipulations of his body”). For this reason, Defendant Kirkman should be denied summary judgment on the § 1983 excessive force claim.
B. Qualified Immunity
Even so, the case against Defendant Kirkman must be dismissed if he is entitled to qualified immunity. “Qualified immunity shields government officials from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects officers from liability for “bad guesses in gray areas” and bases liability on the violation of bright-line rules. Id. (quoting Braun v. Maynard, 652 F.3d 557, 560 (4th Cir. 2011)). “Qualified immunity provides ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'” Cloaninger ex rel. Est. of Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, (1985)). The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
“In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry.” Ray, 781 F.3d at 100. The first prong asks “whether the facts, viewed in the light most favorable to the plaintiff, show that the officer's conduct violated a federal right.” Ray, 781 F.3d at 100. An officer's alleged use of excessive force during an arrest or investigation implicates the Fourth Amendment right against unreasonable seizures. Id. “The second prong of the qualified-immunity inquiry asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional.” Id.
Having determined that a reasonable juror could conclude that Defendant Kirkman violated Ellis's constitutional right to be free from excessive force, the undersigned must consider whether that right was clearly established at the time of Defendant Kirkman's violation. As this Court has previously determined, “[t]here is a substantial body of caselaw showing that when an officer strikes [or continues to use force against] a suspect who is already restrained, this can be considered excessive force.” Wiegand v. Long, No. 2:19-cv-1842-RMG-MHC, 2022 WL 2068951, at *11 (D.S.C. Feb. 28, 2022) (internal quotations omitted), adopted, 2022 WL 1590994 (D.S.C. May 19, 2022); see, e.g., Bailey v. Kennedy, 349 F.3d 731, 745 (4th Cir. 2003) (affirming denial of qualified immunity on excessive force claim when the plaintiff was unarmed, and the officers' use of force continued even after he was secured with flex-cuffs around both his hands and his feet, and lying face down on the floor); Jones, 325 F.3d at 532 (affirming denial of qualified immunity on excessive force claim where officer severely injured plaintiff-who was drunk and using foul language-by knocking him to the floor and jumping on him, even though the plaintiff was unarmed and handcuffed); Kane v. Hargis, 987 F.2d 1005, 1006-07 (4th Cir. 1993) (denying qualified immunity on excessive force claim when, taking the facts in the light most favorable to the plaintiff, she resisted arrest for driving under the influence and the police officer, after he had secured her, “repeatedly push[ed] her face into the pavement, cracking three of her teeth, cutting her nose, and bruising her face”); see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that the facts of a prior case need not be identical in order for an officer to have fair notice that conduct is objectively unreasonable, so long as the reasoning of the case establishes premise that such conduct is unreasonable).
Because it appears that the constitutional right at issue here was clearly established at the time of Defendant Kirkman's purported violation, the undersigned cannot conclude that Defendant Kirkman is entitled to qualified immunity as a matter of law. Thus, the undersigned recommends that Defendant Kirkman's Motion for Summary Judgment be denied on this point.
II. Negligence/Gross Negligence Claim Against Town of Bluffton
Defendant Town of Bluffton Police Department argues that Plaintiffs' negligence/gross negligence claim must be dismissed because Plaintiffs impermissibly bring this claim under the theory of respondeat superior. (Dkt. No. 155-1 at 10.) In response, Plaintiffs concede to dismissal of their negligence/gross negligence claim based on respondeat superior but contend that the Complaint also states a claim for negligence/gross negligence based on vicarious liability. (Dkt. No. 194 at 30.) Defendant Town of Bluffton Police Department argues that the Complaint does not contain such a claim and that the Court should not allow Plaintiffs to recast their negligence/gross negligence claim. (Dkt. No. 198 at 2.) Defendant Town of Bluffton Police Department contends that Plaintiffs are bound by the pleadings unless such pleadings are altered by amendment, and the Court should not allow Plaintiffs to effectively amend their Complaint at this late stage of the litigation. (Id.) For the reasons set forth below, the undersigned agrees.
