Loney v. Wilder et al, No. 3:2008cv00820 - Document 126 (E.D. Va. 2011)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/7/11. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division KIRK LEE LONEY, Plaintiff, Civil Action No. v. DOUGLAS L. WILDER, 3:08CV820 et al. , Defendants. MEMORANDUM OPINION Plaintiff se, brings Complaint May 12, Kirk this Loney, action. pursuant 2011, Lee to 42 a federal Loney U.S.C. is § proceeding 1983. by Memorandum Opinion inmate proceeding on (Docket and Order No. Amended 55.) On (Docket Nos. 68, 69), this Court dismissed many of Loney's claims. allegations remain concerning the actions of an The following Defendants Sims and George: 6. On or about the night of December 8th, 2006 Officer Sims and Trooper George were driving crazy behind me, and I didn't know who they were. I heard a gunshot, so I took off; not knowing that Officer Sims and Trooper George had conspired to pull the car over. 7. Officer Sims and Trooper George and other unknown officers beat me severely; bringing me around with smelling sauce and then beating me unconscious; several times, after forcing me into a major accident. 8. I handcuffed was and emergency room, and out of rounds of beaten after I by was police before handcuffed. I was At the I was beat some more while floating in consciousness. smelling sauce at I was pro administered several the scene and the E.R. to be questioned, after being involved in a major accident which to be, too much, for my heart and had to be rushed into an intensive care unit, once a doctor walked up and screamed on medical staff and police, saying, "Why haven't this man been placed on high alert!" (Am. Compl. n 6-8.) Based on the foregoing allegations, Loney makes the following pertinent claims for relief: Claim 1 Defendants George and Sims violated Loney's rights under the Fourth Amendment1 by using excessive Claim 2 force to effect Defendants George and right to due process his arrest. Sims violated Loney's under the Fourteenth Amendment2 by using excessive force against his person after he was arrested. Claim 3 Defendants George and Sims violated Loney's right to free speech under the First Amendment.3 Claim 4 Defendants George and Sims violated Loney's rights under the Fifth Amendment.4 Defendants Sims summary judgment. 1 "The of persons . . . against . George (Docket Nos. right not be violated and . . the people U.S. each 76, 80.) unreasonable ." have motions for Both Defendant Sims and to be searches Const, filed amend. secure and in their seizures, shall IV. 2 "No State shall . . . deprive any person of life, liberty, or property, amend. XIV, without due process of law . . . ." U.S. Const, § 1. 3 "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. Const, amend. I. 4 "No person shall ... be deprived of life, liberty, or property amend. V. without due process of law . . . ." U.S. Const, Defendant George provided Loney with the appropriate Roseboro5 notice. Nos. (Docket 99, 109.) Nos. 76, 82.) Loney has responded. (Docket The matter is ripe for disposition. I. Standard for Summary Judgment Summary judgment must be rendered "if the movant shows that there is movant Civ. no is P. genuine entitled 56(a). dispute to It is the judgment to motion, and See the Celotex "[W]here trial Corp. a dispositive be depositions, made Id. at 324 a pleadings answers to ^specific of the Fed. the record which issue of material fact. U.S. 317, 323 the burden of bear basis showing seeking of 477 the judgment reliance by R. of solely on interrogatories, the (1986). proof motion the and for at may pleadings, admissions (internal quotation marks omitted). and, the party summary to and law." a on When the the nonmoving party must go beyond citing interrogatories, facts of fact parts will issue, motion is properly supported, the matter genuine party in answers a material court Catrett, nonmoving properly the the of v. the on file." inform absence as any responsibility identify demonstrate to judgment summary to as and that affidavits admissions there is a or on "^depositions, file,' genuine designate issue 5 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975 for trial.'" Id. (quoting former Fed. R. Civ. P. 56(c) and 56(e) court "must (1986)). In draw reviewing all a justifiable party." United 832, (4th Cir. U.S. 242, 835 Inc. , 477 summary judgment inferences States v. 1992) 255 in (1986)). favor of the nonmoving Co., 978 Anderson However, v. 251. "[T]here is . Lobby, scintilla Anderson, . . upon whom the onus of 477 U.S. not but whether there is any upon which a jury could properly proceed to party F.2d a preliminary question for the judge, whether there is literally no evidence, the Liberty a mere evidence will not preclude summary judgment. at the Transformer Carolina (citing motion, find a verdict of proof is for imposed." Id. (internal quotation marks omitted). Additionally, "^Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Barr, Cir. F.3d 1527, 1537 Tenneco Resins, Inc., 953 F.2d 909, 915 & n. 7 (5th Cir. see 19 Fed. R. Civ. cited materials P. (5th 56(c)(3) . . . ."). ("The Therefore, 1994) court the (quoting Forsyth v. need Skotak 1992)); consider Court's v. only disposition of the Motion for Summary Judgment is based upon the materials Defendants Sims and George submitted in support of their Motions for Summary Judgment and the materials Loney opposition to the Motions for Summary Judgment. submitted in Of strong course, "[s]olemn presumption conclusory summary of verity. allegations dismissal, as declarations The unsupported are in open subsequent by contentions court presentation specifics that in carry is the subject face record are wholly incredible." Blackledge v. Allison, 63, representations 73-74 during (1977) a plea incongruous (holding hearing are assertions Machibroda v. United Therefore, "a party sufficient to survive that a formidable in a States, cannot habeas barrier U.S. 487, create a genuine judgment a to 431 to the U.S. subsequent (citing 495-96 (1962)). issue simply by of defendant proceeding) 368 summary of of a of fact contradicting his or her own previous sworn statement . . . without explaining the contradiction Cleveland v. or attempting Policy Mgmt. (citing cases). Sys. to Corp., resolve the disparity." 