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Wade v. Daniels

United States District Court, N.D. Georgia, Atlanta Division

May 9, 2018

Nicholas Wade, Plaintiff,
v.
Solomon Daniels, et al., Defendants.

          ORDER ADOPTING THE REPORT AND RECOMMENDATION IN PART [DKT. 60], GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. 50], DENYING PLAINTIFF'S MOTION TO AMEND [DKT. 63] AND DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL [DKT. 64]

          Michael L. Brown United States District Judge

         Before the Court is the Magistrate Judge's Final Report and Recommendation (“R&R”), which recommends granting in part and denying in part Defendants' Motion for Summary Judgment. (Dkts. 50, 60). Both parties have filed objections. (Dkts. 62, 63). Also before the Court are Plaintiff's Motion to Appoint Counsel (Dkt. 64) and Motion to Amend. (Dkt. 63).

         I. Background

         A. Facts

         In February 2014, Investigators of the DeKalb County Sherriff's Department were looking for Plaintiff to arrest him for the murder of his girlfriend's 18-month old son. Dkts. 50-3 at 2; 50-4 at 2; 50-5 at 2.[1]Investigators Wilson, Jones, and Daniels were part of the search and had reason to believe Plaintiff was armed and dangerous. Id. Investigators Daniels and Wilson met with Jillian Belk, Plaintiff's girlfriend, and asked for help finding Plaintiff. Dkts. 50-3 at 3; 50-4 at 3. Ms. Belk later called the officers, told them that she had arranged to meet with Plaintiff, and agreed to let them follow her to that meeting. Id. Investigator Daniels placed his phone in her vehicle, on mute, so he could hear the conversation between Plaintiff and Ms. Belk. Dkt. 50-3 at 14.

         Ms. Belk met Plaintiff at an apartment complex and drove him to a church parking lot. Dkts. 1 at 7; 50-4 at 5; 50-5 at 3-4. Plaintiff was sitting in the front passenger seat. Dkts. 50-3 at 5-6; 50-4 at 5; 50-5 at 4. The officers followed them in two cars. Id. When the officers heard Ms. Belk say she was scared, they decided to stop her and arrest Plaintiff. Dkt. 50-4 at 5-6. After exiting their vehicles, the officers approached Ms. Belk's car with their weapons drawn, Investigators Jones and Beach on the passenger side, Investigators Wilson and Daniels on the driver side. Dkts. 1 at 8; 50-3 at 5-6; 50-4 at 6.

         Investigator Daniels saw Plaintiff holding a sawed-off shotgun to his own chin. Dkts. 1 at 8; 50-4 at 6. Fearing that Plaintiff might be about to commit suicide, Investigator Daniels yelled, “No, Don't do it.” Dkt. 50-3 at 6. Plaintiff then swung the gun in the direction of Investigator Jones. Dkts. 50-3 at 6; 50-4 at 6; 50-5 at 4. Seeing this movement, Investigator Daniels fired, striking Plaintiff three times - once in the head, once in the shoulder, and once in the leg. Dkts. 1 at 8; 50-3 at 6; 54-5. He told the other officers he had shot Plaintiff, opened the driver-side door of the car, and placed the vehicle in park, keeping Plaintiff at gunpoint because he was still moving. Dkt. 50-3 at 6; 50-4 at 6; 50-5 at 5. Investigator Beach opened the passenger door, placed Plaintiff in handcuffs, and removed the shotgun. Dkt. 50-5 at 5. Investigator Beach asked for bandages with which to tend Plaintiff's wounds. Id. Investigator Jones could not find bandages, but gave Investigator Beach napkins, which she used to apply pressure to the gunshot wounds. Dkt. 50-5 at 5.

         According to Plaintiff, an officer held him down as he lay “slummed [sic] over the B.M.W.'s center console.” Dkt. 54-2 at 1. Plaintiff claims that he had trouble breathing because of blood in his lungs. Dkt. 1 at 9. He claims that he asked the officer restraining him to remove her hands so that he could sit up, but the officer continued to restrain him. Dkt. 54 at 3. Plaintiff struggled against the officer, eventually removing the officer's hands from his head so he could sit up. Dkts. 1 at 9; 54 at 3. Plaintiff claims that when he did so, Investigator Jones struck him in the mouth with his pistol, chipping his tooth. Dkts. 1 at 9; 54 at 3; 54-1 at 2; 54-2 at 1.

