Opinion
Civil Action No.: 4:15-cv-3349-RBH-TER
09-12-2018
ROBERT EARL MORNING, Plaintiff, v. DILLON COUNTY, DILLON COUNTY SHERIFF'S OFFICE, SHERIFF MAJOR HULON, in his Official Capacity, KEN CARLISLE ROGERS, in his Individual and Official Capacity, JAMES JACKSON, in his Individual and Official Capacity, ANDREW MILLER, in his Individual and Official Capacity, and RICHARD DAY, in his Individual and Official Capacity, Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
In this action Plaintiff alleges various violations of his constitutional rights under 42 U.S.C. § 1983 as well as several state law causes of action. Plaintiff originally filed this action in state court in the Dillon County Court of Common Pleas, and Defendants removed it to this court. The only Defendant remaining in this action is Ken Carlisle Rogers in his individual capacity. The court granted summary judgment as to Plaintiff's claims against Defendants Dillon County, Sheriff Major Hulon, James Jackson, and Andrew Miller. Plaintiff and Defendants Dillon County Sheriff's Office and Richard Day reached a settlement. Rogers has not made an appearance in this action, and upon Plaintiff's request, the Clerk of Court entered his default. See Request for Entry of Default (ECF No. 91); Clerk's Entry of Default (ECF No. 92). Presently before the court is Plaintiff's Motion for Default Judgment (ECF No. 98). A hearing was held on September 6, 2018. Plaintiff and his attorney were present. Rogers was not present nor was anyone present on his behalf. 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. This report and recommendation is entered for review by the district judge.
II. PROCEDURAL HISTORY
Plaintiff originally filed this action in state court in the Dillon County Court of Common Pleas, and all Defendants except Rogers removed it to this court. Affidavits of Service were filed in state court on August 27, 2015, five days after the action was removed to this court, indicating that all Defendants except Rogers had been served. See generally http://publicindex.sccourts.org/Dillon/PublicIndex/PISearch.aspx (with search parameters limited by Case No. 2015-CP-17-357). In an earlier Report and Recommendation (ECF No. 47) addressing the other Defendants' motion for summary judgment, the undersigned recommended that the claims against Rogers be dismissed pursuant to Fed.R.Civ.P. 4(m) for Plaintiff's failure to timely serve him. However, Plaintiff attached to his Objections (ECF No. 54) the Affidavit of Service for Rogers, indicating that Rogers had been served on October 16, 2015, by delivery of the summons and complaint to his wife, who resided with Rogers. See Affidavit of Service (ECF No. 54-9). As such, Plaintiff's claims against Rogers were not dismissed.
As stated above, the court granted summary judgment as to Plaintiff's claims against Defendants Dillon County, Sheriff Major Hulon, James Jackson, and Andrew Miller. Plaintiff and Defendants Dillon County Sheriff's Office and Richard Day reached a settlement. Dillon County Sheriff's Office and Richard Day later filed a Motion to Enforce the Settlement (ECF No. 79), which was granted. After the court ordered Plaintiff to show cause as to why his claims against Rogers should not be dismissed for failure to prosecute, see Order (ECF No. 86), Plaintiff filed a Request for Entry of Default (ECF No. 91), and the present Motion for Default Judgment (ECF No. 98). A hearing on the motion was scheduled for August 15, 2018. Plaintiff filed a Motion to Continue (ECF No. 102) the hearing, and the court granted the motion. Order (ECF No. 103). The hearing was rescheduled for September 6, 2018, and the court directed counsel for Plaintiff to serve Rogers with a copy of the Notice of Hearing at his last known address. Notice of Hearing (ECF No. 106). As stated above, neither Rogers nor anyone on his behalf has appeared in this action.