526 U.S. 795, 806 (1999) Furthermore: In cases where opposing parties tell different versions of the same events, one of which is blatantly contradicted by the record such that no reasonable jury could believe it a court should not adopt the contradicted allegations. Pourmoqhani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010) (per curiam) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). In the context of cases involving video evidence, [courts should] accept the video's depiction over the opposing party's account of the facts where the video obviously contradicts that version of the facts. Logan v. Aug. 29, Smith, 2011) No. 11-10695, (citing 2011 WL 3821222, Pourmoqhani-Esfahani, (parallel citation omitted)). at 625 *1 (11th Cir. F.3d at 1315 In support of his motion for summary judgment, Officer Sims has submitted his own affidavit. A ("Sims Aff.") of his motion, of Simone (Docket No. (Sims's Mem. 77-1).) Supp. Sum. J. Ex. in support Trooper George, has submitted his own affidavit and the affidavit Sapp. (George's Aff.") (Docket No. 81-1); Aff.") (Docket No. 94-1).) Mem. Supp. Sum. J. Amend. George's Mot. Mot. ("George Mem. Supp. ("Sapp Trooper George also has submitted a DVD recording of the night of Loney's arrest made by the in-dash camera in his patrol car. response, (George Aff. Ex. A ("DVD").)6 In Loney has submitted a "Motion in Opposition to Summary Judgement of Defendant George," an "Objection to Defendant George's Reply in Support of Motion for Summary Judgement," and a "Declaration in Motion for perjury pursuant 109.) the Opposition Summary Loney has General to Judgement," 28 U.S.C. District made Court during also the Sims, all § et al. , sworn 1746. (Defendant's) under (Docket penalty Nos. 99, of 107, also submitted the transcript of a hearing in Court Defendant Sims testified. The to has plea of the City (Docket No. before it proceedings Richmond in which Statement of Facts 99-1.) a in of sworn the criminal case against Loney that resulted from the incident in question here. United 6 When citing to the DVD recording, the Court will follow the term "DVD" stamp visible with on the a time. . That screen while running time of the DVD. time the will DVD is refer to playing, the not time the States June v. Loney, No. 2007) (hereinafter 14, Statement of 3:02CR290, Facts was consultation with his it will stand as contradictory "a East, Inc., Mass. Oct. 31, No. "Statement voluntarily attorney. 01-10323-NG, 2002) of (Statement Blackledge, No. 59 (E.D. 431 by of may This any of at 74; not after 2.) Thus Loney's Scott 2002 WL 31439745, ("[Plaintiff] filed Loney Facts against U.S. Va. Facts").7 signed formidable barrier" claims. Macy's Docket at evade *9 v. (D. summary judgment in this case with deposition testimony that contradicts his sworn admission offense."). Thus, resolving the of in facts the disparity, sufficient absence these of a to establish convincing the explanation contrary assertions will not be considered. Loney contradicted example, has by made the several Statement statements of Facts Loney states that he did not which and/or are the directly DVD. For run from the police after his vehicle crashed and that he "did not resist arrest" at any (PL's Decl. Opp'n Sims's Mot. Summ. J. if 5, time. 7 During his plea colloquy on June 14, placed under oath. (Plea Colloquy June 16.) 2007, 14, Loney Loney was 2007 ("Plea Colloquy"), file 2-07_01 at 3:01-3:13.) Loney acknowledged that he that would be bound by the statements he made at that hearing. (Plea Colloquy file 2-07_01 at 3:45-3:50.) Loney subsequently acknowledged that the Statement of Facts accurately represented the events in question and that he signed the Statement of Facts because it was true. (Plea Colloquy file 232 01 at 1:30-2:30.) also suggests that he did not have a knife on his person on the night of his arrest. (Mot. Opp'n Summ. J. 1.) statements are directly contradicted by the All Statement of Facts. Loney has made no attempt to resolve this disparity, the bare assertions that he was coerced into to offer an Summ. adequate conclusory statements, See Cleveland, Scott, J. SISI 9, 526 2002 WL 31439745, On December 8, explanation plea (PL's Decl. Because Loney has failed for these controversial they will not be considered by the Court. U.S. II. 19.) other than signing the agreement and that the DVD has been tampered with. Opp'n Sims's Mot. of these at 806; Logan, 2011 WL 3821222, at *1; George were at *9. Summary of Pertinent: Facts 2006, Defendants Sims and on patrol in the City of Richmond8 when they noticed a car with a broken rear Aff. SISI center brake 5-6; George Aff. light. SI 4.) (Statement of The officers that vehicle in their unmarked police vehicle. Facts SI 1; began following (DVD 17:33.) Sims It Sims was employed as a police officer by the City of Richmond and George was employed as a Virginia State Trooper by the Virginia State Police. (Sims Aff. SI4; George Aff. SI 1.) Sims and George were working together as part of a joint