Kearney v. Raleigh Police Department, Officer Howard, No. 5:2008cv00156 - Document 67 (E.D.N.C. 2011)
Court Description: ORDER granting 54 Motion for Summary Judgment. The clerk is directed to close the case. Signed by Senior Judge Malcolm J. Howard on 1/20/2011. (Heath, D.)
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Kearney v. Raleigh Police Department, Officer Howard Doc. 67 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:08-CV-156-H DONNELL KEARNEY, Plaintiff, v. BRENT A. HOWARD in his official and individual capacity as an officer of the Raleigh City Police Department, Defendant. This matter is before the court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on defendant Brent A. Howard's motion for summary defendant's motion, [DE judgment #54] In response to plaintiff submitted a letter asserting that defendant's summary judgment memorandum contains "a lot of error [sic] As well as false statements. and unbelievable lies. #59. ) No judgment other response motion has been or reply to and this filed, defendant's matter is II (DE summary ripe for adjudication. STATEMENT OF THE CASE Plaintiff, proceeding pro se, action pursuant to 42 U.S.C. § instituted this civil rights 1983 on March 19, 2008, claiming Dockets.Justia.com that officers after he of fled the Raleigh Police from the officers Department during a assaulted him traffic stop. Plaintiff alleges that his shoulder was dislocated and his ribs were fractured as a result of the incident. Plaintiff seeks $4 million for his pain and suffering. On June 25, 2008, plaintiff filed an amended naming defendant Brent A. Howard ("Officer Howard"), City Police Department, excessive force the court plaintiff asserts to plaintiff's the action. that in detaining plaintiff. dismissed the Raleigh the City of Raleigh Police Department and the City of Raleigh as defendants amended complaint, complaint In his Officer Howard used On December 5, claims against the 2008, City of Raleigh and the Raleigh Police Department for failure to state a claim against either of those defendants. Officer Howard now moves for summary judgment. COURT'S DISCUSSION I. Summary Judgment Standard Summary judgment is appropriate pursuant to Rule 56 of the Federal Rules material fact of Civil exists Procedure and the judgment as a matter of law. 477 U.S. bears the 242, 247 (1986). initial burden when moving no genuine party Anderson v. is issue of entitled to Liberty Lobby, Inc., The party seeking summary judgment of demonstrating 2 the absence of a genuine issue of material fact. Celotex corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met party may not rest pleading, Anderson, 'specific facts on the its burden, allegations or the non-moving denials in his 477 U.S. at 248, but "must come forward with showing that there is a genuine issue for trial.'n Matsushita Elec. Indus. Co. v. zenith Radio Corp., 475 U.S. 587 574, judgment (1986) not 1S factual issues. 125 (E.D.N.C. a (quoting Fed. R. vehicle for the civ. P. 56 (e)). Summary court to resolve disputed Faircloth v. United States, 1993). Instead, 837 F. Supp. 123, a trial court reviewing a claim at the summary judgment stage should determine whether a genuine issue exists for trial. In making inferences favorable Inc., 369 this determination, drawn from to Anderson, 477 U.S. at 249. the underlying the non-moving party. U.S. 654, the 655 (1962) court facts in must the view light most Uni ted States v. (per curiam). the Only Diebold, disputes between the parties over facts that might affect the outcome of the case Anderson, properly preclude 477 at U.S. the 247-48. entry of summary Accordingly, the judgment. court must examine Trboth the materiality and the genuineness of the alleged fact issues Tr in ruling on this motion. at 125. 3 Faircloth, 837 F. Supp. II. Standard of Pro Se Litigants Because plaintiff is proceeding pro se in this matter, his pleadings are not held to the same stringent standards as those of attorneys, see Haines v. Kerner, 404 U.S. 519, but are instead liberally construed by the court. Rowe, 449 U.S. 5, 9 (1980). counsel for plaintiff. 520 (1972), See Hughes v. This court cannot, however, act as Like all litigants, plaintiff is still required to comply with the applicable rules. III. Plaintiff's Failure to Comply with Rules Throughout this proceeding, wi th this court's Procedure. local plaintiff has failed to comply rules and the Federal Rules of Civil For approximately a year, plaintiff failed to inform the court of a change in his address, resulting in an order to compel discovery being entered on December 8, 2009, as well as a hearing and failure to comply wi th discovery. denied defendant's dismissed ordered order as a on defendant's request sanction plaintiff to that for pay his $250 request for On May 5, sanctions 2010, plaintiff's toward the this court complaint noncompliance and costs for be instead incurred by defendant as a result of plaintiff's failure to notify the court of his change scheduling of order, address. giving The plaintiff court further additional conduct discovery and to respond to discovery. 4 amended time both the to The court warned plaintiff that any further failure to prosecute his case, respond to discovery or comply with the orders of this court may result 1n dismissal court's May 5, 2010, of this order, action. Notwithstanding this plaintiff has not served defendant with his initial disclosures pursuant to Rule 26 (a) (1), complied with Rule 33(b) (5) 's requirement that interrogatory responses be signed by the respondent or provided appropriate objections or responses to defendant's requests for production of documents. 