United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL CHIEF JUDGE.
the Court is the remaining defendants George Lee II, Tiffany
Smithwick, and Brandon Thacker's ("Defendants")
Motion for Summary Judgment. (Doc. 42.) The Clerk of Court
gave Plaintiff timely notice of Defendants' summary
judgment motion and the summary judgment rules, of the right
to file affidavits or other materials in opposition, and the
consequences of default. (Doc. 47.) Therefore, the notice
requirements of Griffith v. Wainwright, 772 F.2d
822, 825 (11th Cir. 1985) (per curiam), have been satisfied.
Plaintiff filed a response and a sur-reply in opposition to
the summary judgment motion and Defendants filed a reply in
support. (Doc. 64, 70, 72.) The time for filing materials in
opposition has expired, and the motion is ripe for
consideration. Upon consideration of the record evidence,
relevant law, and the parties' respective briefs,
Defendants' motion is DENIED.
midnight and 12:30 a.m. on January 19, 2013, Plaintiff left
his apartment in his 1979 Chevrolet El Camino with the intent
to visit a friend. (Pl.'s Resp. to Defs.' Statement
of Material Facts ("PSMF"), Doc. 65, ¶¶
4-5; see also Hobbs Dep., Doc. 50, at 43-46.)
Plaintiff was subsequently stopped by a Columbia County
Sheriff's Deputy, Defendant Lee, for having allegedly failed
to maintain his lane. (Lee Dep., Doc. 51, at 20-21.) Plaintiff
denies that he failed to maintain his lane or otherwise did
anything justifying the traffic stop. (Hobbs Dep. at 114.)
Plaintiff stopped,  Defendant Lee exited his patrol car and
approached Plaintiff's vehicle. (PSMF ¶ 16; Lee Dep.
at 26-27.) Plaintiff identified himself and informed
Defendant Lee that he was having difficulty locating his
driver's license. (Hobbs Dep. at 69-70; Lee Dep. at 28.)
According to Defendant Lee, Plaintiff "was acting very
nervous, " "was moving around constantly, "
"kept touching the lower left side of his jacket, "
and his "speech was labored" and "eyes were
bloodshot." (Lee Decl., Doc. 42-10, ¶ 7; see
also Lee Dep. at 31.) Defendant Lee returned to his
patrol vehicle to verify Plaintiff's identity and the
vehicle's status, as well as any warrants against
Plaintiff that were outstanding, and "[e]verything came
back valid." (Lee Dep. at 28-30; PSMF ¶ 22.)
Lee then returned to Plaintiff's vehicle and requested
Plaintiff's permission to search his
vehicle. (Hobbs Dep. at 74; Lee Dep. at 30.)
Plaintiff initially refused Defendant Lee's request, who
then told Plaintiff to "wait a minute or hold on"
without further explanation. (Lee Dep. at 30, 49-50; see
also Hobbs Dep. at 74.) After "waiting for a while,
" Plaintiff became restless and consented to the search
of his vehicle. (Hobbs Dep. at 74; see also Lee
Dep. at 30, 49-50; PSMF ¶ 24.) At this time two
additional officers with the Columbia County Sheriff's
Office, Defendants Thacker and Smithwick, arrived on the
scene. (Lee Dep. at 32; Smithwick Dep., Doc. 57,
at 7-9, 15; Thacker Dep., Doc. 52, at 20-23; PSMF ¶ 25.)
Defendant Lee then asked Plaintiff to exit and step to the
rear of Plaintiff's vehicle, where Defendants Thacker and
Smithwick were standing. (Hobbs Dep. at 75; Lee Dep. at 39;
PSMF ¶ 26.)
requested, Plaintiff exited his vehicle and walked towards
Defendants Thacker and Smithwick. (Hobbs Dep. at 74-79; Lee
Dep. at 39; Smithwick Dep. at 9; Thacker Dep. at 23-24.) When
he reached Defendants Thacker and Smithwick, Plaintiff turned
around; without warning, Defendant Smithwick began frisking
Plaintiff from behind. (Hobbs Dep. at 76, 80; but see
Smithwick Dep. at 9; Thacker Dep. at 24-25.) Caught off guard
by Defendant Smithwick's frisking,  Plaintiff put
his hands in the air, began backing up, and stated that he
did not consent to any search of his person. (Hobbs Dep. at
80-82; but see Smithwick Dep. at 9; Thacker Dep. at
24-28.) Defendant Smithwick continued the frisk undeterred.