state/local taskforce. (Sims Aff. SI 5; George Aff. SI 2.) George was operating an unmarked police vehicle equipped with lights and a siren with Sims as his passenger. (George Aff. SISI 2, 3.) was later determined that the vehicle with the broken tail light was being operated by Loney with Simone Sapp as his passenger. A. Loney's Version of Events Loney has supplied only the most limited description of the events that follow. It is appropriate to first recite that evidence before turning to the remaining evidence in the record. Specifically, Loney swears that "Officer Sims and Trooper George and other unknown officers beat me with smelling sauce and then severely; beating me bringing me around unconscious; times, after forcing me into a major accident. police before (Am. Compl. two officers that also asp I SISI handcuffed 7-8.) the on the accident." that and after Loney avers that beating me and claims was the DVD I had Opp'n submitted The Trooper Loney's Sims George pulled "He George 9 Later, handcuffed." head trauma J. Trooper 1.) from Loney George "is (Id. at 2.) Pursuit vehicle. said, Trooper Initial was Summ. by severely tainted both audio and visually." B. I was beaten by "[t]here were more than scene. (Mot. I several Loney's knows then his vehicle vehicle you're on activated his into position behind swerved slightly and Officer him."9 emergency (DVD lights 17:33:41-42.) and stated, while recounting these events to a third party, George stated, "I said AHe ain't got no brake light' and I said 'It's on!' just messin' with him. Pretty soon I said, 'Here we go!'" (DVD 18:03:58-18:04:06.) "Run, bitch, run. 17:33:48-51.) it, I want it appeared to Trooper George stated, to happen!" Loney's activated his "He's pussed out, he's (DVD 17:33:55- vehicle then accelerated and Trooper George siren stating, seat belts!" (DVD slow down and weave He might not be, he might not be." out. 17:34:00.) the want Loney's vehicle again slightly. pussin' I "Here we go! (DVD 17:34:00-02.) It's on! According Let's hit to Sapp, Loney "tried to escape from the police in his vehicle that night when he car." heard police sirens behind our (Sapp Aff SI 2.) A pursuit ensued during the entirety of which the lights and siren of Trooper George's George Aff. C. activated. (Sims Aff. SI 7; The Car Wreck the the pursuit wrong George Aff. way SISI 5-6; rear door, Loney down a exceeded one-way DVD 17:36.) divided roadway and was 17:36.) the curb, Loney's struck a area. the speed street. limit (Sims Aff. struck broadside, in hydrant, (Statement of SI the driver's 9; and came Facts SI side (Statement of Facts SI 3; vehicle then swerved off the road, fire and Loney then attempted to cross a by a sport-utility vehicle. DVD grassy were SI 4; DVD 17:34:00-17:36:50.) During turned vehicle 3; to DVD rest in jumped an 17:36.) open, Trooper George used the passenger side corner of his front bumper to pin the driver's side front (Statement of Facts SI 4; door of DVD 17:36:52.) 10 Loney's vehicle shut. D. Loney's Arrest Loney then climbed over his passenger, vehicle through Sims Aff. SI Loney to "get 16; 17:36:58.) who Facts SI 4; your with (George Aff. Trooper up, 7.) you stupid short foot to fight with Officer 17-19; Loney, Facts SI 4; yelled George Officer at Sims Sims." George Aff. Trooper of motherfucker!" pursuit, Sims Aff. struggling (Statement SI Aff. hands and exited his door. a "began SI George (DVD tackled (Statement 7.) While secured Sims Simone of was Sapp. SI 7. ) 1. Placing Loney in Custody During his reach (Statement passenger George After Loney tried to the Sapp, of struggle into his Facts SI with Officer Sims, Loney front pocket and was 4; Sapp Aff. SI repeatedly "very combative." 4 ("One of the officers . . . had to wrestle with Mr. Loney while that officer was trying to handcuff Mr. Loney, who was resisting arrest.").) Loney also attempted to reach for Sims's SI 20.) During the struggle, "due to his was able to get on top of [Sims]." "employed leg [Loney]." (Sims Aff. Once and Trooper arm locks George [Loney] larger size, (Id. at SI 19.) order (Sims Aff. to gain [Loney] Officer Sims control over SI 24.) turned between Officer Sims and Loney, his back with in gun belt. his attention to the struggle he found Officer Sims "lying on on top of him. 11 Officer Sims was facing the back of an attempt [Loney's] to (George Aff. head. restrict SI 8.) Sims had his movement [Loney] and (capitalization changed).) resisting, point [Trooper stop times arrest."10 in used George] the torso [Loney] reach struggle, (DVD "believed that continued to to (Sims resist Aff. SI that lightweight, stop resisting and attempted to 25.) During the continued yelling at (DVD 17:37:44-52.)1X [striking Loney with an asp] (George Aff. "At "Despite the use of the asp, leg to Officer Sims's position and [Loney's] arrest." (a him Trooper George and Officer Sims Loney to "quit moving!" Facts SI 4 17:37:16.) asp telling waistband." own (Statement of [his] while (George Aff. SI 9.) his escape." to strike [Loney] approximately five or lock and arm lock for his Trooper George screamed at Loney to resisting!" retractable metal stick) six prevent "Loney repeatedly tried to reach into his front pocket and was very combative." "stop in an arm bar in was Trooper George appropriate due continued resistance to SI 9. ) 10 Simone Sapp states that "[w]hile the one officer was wrestling with Mr. Loney on the ground, the second officer hit Mr. Loney a few times with a metal stick to try and get him to stop struggling. Both officers were telling Mr. Loney to stop struggling." (Sapp Aff. SI 5.) Loney seems to assert that Trooper George struck him in the head. (Mot. Opp'n Summ J. 1 ("I had head trauma from that asp and the accident.").) 