At the hearing, Plaintiff testified, and counsel for Plaintiff presented additional facts regarding service on Rogers, and later supplemented the record with affidavits. These records reveal that a private investigator and/or subcontracted process server attempted to serve Rogers approximately nine times between July 22, 2015, and July 28, 2015, at 1416 East Harrison Street, Dillon, SC 29636. On the final attempt at this address, Rogers's mother and sister stated that Rogers did not live at that address, and they refused to provide any additional information. Affidavit of Non-Service; Affidavit of Process Server (ECF No. 110).
During August or September of 2015, another process server, Shawn Bethea, attempted service on Rogers at 453 Danielle Court in Dillon, South Carolina. Bethea had learned from a contact in law enforcement that Plaintiff and his wife Debbie Jo Rogers lived at that address. The property included a fenced yard with a "no trespassing" sign. Upon attempted service, Debbie Jo Rogers answered the door and told Bethea that Ken Rogers was not there "right now." Debbie Jo Rogers refused to accept service of the documents, saying "this has nothing to do with me." Bethea left the property and conveyed to Plaintiff's counsel that she did not feel comfortable returning to 453 Danielle Court to attempt service. Bethea Affidavit (ECF No. 110).
In October of 2015, a third process server, Tara Tyler, attempted service on Rogers. On October 15, 2015, Tyler reviewed the notes from the pervious process servers and began to research 453 Danielle Court, Dillon, SC. She also began to research the vehicles at that address. She also familiarized herself with Rogers's appearance based on reviewing Facebook. After her research, Tyler went to 453 Danielle Court and began surveillance on the property. She arrived at the property at approximately 4:34 p.m on October 15, 2015. Inside the fence was a green Jeep Liberty that Tyler believed belonged to Ken Rogers. At approximately 6:32 p.m. Tyler observed Ken Rogers inside the fenced in yard at 453 Danielle Court. At that time, the green Jeep Liberty was present. Tyler ended surveillance for the day at approximately 8:40 p.m. on October 15, 2015. On October 16, 2015, Tyler arrived at 453 Danielle Court at approximately 5:38 a.m. At this time, the gate on the fence was locked and the Jeep Liberty was at the residence. At approximately 9:30 a.m. on October 16, 2015, Tyler went back to the property and noticed the Jeep Liberty was the only vehicle at the residence. At approximately 12:45 p.m. on October 16, 2015, Tyler met with Ken Rogers's brother, Investigator Alan Rogers (DCSO), who attempted to make contact with Ken Rogers but was unsuccessful. At approximately 1:30 p.m. on October 16, 2015, Tyler went back to 453 Danielle Court and the Jeep Liberty was the only car present. The gate was still locked. Tyler then left to work on a different matter. At approximately 3:48 p.m. on October 16, 2015, Tyler returned to 453 Danielle Court and the gate was still locked. At approximately 4:50 p.m. on October 16, 2015, Debbie Jo Rogers, Ken Roger's wife, arrived at 453 Danielle Court and unlocked the gate. At that point, Tyler attempted service. Debbie Jo Rogers claimed that Ken Rogers was not present at the house and called the Dillon County Sheriff's Office to respond. Tyler attempted to give her the documents, but she refused to touch them. Tyler left them in her presence. A warrant was issued for Tyler for trespassing, but it was later rescinded. Tyler Affidavit (ECF No. 110).
According to the incident report, Debbie Jo Rogers told the sheriff's deputy that she told Tyler that she and Rogers had been separated for three weeks and he no longer lived at the residence. Incident Report (ECF No. 110). Dillon County Family Court records reveal that a final divorce decree was entered for Rogers and his wife on February 20, 2018. The order states that Rogers and his wife separated on January 17, 2016. Final Order of Divorce (ECF No. 110).
The facts in the record reveal that Rogers was served on October 16, 2015, in accordance with Fed.R.Civ.P. 4(e)(2)(B): after multiple attempts by two other process servers, the third process server left a copy of the documents at Rogers's dwelling or usual place of abode with his wife, Debbie Jo Rogers, a person of suitable age and discretion who resided there.