1 Of most significance, comply with Rule 36 of the however, 1S plaintiff's Federal Rules of Civil failure to Procedure. Rule 36 permits a party to "serve on any other party a written request to admit, for purposes of the pending action only, the lPlaintiff has provided no documents 1n response to defendant's request for production of documents and his written responses to the requests fail to provide sufficient information regarding the identity, location or availability of the documents requested. As to document production request number 2 seeking copies of "[a]ll documents identified in your answers to Officer Howard's First Interrogatories to you," plaintiff responded as follows: "I hope and wish that me and Brent A. Howard as well as the federal government in Greenville, North Carolina can make some type of agreement or some type of desicion [sic], that will grant me these Royal ties and sent [sic] me free as well. I hope things will work out between us or all of us that is [sic) stuck in the decision making, Sir./f (DE #55-1 at 20.) In response to defendant's request for documents concerning other lawsuits filed by plaintiff against any law enforcement officer or law enforcement agency, penal officer or penal agency, plaintiff offered a similarly unresponsive statement: "I'm all eyes, listening, waiting. Please be reasonable. I ask you Please, do what's right yall [sic] or sir. Because it's hard been [sic] a black man (United Staters] citizen of North Carolina). 5 truth" of any matter that is relevant and not privileged. Mat ters not denied or obj ected to within the time allowed for response are deemed admitted and may be withdrawn upon motion only if withdrawal "would promote the presentation of the merits of the action" and the requesting party would not be prejudiced in maintaining or defending the action on the merits. Fed. R. Civ. P. 36(b). On May 5, 2010, this court extended plaintiff's time for responding to defendant's discovery requests until May 31, 2010. Nevertheless, plaintiff failed to serve defendant with responses to his requests for admission as required by Rule 36 and this Instead, more than two months after court's May 5, 2010, order. his extended discovery deadline had elapsed, plaintiff submitted to the court an unsigned copy of his purported responses, together with a letter addressed "Dear Justice Department." At no point has plaintiff requested any extension of the discovery period or moved to deem timely his responses to defendant's requests for admission. Pursuant Procedure, for to Rule the matters Admissions to judgment memorandum, 19. ) 36 of the contained Plaintiff, Federal Rules in Defendant's attached to are deemed admitted. of Civil First Request defendant's summary (See DE #55-1 at 4 Plaintiff has made no request to withdraw his admissions, 6 and these matters are, purposes of this action. therefore, conclusively established for Fed. R. Civ. P. 36(b). Included among the facts established are the following: • At the time of his arrest on March 23 2006, Raleigh police officers could have reasonably believed that plaintiff had commi tted or was engaged in the commission of a crime; I • The Raleigh police officers had suspicion to conduct an investigatory probable cause to arrest plaintiff; reasonable stop and • Plaintiff was committing a felony at the time of his arrest, and Officers Howard and Caruana could have reasonably believed that Plaintiff was unwilling to submit to arrest; • Plaintiff had a duty to submit to the Raleigh police officers who ordered him to stop, but plaintiff fled from the officers, without legal justification, because he believed that the officers possessed warrants for his arrest; • Plaintiff cannot identify which officer allegedly used excessive force; • On March 23, 2006, the Raleigh police officers used that degree of force which was reasonable under the circumstances to arrest plaintiff; • On March 23, 2006, plaintiff injured his left shoulder when he tripped and fell while fleeing from the Raleigh police officers; • At the scene of his arrest, plaintiff was physically touched by Officer Howard; never • Plaintiff had been charged with Assault by Pointing a Gun and Assault wi th a Deadly Weapon on February 28, 2006; and 7 • Arising from his March 23, 2006 arrest, Plaintiff was charged and convicted of Possession with Intent to Sell and Deliver Cocaine and Assaul t on a Government Official. These facts having been admi tted by plaintiff, there are no genuine issues of material fact precluding summary judgment. Plaintiff's excessive force claim "arises in the context of an arrest or therefore, investigatory "properly protections of the right the 'to 490 U.S. claims 394 the free characterized secure (1989) analyzed reasonableness" of a in as one their standard, individual's the In determining whether Fourth Amendment the arrest was objectively reasonable, factors as "( 1) the against Graham v. Connor, Const. amend. which involves Fourth is, invoking persons (quoting U.S. under and which guarantees citizens force IV) Amendment's a Such "objective "careful balancing" interests government's countervailing law enforcement 396. citizen" seizures' of the person." 386, are of Fourth Amendment, be unreasonable stop against interests. used in the Id. at effecting an the court must consider such the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the officer or others, and (3) whether the suspect was attempting to resist arrest." or evade Henry v. Purnell, 619 F.3d 323, 331 (4th Cir. 2010). 8 Pursuant to Rule 36, degree of force used to plaintiff has admitted both that the arrest him was reasonable under the circumstances and that Officer Howard never physically touched plaintiff at the scene of his arrest. Based on these facts, Officer Howard cannot be held liable to plaintiff for excessive use of force at the time of plaintiff's arrest. plaintiff has failed recovery pursuant to demonstrate to 42 U.S.C. § that 1983, he has Accordingly, a right of and Officer Howard is entitled to judgment as a matter of law. CONCLUSION For the foregoing reasons, motion for summary judgment the [DE #54] . court GRANTS defendant 's The clerk is directed to close this case. This frO 1lt day of January 2011. ~~ _ ~ J~ MALCOLM Senior United States District Judge At Greenville, NC #31 9
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