United States District Court, N.D. Georgia, Atlanta Division
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
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).
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.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.
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.
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
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.
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.
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).
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.
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.
filed an objection “to every enumeration of the Court
[sic] Final Report & Recommendation in regards to the
Defendants [sic] Summary Judgment.” (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.
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).
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
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).
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.
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.
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 ...