The Complaint classifies Plaintiffs' negligence/gross negligence claim against Defendant Town of Bluffton as “Negligence/Gross Negligence-Respondeat Superior and Negligent Training/Supervisionof Defendants Kirkman, Swinehammer, and Gibson.” (Dkt. No. 1 at 11.) The Complaint then reiterates-multiple times-that the claim is premised upon a respondeat superior theory of liability. For example,
As noted, Plaintiffs concede to dismissal of their negligent training and supervision claim against Defendant Town of Bluffton Police Department. (Dkt. No. 194 at 30.)
57. As a direct and proximate result of the negligence of Defendants Kirkman, Swinehammer, and Gibson, Ellis suffered grievous injuries more thoroughly described above. Whereas Defendants Kirkman, Swinehammer, and Gibson were, at all times, operating in their capacity as employees of Defendant Town of Bluffton Police Department, under the doctrine of respondeat superior, liability for their actions lies with Defendant Town of Bluffton Police Department....
59. As a result of the independent negligence of Defendant Town of Bluffton Police Department and the liability of the Department via respondeat superior, Ted Ellis is entitled to an award of actual and consequential damages from Town of Bluffton Police Department including bodily injury, permanent loss of function, disfigurement, pain and suffering, mental anguish, lost wages, and any other damages supported by evidence at trial.(Id. at 12.)
Thus, the plain text of the Complaint makes clear that Plaintiffs intended to bring a negligence/gross negligence claim against Defendant Town of Bluffton Police Department based solely upon this theory of liability-a theory that is not cognizable as pled. See Hunter v. Town of Mocksville, N.C. , 897 F.3d 538, 553-54 (4th Cir. 2018)) (“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.” (quoting Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978)). The undersigned is reticent to allow Plaintiffs to change course at this late stage. This case was filed nearly four years ago, and Plaintiffs had various opportunities to request leave to clarify or amend their Complaint throughout those four years; they did not. Now, after discovery is complete and dispositive motions have been filed, Plaintiffs ask the Court to read a new claim into their Complaint. (Dkt. No. 194 at 30.) Not only would this prejudice Defendant Town of Bluffton Police Department, but it would also further delay resolution of this case. (Dkt. No. 198 at 3-4.) As such, the undersigned recommends that the Court reject Plaintiffs' arguments and grant summary judgment to Defendant Town of Bluffton Police Department as to Plaintiffs' negligence/gross negligence claim.
Should the District Judge disagree with the undersigned's recommendation, the undersigned notes that a vicarious liability negligence/gross negligence claim could survive summary judgment. As explained above, material disputes of fact exist as to Defendant Kirkman's conduct during Ellis's arrest. Accordingly, it is not clear whether Defendant Kirkman's actions were intentional or negligent, so material questions of fact exist as to Defendant Town of Bluffton Police Department's negligence based on a theory of vicarious liability. See Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (explaining that “[a]n employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable and the plaintiff must sue the governmental agency itself,” but “if the plaintiff proves that ‘the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude,' then the governmental agency is not liable, and the employee is personally liable.” (quoting S.C. Code § 15-78-70(b))); see also Pimentel v. Plyler, No. 9:19-cv-03035-RMG-MHC, 2021 WL 1413332, at *12-13 (D.S.C. Jan. 22, 2021), adopted, 2021 WL 973315 (D.S.C. Mar. 16, 2021).
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that the Court GRANT Defendant Kirkman's Motion for Summary Judgment as to Claims of Teresa Bush (Dkt. No. 127), Defendant Town of Bluffton Police Department's Amended Motion for Summary Judgment (Dkt. No. 134), and Defendant Swinehamer's and Defendant Gibson's Motion for Summary Judgment (Dkt. No. 169).
The undersigned further RECOMMENDS that the Court GRANT IN PART AND DENY IN PART Defendant Kirkman's Motion for Summary Judgment as to Claims of Ted Ellis (Dkt. No. 170). More specifically, the undersigned RECOMMENDS that the § 1983 excessive force claim against Defendant Kirkman should survive and that all other claims should be dismissed.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).