         The exact time of the shooting is uncertain but is estimated to have occurred around 2:03 p.m. (Dkt. 50-7). After the shooting, Investigator Wilson immediately instructed another officer on the scene, Investigator Wortham, to request an ambulance. Dkt. 50-4 at 7. The officers communicated “shots fired” over the radio at 2:07, and requested an ambulance at the same time. (Dkt. 50-7). The ambulance arrived on the scene at 2:16, and transported Plaintiff to Grady Memorial Hospital at 2:39. Id. Plaintiff states that he remained in the car without medical aid for thirty minutes. Dkt. 1 at 9.

         Plaintiff was convicted of malice murder and cruelty in the first degree for killing Ms. Belk's son. (Dkt. 50-9). He was also convicted of aggravated assault, aggravated battery, aggravated assault on a peace officer, possession of a firearm during the commission of a felony, and possession of an illegal weapon. (Dkt. 50-10). The assault and weapons charges arose from his possession of the sawed-off shotgun on the day of his arrest and his actions in pointing the shotgun at the officer before being shot. (Dkt. 50-8).

         B. Procedural History

         Plaintiff filed a complaint alleging that (1) Defendants Daniels, Wilson, and Jones violated his constitutional rights based on the use of deadly force in shooting Plaintiff or failing to prevent the shooting, (2) Defendant Spears violated his constitutional rights in depriving him of air following the shooting, (3) Defendant Jones violated his constitutional rights in striking him with a gun while he was handcuffed and in the car, and (4) all four defendants violated his constitutional rights in failing to provide medical care for more than thirty minutes following the shooting. (Dkt. 1). The Magistrate Judge allowed Plaintiff to proceed on his claims of excessive force and deliberate indifference. (Dkt. 4).

         Defendants moved for summary judgment, claiming qualified immunity on all Plaintiff's claims. (Dkt. 50). The Magistrate Judge issued a Final R&R recommending summary judgment on Plaintiff's claims arising from the initial shooting, the alleged deprivation of air, and the alleged delay in providing medical care. (Dkt. 60). The Magistrate Judge recommended the denial of summary judgment on Plaintiff's claim that Investigator Jones used excessive force in striking Plaintiff with a handgun while Plaintiff was handcuffed and sitting in Ms. Belk's car. Id. Investigator Jones objected to that recommendation, challenging the Magistrate Judge's conclusion that Investigator Jones's use of force was unreasonable. (Dkt. 62).

         Plaintiff filed an objection “to every enumeration of the Court [sic] Final Report & Recommendation in regards to the Defendants [sic] Summary Judgment.”[2] (Dkt. 63). Plaintiff also moved to amend his complaint to allege that Investigator Beach, not Investigator Spears, “attempted to prevent [Plaintiff] from sitting up immediately after the shooting.” Id. at 2.

         II. Legal Standard

         When reviewing an R&R, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” United States v. Shultz, 565 F.3d 1353, 1361 (11th Cir. 2009). Absent proper objections, the Court “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law. See Fed. R. Civ. P. 56. The Court must view the evidence in the light most favorable to the non-movant and draw all inferences in favor of the non-movant, but only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009).

         In the context of qualified immunity, the Court “resolve[s] all issues of material fact in favor of the plaintiff, and then determine[s] the legal question of whether the defendant is entitled to qualified immunity under that version of the facts.” Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). The facts, as accepted at this stage in the proceedings, “may not be the actual facts of the case. Nevertheless, for summary judgment purposes, our analysis must begin with a description of the facts in the light most favorable to the Plaintiff.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (internal quotations and citations omitted). So, “[w]ith the plaintiff's best case in hand, the court is able to move to the question of whether the defendant committed the constitutional violation alleged in the complaint without having to assess any facts in dispute.” Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005).

         III. Analysis

         “Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). As such, “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). Qualified immunity allows officials to “carry out their discretionary duties without the fear of personal liability or harassing litigation.” Lee, 284 F.3d at 1194. “When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft, 563 U.S. at 743.

         Qualified immunity may attach only when the officer is “acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 n.19 (11th Cir. 2010). A public official acts within the scope of his discretionary authority where the acts complained of were “undertaken pursuant to the performance of his duties” and “within the scope of his authority.” See Rich v. Dollar, 841 F.2d 1558, 1564-65 (11th Cir. 1988). “Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Id. at 1564-65. Here, there is no question that Defendants acted within the scope of their discretionary authority when arresting Plaintiff. See, e.g., Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016) (officers acting within discretionary authority when arresting a suspect). Plaintiff, thus, has the burden of showing that qualified immunity is unavailable to Defendants.

         The qualified immunity analysis presents two questions: first, whether the allegations taken as true establish the violation of a constitutional right; and second, if so, whether the constitutional right was clearly established when the violation occurred. Hadley v. Guitierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). These distinct questions “do not have to be analyzed sequentially; if the law was not clearly established; [the Court] need not decide if the defendants actually violated the ...


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