11 Sounds of a struggle can be heard for almost a minute on the DVD after Trooper George resisting. (DVD 17:37-38.) initially 12 tells Loney to stop The officers finally handcuffed Loney. SI 4; George Aff. SI 10; DVD 17:37:54-58 around!").) "Even in handcuffs Aff. Statement SI 27; George and Simone of Sapp [Loney] Facts both SI (Statement of Facts ("Bring your other hand resisted police." 6.) Trooper that state Nevertheless, no used Loney after he had been placed in handcuffs. Sapp Aff. and SI 6.) deactivated (Sims force was (George Aff. on SI 10; Trooper George then walked back to his vehicle the siren. (DVD 17:38:35.) A search incident to arrest revealed that Loney was carrying a knife in his right front pants pocket, the area to which he had been reaching as he struggled with Officer Sims. 2. (Statement of Facts SI 5.) After Loney's Detention Nothing on the DVD indicates that either Trooper George or Officer Sims, or any other officer, Loney once he had been handcuffed. the arrival heard making breathing of other a emergency report heavily over (as one were still During the period prior to vehicles, his might struggling with radio Officer while expect), can minute states, (DVD later "Hey man 17:40:05.) an unidentified [inaudible] An officer vehicle with a flashlight. male voice, . . . y'all can be seen can be Trooper George, be walking slowly to his vehicle to retrieve his flashlight. A Sims seen (DVD 17:39.) perhaps fucked my searching Loney, car up!" Loney's (DVD 17:40; George Aff. SI 11 ("After 13 reporting the incident, Officer Sims and [Trooper George] searched [Loney's] vehicle incident to arrest . . . .") Other law enforcement personnel arrived by 17:40:33 at the latest. (DVD 17:40:33.) At this point questions from an unknown officer, George: "He was fightin' George, in response to states: so I nailed him with the damn asp." Unknown Officer: George: "You nailed him?" "I did. hittin' Mark resisting." (DVD 17:40:27-43.) He was fightin' with his Some Mark [inaudible] six minutes so [Sims]; I, he he was kept later George on and Sims can be heard having the following conversation: George: "Hey [inaudible] outta you, right?" Sims: "Yeah, George: he was fightin' the shit yeah." "[inaudible] I mean, that's why I nailed him [inaudible]." Sims: "[inaudible] yeah, ground I [inaudible]." no, no, no, I was on the George: "It won't up to me [inaudible] ^cause you had all the arms but he was still fightin' [inaudible]." (DVD 17:46:23-37.) George like that You shit? resisting?" Almost Loney's then like (DVD 17:46:40-44.) immediately hands addressed officers Loney telling saying, you "You to stop Loney's reply is inaudible. thereafter from behind him to 14 in George front is of told him. to switch (DVD 17:47.) Trooper George prepared Loney and for unknown transport other by rolling (DVD 17:47.) Several minutes later, Sims, heard telling Sapp, you can be now," scene. indicating that (DVD treatment 18:01.) and remained him personnel onto an unknown officer, here, had transported been "was combative." he transported (Statement then a backboard. "He's not Loney Loney emergency can't hurt to of perhaps off the MCV12 for Facts SI 6.) Neither Trooper George nor Officer Sims accompanied Loney to the hospital. E. SI 31; George Aff. SI 12.) been to Post-Arrest After that (Sims Aff. Loney Officer had Sims transported and Trooper George had MCV, several with other people. During these conversations, these the third parties events of the the evening. DVD reveals conversations they related to Trooper George can be heard at one point speaking on a cell phone to an unknown party, saying: I chased [Loney] down in the car and I ended up hitting him with my car. ... Oh yeah, I'm fine. He's not. I beat the fuck out of him with my asp. Well, I beat him with my asp because he was resisting more, trying to fight, you know. 12 The Medical College of Virginia's ("MCV") hospital is currently referred to as VCU (Virginia Commonwealth University) Health Systems or VCU HS. For the purposes of simplicity, the Court will refer to it as MCV throughout this opinion. 15 (DVD 17:53:09-22.) Trooper George Several can minutes later heard recounting the be Officer incident Sims to and fellow officers: George: "[Loney] climbed right over [Sapp]." Sims: "And then I'm holding him [inaudible] I'm [Loney] starts fighting with me and down and he's trying to get out looking up and I see George [inaudible]." George: "Hell yeah! 01' Cal Ripken baby!13 Hell yeah!" Sims: "[inaudible] yeah hit him again!" George: "Stop resisting! How you like that DT? resisting! Bam! Stop resisting!" (DVD 18:14:32-4 6.) The parties have submitted Stop no other pertinent information. III. Analysis Sims used of the infringed by the Conner, U.S. 490 U.S. 137, Loney's claims that Trooper George and Officer unreasonable identifying 140 Analysis force specific against constitutional challenged application 386, (1979)). 394 him (1989) of must begin "by right allegedly force." Graham v. (citing Baker v. McCollan, 443 Loney's initial arrest was a seizure of 13 Trooper George is likely referring to Cal Ripken, Jr., a former Major League Baseball player for the Baltimore Orioles. Ripken, a member of the Baseball Hall of Fame, is most famous for having played a record 2,632 consecutive games. Jr. , The Columbia Encyclopedia (6th ed. 2008), http://www.encyclopedia.com/doc/lEl-RipkenCal.html. 16 Cal Ripken, available at his person and thus his claims of unreasonable cognizable under the Fourth Amendment.14 F.3d 524, 531 (4th Cir. 2011). he became a pretrial detainee. 