III. FACTS
The allegations against Rogers in Plaintiff's complaint are accepted as true in light of his default. See DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 322 n.1 (4th Cir. 2009) (accepting plaintiff's allegations against defaulting defendant as true, noting a defaulting defendant "admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established") (quoting Ryan v. Homecomings Fin. Network, 253 F.3D 778, 780 (4th Cir. 2001)). In addition to Plaintiff's allegations, undisputed facts have been placed in the record by way of the other Defendants' Motion for Summary Judgment.
On the evening of July 20, 2013, Defendant DCSO was requested to respond to the home of Plaintiff's sister for an alleged dispute between Plaintiff and his girlfriend. First Sergeant Rogers, Deputy Jackson, Deputy Miller and Deputy Day responded to the call. The Deputies located Plaintiff in the back yard of his sister's house sitting on a bench at a picnic table. In a subsequent statement, Deputy Miller stated "[w]e instructed him to stand up and place his hands behind his back. He was informed that he was under arrest. Plaintiff did not resist and the handcuffs were placed on him without incident." As Deputy Miller attested, Plaintiff was "compliant." Deputy Jackson stated that Plaintiff did not resist at any time.
After being handcuffed, Plaintiff began to profess to the officers that he was innocent. Jackson, Miller, and Day indicated that Rogers responded to Plaintiff by pepper spraying him in the face. According to Day, Rogers then "threw [Plaintiff] on the ground" and "sprayed [Plaintiff] again." Jackson stated that when Plaintiff "tried to get up, Deputy First Sergeant Rogers slapped [Plaintiff] twice in the face." Rogers "placed the leg irons on [Plaintiff] and then poured water on [Plaintiff's] face to decontaminate [Plaintiff]."
After the initial assault, Plaintiff "complained that he was being treated unjustly." In response, Rogers "pulled out his taser and tazed [Plaintiff]." The officers left the taser probes in Plaintiff's body, placed him in Jackson's patrol car and transported him to the jail where the probes were removed. See generally Compl. ¶¶ 10-35 and Attachments A-C.
On August 9, 2013, Rogers was arrested and charged with Assault and Battery second degree and Misconduct of Office. In exchange for Rogers's plea to Misconduct, the Attorney General's office agreed to drop the felony charge of Assault and Battery in the Second degree. Rogers was sentenced to one year in prison suspended on three years of probation.
Plaintiff testified during the hearing that he became unconscious for a period of time after he was tased. He suffered physical pain as a result of the pepper-spray, tasing, and other physical abuse. Once he arrived at the jail he asked if he could be transported to the hospital because he was in so much pain. However, he was told that Rogers was the only one who could transport him to the hospital, so he withdrew his request because he feared Rogers would continue to subject him to physical abuse. Plaintiff testified that as a result of Rogers's actions, he remains in fear of law enforcement officers and has lost all trust in them. He further testified that while he consumed alcohol before this incident, his consumption has increased to the point of addition as a result of the fear from this incident. Plaintiff testified that he has received psychological treatment but he has not produced any medical records to that end.
IV. DISCUSSION
Against Rogers, Plaintiff asserts causes of action for excessive force, unlawful seizure, and violation of free speech pursuant to 42 U.S.C. § 1983, as well as state law claims for malicious prosecution, false imprisonment, and gross negligence.
The facts in this case are sufficient to establish liability for excessive force. Protection against force used during arrest is provided by the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). All claims of use of excessive force during an investigatory stop or arrest or other seizures are governed by the Fourth Amendment's "objective reasonableness" standard. Id. The test for excessive force in the arrest context requires "balancing the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the government's interests alleged to justify the intrusion." Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The standard for measuring reasonableness of force is wholly objective. The objective reasonableness test requires careful attention to the circumstances of a particular case, including the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting seizure or attempting to evade seizure by flight. Graham, 490 U.S. at 396; Foote v. Dunagan, 33 F.3d 445 (4th Cir.1994). On the night in question, Rogers was responding to a call regarding a dispute between Plaintiff and his girlfriend. Rogers and the other officers located Plaintiff in the backyard of his sister's house sitting at a picnic table. Plaintiff allowed the officers to handcuff him without incident. He did not attempt to resist his arrest. Nevertheless, in response to Plaintiff's assertions that he had done nothing wrong, Rogers pepper sprayed Plaintiff, threw him to the ground, pepper sprayed him again, hit him, and placed him in leg irons. When Plaintiff complained of this assault, Rogers tazed him. Rogers's actions were objectively unreasonable in light of the circumstances and, thus, he is liable for excessive force.