(Hobbs Dep. at 81-82; Smithwick Dep. at 14-16; Thacker Dep.
her frisk of Plaintiff, Defendant Smithwick felt an item in
Plaintiff's bottom-left jacket pocket and asked Plaintiff
to identify it. (Hobbs Dep. at 82; but see Lee Dep.
at 54; Lee Decl. ¶ 16; Smithwick Dep. at 15-16; Thacker
Dep. at 24-25.) Plaintiff informed her that it was a glass
mason jar containing marijuana. (Hobbs Dep. at 82; Thacker
Dep. at 25, 29.) Without further instruction, Defendants
Thacker and Strickland immediately grabbed Plaintiff's
arms and attempted to force him to the ground. (Hobbs Dep. at
82; but see Lee Dep. at 39-42; Smithwick Dep. at
16-17; Thacker Dep. At 25-26.) Plaintiff was forced to his
knees and - to avoid having his face hit the ground - used
his left hand to prop himself up. (Hobbs Dep. at 82-89; Lee
Dep. at 41-42.) At this point, Defendant Smithwick had
Plaintiff in a headlock, Defendant Thacker was holding
Plaintiff's right arm behind his back, and Defendant Lee
was on Plaintiff's left side. (Hobbs Dep. at 86-87;
but see Lee Dep. at 41-42, 47, 53; Smithwick Dep. at
17-19; Thacker Dep. at 25-27.) Defendant Lee then struck
Plaintiff in the face on or near his left eye. (Hobbs Dep.
at 90-92; Lee Dep. at 42.) After Defendant Lee struck
Plaintiff in the face, Defendants placed Plaintiff in
handcuffs. (Hobbs Dep. at 93-95; Lee Decl. ¶
14; Smithwick Dep. at 20-21; Thacker Dep. at 27-28.)
the incident, a narcotics investigator with the Columbia
County Sheriff's Office, John Seebode, arrived on the
scene. (Hobbs Dep. at 97-98; Seebode Decl., Doc. 42-9, ¶
4.) Mr. Seebode read Plaintiff his Miranda rights and
obtained a Miranda waiver from Plaintiff before interviewing
him. (Hobbs Dep. at 97-100, 115-23; Seebode Decl. ¶ 9.)
An EMT eventually arrived on the scene and asked Plaintiff if
he wanted to go to the hospital for treatment of his
injuries. (Hobbs Dep. at 95-96.) While Plaintiff initially
stated that he wished to go to the hospital, he declined
EMT's offer after one of the Defendants dissuaded him
from seeking medical treatment. (Hobbs Dep. at 96-97.)
Plaintiff was subsequently taken to the Columbia County
Detention Center ("CCDC") for booking. (Hobbs Dep.
at 103-04; see also Doc. 64-1 (Plaintiff's
booking photo).) At approximately 8:17 a.m. on January 19,
2013, Plaintiff was "bonded out and released from [the
CCDC]." (Hobbs Dep. at 105.) Immediately after his
release from the CCDC, Plaintiff went to the emergency room
for his injuries. (Id. at 107-09.)
was subsequently charged with obstruction of a law
enforcement officer and possession of marijuana, and was
issued a "courtesy warning" for failure to maintain
lane. (Hobbs Dep. at 110-12 & Exs. 6, 7, 8.) On or about
June 24, 2013, the aforementioned criminal charges brought
against Plaintiff were dismissed nolle prosequi.
January 20, 2015, Plaintiff filed his present complaint
alleging constitutional violations under 42 U.S.C. §
1983. On November 15, 2016, Plaintiff and all of the
defendants filed a stipulation of dismissal with prejudice as
to defendants Clay Whittle, John Whittle, Lou Ciamillo, John
Seebode, and Columbia County, which the Court granted on
November 30, 2016. (Docs. 63, 69.) The remaining Defendants
now move for summary judgment.
SUMMARY JUDGMENT STANDARD
judgment is appropriate only if "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
Court shall grant summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to summary judgment as a matter of
law. Hickson Corp. v. N. Crossarm
Co., 357 F.3d 1256, 1259, 1260 (11th Cir. 2004);
Fed.R.Civ.P. 56(c). The "purpose of summary judgment is
to pierce the pleadings and to assess the proof in order to
see whether there is a genuine need for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (internal citation omitted).
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the [record
before the court] which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). If - and only if -
the movant carries its initial burden, the non-movant may
avoid summary judgment by demonstrating that there is indeed
a genuine issue as to the material facts of its case.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). Facts are "material" if they
could affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute of those material facts
"is 'genuine' . . . [only] if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party." Id.
ruling on the motion, the Court must view all the evidence in
the record in the light most favorable to the non-moving
party and resolve all factual disputes in the non-moving
party's favor. Matsushita, 475 U.S. at 587. The
Court must also avoid weighing conflicting evidence.
Anderson, 477 U.S. at 255; McKenzie v.
Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th
Cir. 1987). Nevertheless, the non-moving party's response
to the motion for summary judgment must consist of more than
conclusory allegations, and a mere "scintilla" of
evidence will not suffice. Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990); Pepper v. Coates, 887
F.2d 1493, 1498 (11th Cir. 198 9). "The non-moving party
cannot create a genuine issue of material fact through
speculation, conjecture, or evidence that is 'merely
colorable' or 'not significantly
probative.'" Bryant v. Dougherty Cty. Sch.
Sys., 382 Fed.Appx. 914, 917 (11th Cir. 2010) (citing
Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,