784, 788 (4th 863, 865-66 force Due (4th against Process Graham, Cir. Cir. (citing 1988)). a pretrial Clause of 490 U.S. A. 1990) detainee the Fourteenth was lawfully v. Gentile, 905 F.2d 849 of unreasonable be evaluated Amendment. Id. F.2d use under of the (quoting at 395 n.10). Loney's Fourth Amendment Claim Loney's claims that Officer excessive force in effecting his matrix must Loney U.S. v. Cobb, Martin Claims are Henry v. Purnell, 652 Once arrested, force of the Fourth Sims and Trooper George used arrest are evaluated under the Amendment's prohibition against 14 On the subject of what constitutional right protects a person once arrested, the Supreme Court has stated: Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins . . . . It is clear, that the Due Process Clause protects a however, pretrial detainee from the use of excessive force that amounts to punishment. See Bell v. Wolfish, 441 U.S. 520, 523-39 (1979). After conviction, the Eighth Amendment "serves as the primary source of substantive protection ... in cases . . . where the deliberate use of force is challenged as excessive and unjustified." Graham, original; 475 U.S. 490 U.S. at 395 n.10 (second parallel citation omitted) 312, 327 (1986)). 17 and third omissions in (quoting Whitley v. Albers, unreasonable seizures argue that the and, even if (Sims's Mem. of the person.15 force used to arrest Loney was it was, Supp. they Summ. are J. but who, in entitled to not and George unreasonable qualified 6; George's Mem. "Qualified immunity protects violations Both Sims Supp. Summ. In J. light of clearly established law, could Henry, Saucier v. in 194 Katz (2001). Pearson the Supreme Court set forth a two-step Consistent v. Callahan, with the this Supreme Court whether whether 223, the 236 2010) a constitutional exercises right (2009); violated Melgar v. was violation clearly Greene, 593 533 Court's decision its discretion to use the two-step procedure of Saucier, first, 652 (citing cases). inquiry for determining violations of the Fourth Amendment. U.S. 7.) officers who commit constitutional reasonably believe that their actions were lawful." F.3d at 531 immunity. occurred which asks and established. F.3d 348, sound second, 555 353 U.S. (4th Cir. (citations omitted). The freedom force.'" 15 Fourth Amendment from arrests Henry, 652 Loney also protects and detentions F.3d at 531 seems to an individual's right "*effectuated by excessive (quoting Schultz v. Braga, suggest that Trooper to George 455 and Officer Sims caused his accident. (Am. Compl. SI 7.) To the extent Loney was trying to bring such a claim, it is clearly foreclosed by the record. The DVD plainly shows that Loney was a victim of his own recklessness during his criminal flight from police. (DVD 17:34-37.) F.3d 470, 476 excessive (4th force Cir. is reasonableness." 2006). analyzed Id. "Whether under a an officer standard (citing Scott v. Harris, of has used objective 550 U.S. 372, 381 (2007)). The standard for determining reasonableness requires a balancing of "the nature and individual's Fourth countervailing governmental U.S. at 396 (internal quality Amendment the intrusion interests" interests (quoting Tennessee quotations of v. at In against Graham, 471 1, Graham U.S. the 8 Supreme the the stake. Garner, omitted)). on 490 (1985) Court identified several factors for use in this evaluation "including the severity of the crime at issue, whether the suspect poses an immediate the threat whether he to addition, the rather of Supreme a perspective than Terry v. of officers with Ohio, or or others, and attempting to evade Id^ at 396 (citing Garner, 471 U.S. at 8-9). the Reasonableness' from safety is actively resisting arrest arrest by flight." In the the 392 U.S. Court particular of a 20/20 1, use cautioned of reasonable vision 20-22 of must officer hindsight. (1968)). 19 force that on "[t]he be judged the scene, Id. (citing Not every push unnecessary in violates the or shove, even the peace of Fourth if a it may later seem judge's chambers, Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation. Id. at 396-97 As (internal citation and quotation omitted). stated objective actions above, one. Id. this at 397. lens through the of reasonableness Courts must inquiry analyze an Baltimore Cnty., 4526021, at required to "^simply must Meyers, *5 F. (D. use Md. the act 2011 WL Supp. Sept. least within 4526021, an officer's a reasonable police officer at same scene under the same facts and circumstances. v. is 2d 28, , No. 2011). intrusive the at *5 range Id. ; Meyers L-10-549, 2011 WL " MO] fficers means of the are not available,'" but reasonable (quoting Henry, 652 conduct." F.3d at 546 (Shedd, J. dissenting)). Here, the crimes at Trooper George through an accident. the by and urban Officer environment (Sims Aff. SI 6-13; vehicle chase ended, fleeing active on foot. resistance continuing danger issue are Loney's attempt to to to flee from Sims by driving at high speeds and his fleeing the scene of George Aff. SI 4-6.) Further, an once Loney still attempted to evade arrest (Statement of Facts arrest by Officer both Sims and 20 SI 4.) Sims, Trooper During Loney George his posed as a he attempted to reach front pocket (where, both for Sims's gun belt it was later discovered, and for he was his own carrying a "lock-blade knife"). (Id^ at SISI 4-5; Sims Aff. SI 29.) Thus, with all weigh against respect Loney. Sims, Graham, arm locks was to to 490 combat U.S. it is at Loney of "larger size." factors, of the Graham 396. factors Sims used only leg locks and during his (Sims Aff. incontrovertible SI arrest 