In his complaint, Plaintiff seeks compensatory and punitive damages. "Compensatory damages may be awarded based on physical pain and suffering caused by a defendant's use of excessive force, apart from any damages based on monetary loss." Slicker v. Jackson, 215 F.3d 1225, 1231 (11th Cir. 2000). Compensatory damages may also be awarded for emotional and mental distress. Memphis Community School District v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Plaintiff credibly testified during the hearing that he was in physical pain after being pepper-sprayed, thrown to the ground, slapped, and tased. Plaintiff also credibly testified that he has a fear of law enforcement officers and continues to suffer as a result of the incident at issue here. However, he has not produced evidence, expert or otherwise, regarding treatment he has received or may need for these issues. Based upon the evidence presented, Plaintiff should be awarded compensatory damages in the amount of $15,000.
Punitive damages are allowed in an action under § 1983 when the defendant's conduct is shown to be "motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). "The callous indifference required for punitive damages is essentially the same as the deliberate indifference required for a finding of liability on the § 1983 claim." Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987). As evidence that Rogers acted with callous indifference to his rights, Plaintiff points to the fact the he did not resist nor try to flee, as corroborated by the other officers on the scene, yet was sprayed with pepper-spray, slapped to the ground, placed in leg-irons, and tased, all while in handcuffs. Plaintiff also points to the deposition testimony of Officer Day, one of the officers present at the time of the incident. Day testified that he knew what Rogers did was wrong. When asked whether Rogers' assaulted Plaintiff, Day answered "yes." Day Dep. 20 (ECF No. 36-6). Day testified that he had "never seen anything like that before," "I froze. I just-I never seen anything like that before. . . . It just seemed like it -happened so fast," Day Dep. 13, 21, 23-24; see also Jackson Dep. 18, 24, 25, 29 (ECF No. 36-1); Miller Dep. 24, 28-29 (ECF No. 36-3). Rogers's conduct calls for deterrence and punishment above that provided by compensatory damages. See, e.g., Smith, 461 U.S. at 55, 103 S.Ct. 1625 (emphasizing that prison guards should be held accountable for conduct that "amount[s] to reckless or callous indifference to the rights and safety of the prisoners in [their] charge").
"The amount of punitive damages to be awarded, if any, lies within the province of the trier of fact." Givens v. O'Quinn, 447 F.Supp.2d 593, 602 (W.D. Va. 2006) (citations omitted). However, due process prohibits the imposition of "a grossly excessive punishment on a tortfeasor." BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (internal quotation marks omitted). Here, Rogers should be liable to Plaintiff for $20,000 in punitive damages. See, e.g., Cowart v. Erwin, 837 F.3d 444, 455-56 (5th Cir. 2016) (upholding jury award of $4,000 in punitive damages where the officer punched restrained a non-threatening inmate); Estate of Davis v. Delo, 115 F.3d 1388, 1396-97 (8th Cir. 1997) (upholding punitive damages award of $5,000 against each defendant where trial court found evidence of malicious or evil intent in officer's beating of inmate while inmate offered no resistance).
V. CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff's Motion for Default Judgment (ECF No. 98) be granted and judgment against Rogers be entered in the amount of $35,000. Objections pursuant to Fed.R.Civ.P. 72(b) must be filed no later than September 21, 2018.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge September 12, 2018
Florence, South Carolina
The parties are directed to the important information on the following page.
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 no later than September 21, 2018. 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 2317
Florence, South Carolina 29503
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).