United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendants' motion for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Plaintiff has responded, defendants have
replied, and the matter is ripe for ruling. A hearing was
held on the motion before the undersigned on April 13, 2017,
at Raleigh, North Carolina. For the reasons that follow,
defendants' motion is denied.
evening of Friday June 29, 2012, plaintiff was walking down
Lane Street in Wilson, North Carolina after having made a
purchase at Nancy's Market, a convenience store. The area
around the market is known to police for hand to hand drug
sales. When plaintiff was about one hundred feet from the
market, a group of police officers got out of an unmarked van
to conduct a "jump out" - a tactic in which a group
of police officers will quickly exit an unmarked vehicle and
attempt to engage people in an area in conversation.
Plaintiff had previously been stopped, questioned, and
frisked as a part of a "jump out" and on this night
continued walking away from the market. Two officers,
defendant Emory and Officer Snider, who is not named as a
defendant, called out to plaintiff but did not give him a
command to stop.
continued walking away from the officers and denies doing
anything suspicious; Emory testified in his deposition that
while plaintiff was walking away he could be seen engaging in
furtive movements around his waistband. The officers began to
run toward plaintiff and plaintiff began to run as well.
Plaintiff contends that after running from the officers for a
brief time he came back to the street and decided to give
himself up in a public area. Plaintiff testified that after
he stopped running he complied with a command from the
officers to put his hands over his head. Plaintiff states
that he was then struck from behind, lifted by one of the
officers in the air, and slammed to the ground, injuring his
right cheek. The officers have stated that they did not give
plaintiff a command to put his hands on his head, that
plaintiff did not put his hand on his head, and that
plaintiff never stopped running on his own but rather was
brought to the ground by Officer Snider in a "controlled
fall" maneuver. Once on the ground plaintiff was
states that he was then strip searched on the street in plain
view of others; the statement of witnesses who could see
plaintiff being strip searched have been proffered by
plaintiff. After being searched by both police officers and
K-9, no weapons or contraband were found either on plaintiff
or on the path that plaintiff took while being pursued by the
officers. Plaintiff was briefly examined by emergency medical
technicians (EMTs) and was then brought before a Wilson
County magistrate who found probable cause based on defendant
Emory's testimony to arrest plaintiff for willfully and
unlawfully resisting, delaying and/or obstructing a police
office in discharging or attempting to discharge a duty of
his office in violation of N.C. Gen. Stat. § 14-223.
Plaintiff was released without a bond and the charge was
ultimately dismissed by an assistant district attorney before
trial. Two days following the incident, plaintiff sought
medical treatment for the injury to his face and was
diagnosed with a fracture to his right orbital bone.
filed this suit under 42 U.S.C. §§ 1983 and 1988
for violations of his federal constitutional rights,
specifically his liberty interest in bodily integrity under
the due process clause of the Fourteenth Amendment, his
Fourth Amendment right to be free from excessive force and
unreasonable search and seizure, and his Fourteenth Amendment
right to due process prior to infliction of corporal
punishment. Plaintiff has also alleged a § 1983 claim
for malicious prosecution as well as state law claims for
battery, gross negligence, and malicious prosecution/abuse of
process. Defendants have moved for summary judgment in their
favor on all claims and have raised the affirmative defense
of qualified immunity.
motion for summary judgment may not be granted unless there
are no genuine issues of material fact for trial and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If that burden has been met, the non-moving party
must then come forward and establish the specific material
facts in dispute to survive summary judgment. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
588 (1986). In determining whether a genuine issue of
material fact exists for trial, a trial court views the
evidence and the inferences in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007). However, "[t]he mere existence of a
scintilla of evidence" in support of the nonmoving
party's position is not sufficient to defeat a motion for
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). "A dispute is genuine if a
reasonable jury could return a verdict for the nonmoving
party.... and [a] fact is material if it might affect the
outcome of the suit under the governing law."
Libertarian Party of Virginia v. Judd, 718 F.3d 308,
313 (4th Cir. 2013) (internal quotations and citations
omitted). Speculative or conclusory allegations, however,
will not suffice. Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002).
Section 1983 and 1988 claims
contend, and plaintiff does not contest, that plaintiffs
liberty interest, excessive force, and malicious prosecution
claims are properly analyzed under a Fourth Amendment rubric
as these claims all flow from his allegedly unreasonable
seizure both at the time he was stopped and at the time he
was arrested. See Graham v. Connor, 490 U.S. 386,
394-5 (1989); see also Lambert v. Williams, 223 F.3d
257, 262 (4th Cir. 2000) (noting "there is no such thing
as a '§ 1983 malicious prosecution'
immunity shields government officials from liability so long
as they could reasonably believe that their conduct does not
violate clearly established law. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry
v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
It protects "all but the plainly incompetent or those
who knowingly violate the law." Malley v.
Briggs, 475 U.S. 335, 341 (1986); see also Reichle
v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012). A
court employs a two-step procedure for determining whether
qualified immunity applies that "asks first whether a
constitutional violation occurred and second whether the
right violated was clearly established." Melgar v.
Greene, 593 F.3d 348, 353 (4th Cir. 2010) (citing
Saucier v. Katz, 533 U.S. 194 (2001)). Again, the
facts are construed in the light most favorable to plaintiff.
undisputed that plaintiff was seized by defendant Emery and
Officer Snider. As there are genuine issues of material fact
in the record as to whether a reasonable articulable
suspicion existed to support plaintiffs seizure or whether
probable cause existed to support plaintiffs arrest, the
motion for summary judgment on plaintiffs Fourth Amendment
and derivative claims is denied. See Pritchett v.
Alford, 973 F.2d 307, 313 (4th Cir. 1992) (while
determination of whether a right is clearly established is a
legal question always answerable at summary judgment, where
there are issues of fact with respect to the officer's
conduct or its reasonableness summary judgment is
order to justify a brief, investigatory stop of a citizen on
a public street, an officer must have reasonable, articulable
suspicion that criminal activity is afoot. Terry v.
Ohio,392 U.S. 1, 21 (1968). Reasonable suspicion is a
less demanding standard than probable cause, but an officer
"must be able to articulate more than an inchoate and
unparticularized suspicion or 'hunch' of criminal
activity." Illinois v. Wardlow,528 U.S. 119,
123-24 (2000) (internal quotation marks omitted) (quoting
Terry, 392 U.S. at 27). Although the character of
the area and a subject's flight from officers will weigh
in favor of a reasonable suspicion of criminal activity,
Wardlow, 528 U.S. at 124, the record here, when
taking the facts in the light most favorable to plaintiff,
does not support finding that defendant Emery is entitled to
qualified immunity at this stage. Plaintiff asserts that he
was merely walking away from the officers, unhurriedly, when
they called out to him, and it is undisputed that no command
to stop was given prior to the chase. See Florida v.
Royer,460 U.S. 491, 498 (1983) (refusal to listen or
answer police after being approached on the street does not
provide a basis for detention). Plaintiff denies making
"furtive" movements near his waistband and ...