19, that a even 24.) though Given reasonable Loney the above officer in Sims's position would have found Sims's use of force reasonable. Accordingly, Sims is entitled to summary judgment on Claim 1. Although Trooper George used a greater degree of force than Officer Sims, such force was also George turned from securing Sapp, decide how best Loney, who was to assist reasonable. he his had only a partner. larger than Sims, Given these circumstances, that Loney struggle with Officer judgment, the best was way a (George Aff. reasonable reaching Sims. for In him him to comply with the arrest. the situation saw not merely attempting to for a to officer weapon Trooper safety was to strike Loney with his at George secure asp in an (George Aff. "from the 21 to use have in his split-second his and Sims's effort to induce SI 9.) perspective At (Id.) could George's both flee SI 8. ) Loney was trying to reach for his pocket. inferred looking Trooper few seconds to Trooper but actively fighting with Officer Sims. the same time, When of This Court, a reasonable officer must on the conclude scene" that and Trooper reasonable. Graham, at Moreover, 20-22). that Trooper having 490 George's U.S. the George's considered at initial 396-97 struck with the did not do so. and arm lock for his five or asp and again Instead, [Loney] blows of force the with 392 U.S. the asp also Although Loney had been commanded to stop resisting, landed by S[ 25.) Trooper Thus, George he leg lock continued to resist and attempted to (Sims Aff. was conclusion "[d]espite the use of the asp, own waistband." six use supports blows constituted a reasonable use of force. Graham factors (citing Terry, record amply subsequent the reach the total of amounted to a reasonable use of force.16 Because this Officer Sims's whether they F.3d at 531 Court actions are (w,If finds were entitled to [an officer] that both reasonable, qualified Trooper it need immunity. George's not and consider Henry, did not violate any right, 652 he is hardly in need of any immunity and the analysis ends right then and there.'" (alteration in original) (quoting Abney v. Coe, 493 16 The Court recognizes that Trooper George did not at all times display the type of measured attitude and professional demeanor that law enforcement personnel continually strive toward, and which courts and the public rightfully expect. (See e.g. , DVD 17:33:48-51 ("Run bitch run. I want it, I want it to happen!"); DVD 18:14:32-46 ("Hell Yeah! 01' Cal Ripkin baby, hell yeah!").) However, in this case, Trooper George's conduct does not change the outcome regarding the Constitutional parameters of Loney's arrest. 22 F.3d 412, Trooper 415 (4th George and Cir. 2007))). Officer Sims Because are both of the foregoing, entitled to summary judgment on Claim 1. B. Loney's Fourteenth Amendment Claim Loney arrestee, became pretrial detainee, once he was lawfully arrested. (citing Martin, the a Fourteenth detainees.17 Fourteenth 849 F.2d at Cobb, 865-66). The the detainee may not an Process Clause of rights be to F.2d at 788 at 395 n.10. U.S. Due 905 490 Id. ; Graham, "a opposed protects Amendment Amendment, as of pretrial Under the punished prior to an adjudication of guilt in accordance with due process of law." Bell, 441 U.S. at 535-36 have been excessive, punishment." 17 "No (citing cases). "[I]n this context, to the use of force must have been intended as Cobb, 905 F.2d at 788.18 State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend XIV, § 1. 18 To determine whether the Due Process Clause has violated with respect to a pretrial detainee, this Court been must consider: such factors as the need for the application of force, the relationship between the need and the amount of force used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Or em v. Rephann, 523 F.3d quotation marks omitted). 442, 23 446 (4th Cir. 2008) (internal Here, Loney makes only a naked, general assertion that excessive force was used against him: (b) Officer Sims and Trooper George and other unknown officers beat me severely; bringing me around with smelling sauce and then beating me unconscious; several times, after forcing me into a major accident. (c) I was beaten by police before I was handcuffed and after emergency room, and out (PL's of Decl. occurred at what after Sims's At the . the unconscious and hands abuse . Mot. Summ. J. SI 4(b)-(c) (internal Loney's other statements about his alleged his ("[P]olice several times. handcuffed. I was beat some more while floating in citation omitted).) specificity was consciousness. Opp'n mistreatment I of police occurred prior arrest. . (See exacerbated bringing me my back fail to his Mot. with state arrest Opp'n injuries around to and Summ. by with what J. beating smelling 1 me sauce There were more than two officers beating me on the scene. I had head trauma from that asp and the accident."); PL's Decl. Opp'n Sims's Mot. shock and incoherent after Summ. the J. SI 7 ("I was in a state of accident in which I was unconscious and brought back around with smelling sauce; beaten several times at the scene of the car accident and the E.R.").) Further, Loney fails to provide specific evidence, make specific accusations, they placed him in F.3d 382, 400-01 that Sims and George struck him after handcuffs. (4th or even See United States v. Cir. 24 2004) Roane, (observing 378 "[a]iry generalities" cannot in internal original; accuses "police" "stave off summary quotation generally. judgment") marks Loney's omitted). 99-3208, (granting did to not particular 134 WL summary references and 2000 F.3d 687672, judgment "officers identify defendants); 878, 887 the Cir. (6th Toledo Drake v. 1998) more specific than the bald assertion of particular matter, rather it requires made by & omitted)); 111. Gabrielle 163, cannot 315 F.3d 817, avoid allegations that Jason As stated previously, Mfg. demands affidavits summary 822 judgment (7th Cir. something that by asserting general ^bothered' her by doing ^nasty stuff.'"). George and Sims unquestionably used force inference George or does with unconscious again, the truth ("Thus, the consciousness cite 2003) below, were Co., Park Forest-Chicago Heights, however, Sims the the general truth of a against Loney to place him in handcuffs; record of (internal quotation marks and citations see also Gabrielle M. v. School Dist. 2000) Division" specific concrete facts establishing the existence of of the matter asserted." beat general any Mining 56 19, Police taken Minn. ("Rule May only (Ohio) action "police he Smith v. Stone, Cir. plaintiff specific see (7th *6 where of any at Instead statement, me," is not enough to survive summary judgment. No. (alteration not the support officers "smelling any who sauce" brought and even presuming that occurred. 25 as explained that Loney then either back beat to him Loney admitted in the Statement combative both before and after his of Facts arrest. that he was (Statement of Facts SISI 4, 6.) Both Trooper George and Simone Sapp asserted in their affidavits that been placed Further, dash in no force was handcuffs. handcuffed, brought belies against (George Aff. the audio on the camera used Loney SI 10; DVD and the time the possibility after he had SI 6.) the in- Sapp Aff. sequence of that, after Loney was either Trooper George or Officer Sims beat Loney and him back around several times, prior to being transported to MCV. At the earliest, 17:37:54 the Loney's arrest concluded at 17:37:54. ("Bring your other hand around!").) in-dash recording system Trooper George muttering to between the two vehicles. is sensitive himself However, as he (DVD The microphone on enough walks to pick back and up forth it picks up no sounds of the beating that Loney claims was occurring at that time. Less on the police than scene two minutes and work: the Trooper later other audio George damage to the vehicles as Court believe George and Sims reveal anything that in to and up are the mundane minutia of another officer assess the other officers search Loney's vehicle and catalogue the results. the picks emergency personnel at (DVD 17:41.) this beating support time him. the Yet, other At no assertion 26 Loney would have officers time that had joined does the audio Loney was being continually beaten, brought back to consciousness, unconscious again during this period. Mot. Summ. J. SI 4(b).) (Decl. and in Opp'n to Sims's Seven minutes pass before Trooper George is asked to prepare Loney for transport. (DVD 17:47.) time, Trooper medical Loney needed a Loney being maneuvered Still, that George nothing Loney can be cervical heard collar onto indicates alleges for a that asking transport. backboard the occurred. vicious Fourteen "He's not here, The has United he can't hurt you now." States Court of Appeals for At that personnel The can sounds then be post-arrest minutes ambulance carrying Loney is presumably gone as Sapp, beaten if of heard. beating later the an officer tells (DVD 18:01:23.) the Fourth Circuit stated: While we have recognized generally that when considering a motion for summary judgment, the district court must "draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion," Tuck v. Henkel Corp., denied, 973 507 F.2d U.S. 371, 374 (4th Cir. 1992), cert, 918 (1993), we hasten to add that those inferences must, in every case, fall within the range of reasonable probability and not be so tenuous as to amount to speculation or conjecture. Thompson 1317, 1323 Sylvia Dev. 1995) ). placed Everett, Inc. v. Nat'l (4th Cir. 1995) Corp. Calvert Cnty., v. Assuming as we must in Cable handcuffs, the Adver., L.P., 57 (parallel citation omitted) 48 F.3d 810, 817 F.3d (citing (4th Cir. that Loney was beaten after being reasonable 27 conclusion (given the DVD audio, the other statements) is evidence, that and the this assault ambiguity of Loney's sworn could have occurred only after Loney had left the scene of the arrest at the hands of officers other than Sims and George. Sylvia Dev. (emphasizing inference light of that the reasonable competing inferences quotation marks omitted). Sims and George did to Corp., must the 48 F.3d at 818 be determined contrary") (internal The evidence is incontrovertible that not leave with Loney (both voices heard on the DVD after Loney had been transported) . and cannot George assertions as true, "The mere used against be the statement him by plaintiff cannot judgment DCN-RSC, 2010 WL 2927479, withstand motion." Dev. Corp., summary evidence 48 judgment, party's] officers 242, 1323 252 be Thus Sims taking even at F.3d "the *3 at quality offered to Here, v. (D.S.C. 818. and create (citing Anderson v. (1986) ) . that his excessive defendants' Patterson adequate to support a jury verdict." F.3d at who, can beat him. summary Sylvia "in To No. July 22, a question 2:09-1298- 2010) overcome of was well-reasoned Brown, quantity force a the of motion for [non-moving fact must Thompson Everett, Liberty Lobby, (citing Inc., Inc., 477 be 57 U.S. Loney has failed to adduce any evidence sufficient to allow a reasonable juror to conclude that Trooper George and Officer Sims used excessive 28 force on him after his arrest. Thus, Trooper George and Officer Sims are both entitled to summary judgment on Claim 2. C. Loney' s First Amendment Claim As entire best as arrest "Official the was a reprisal Constitution First for it an discern, Loney Amendment protected threatens to prohibits individual to retaliatory (internal (2006) original) (quoting n.10, (1998)). induced by an claim.19 exercise government U.S. 592 the ^offends inhibit for speaking out." 256 that retaliation speech criminal prosecutions, 250, alleges the of the and the law is settled that as a general matter Amendment subjecting can First [because] protected right' the court citation Crawford-El To official v. sustain bent on actions, claim from including Hartman v. Moore, omitted; Britton, a officials 523 alteration a U.S. in 574, 588 prosecution that retaliation, 547 was plaintiff must 19 The Fourth Circuit has stated: se Principles requiring generous construction of pro complaints are not, however, without limits. . . [They do] not require [District] courts to conjure up questions never squarely presented to them. District judges are not mind readers. Even in the case of pro se litigants, they cannot be expected to construct full blown claims from sentence fragments. . . . Beaudett 1985). 4th, v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. Here, Loney asserts only that his rights "under the 1st, 5th, and 14th, 2006, but does not (Am. Compl. SI 1.) Amendments" specify what were violated conduct on violates December which 8, right. This leaves the Court to fit his accusations into the scheme of constitutional protections as best as it can. 29 plead Id. and prove at absence of probable cause for his arrest. 265-66. Here, knew his 2006 the Loney asserts that Officer Sims and Trooper identity prior to their pursuit of him on and were part of a conspiracy to deprive George December him of 8, his constitutional rights. Therefore, let the record reflect it is plaintiff s belief that defendants held a sadistic animus toward him for being a spokesman for the Marco Loney For Justice Committee which entailed speaking out against African police American officers men who shoot in cold down unarmed young blood, while pursuing his college career in 1995. And, as a result, of me being in that committee my college career was destroyed by constant police harassment which led up to the following conspiracy to deprive me of my constitutional rights by harboring an evil eye of me through this political view for many years. (Am. Compl. cause SI 5.) Loney does plead that there was for his arrest. SI 9 ("I cannot car, but I do (PL's see the brake know the Decl. light [DVD] no probable Opp'n Sims's Mot. . . . while is tampered").) Summ. J. I'm driving the However, he fails to prove the lack of probable cause. The Statement of Facts reflects that Loney's vehicle had an "inoperable rear center brake light" on the night of his arrest. (Statement having of seen traffic stop, Facts that, SI 1.) would Trooper have probable which they did. elude police in his vehicle, George (Id.) and cause Officer to Sims, initiate a Once Loney attempted to Trooper George and Officer Sims had 30 probable cause incident to to arrest arrest him. revealed eventually incarcerated. (Id. the at (Id. at SISI 5, 2-3.) for drugs SISI which 7-8.) A search Loney Because Loney has failed to prove the absence of probable cause, Officer Sims and Trooper George are entitled to summary judgment on Claim 3. Hartman, 547 U.S. D. at 265-66. neither documents violation. Fifth See Loney's Fifth Amendment Claim Here, other was See Amendment violated, he Loney's Amended has submitted Beaudett, 775 rights Officer Complaint implicate F.2d at have not and Trooper Sims nor a Fifth 1278. been any George are the Amendment Because implicated, of Loney's much entitled less to summary judgment on Claim 4. IV. Further Proceedings By Order issued on May 12, 2011 required to defendant serve or Defendants defendants within 120 days. See R. on Wednesday, August 10, 2011. nor street addresses for Sims, referred Fed. (Docket No. Civ. to P. George as 69), and Unknown 4 (m) . Loney was an unknown Officers #1 That period ended Loney has provided neither names Unknown Officers #1, and apparently Loney has made no attempt to serve them.20 20 The Court notes that on August 31, 2011, Loney submitted a "DECLARATION" requesting automatic disclosure of the identities of Unknown Officers #1 pursuant to Fed. R. Civ. P. 26(a)(1)(A). (Docket No. 105.) Pro se actions by federal 31 It is ultimately Loney's Unknown Officers Accordingly, eleven #1 in Defendant result in dismissal Fed. Civ. P. be Unknown Officers of his Accordingly, No. 76) to Defendant Officer will Summary Judgment ORDERED 2011 Order. show good cause, #1. for not effecting Failure against within to do these so will Defendants. be show GRANTED. good 80) cause Officers George's Conclusion Sims's (Docket No. Unknown objecting to No. Loney's motion 121). claims 12, 41(b). V. (Docket required to serve Defendant the May the date of entry hereof, service on R. accordance with Loney will (11) days of responsibility to for Trooper Summary George's will be GRANTED. for #1. notice Motion not Loney to also substitute (Docket No. 121) Motion for Loney will be effecting has Judgment service on filed a motion counsel is DENIED. (Docket The Clerk is DIRECTED to send a copy of the Memorandum Opinion to Loney and counsel of record. An appropriate Order shall issue. /s/ /*-£-* Robert E. Payne Senior United States District Judge Richmond, prisoners, Virginia however, are exempt from the disclosure requirements of Rule 26(a)(1)(A). Fed. R. Civ. P. 26 (a) (1) (B) (iv) . Therefore no action will be taken on this request. 32
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