United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
Christopher L. Ray, United States Magistrate Judge Southern
District of Georgia
se plaintiff Sammy Brian Morris, detained at Chatham
County Jail, alleges in his 42 U.S.C. § 1983 Complaint
that he was subjected to excessive force. Doc. 1 at 5-6. The
Court granted plaintiff's request to pursue his case
in forma pauperis (IFP), doc. 3, and he returned the
necessary forms. Docs. 4, 5 & 6. The Court now screens
the Complaint pursuant to 28 U.S.C. §
alleges that he fled on foot after a routine traffic stop in
Bloomingdale, Georgia. Doc. 1 at 5. He then became
“inescap[a]bly tangled in a briar patch.”
Id. He claims he fell to the ground before officers
arrived, but that a Bloomingdale officer tased him anyway.
Id. After he had been subdued, a member of the
“Chatham County Narcotics team, ” the Court
assumes that Morris is referring to the County's Counter
Narcotics Team (“CNT”), see Counter
Narcotics Team, https://cnt.chathamcountyga.gov/ (last
visited Jan. 14, 2019), proceeded into the briar patch to
retrieve plaintiff and physically assaulted him. Id.
Morris claims that his arm was broken in this assault and
that he sustained other injuries. Id. He was then
taken to a waiting ambulance where he received treatment for
his broken arm and the other injuries he sustained during his
also claims that after he was escorted to the hospital, he
was sexually assaulted on the loading dock of the hospital.
Id. at 6. According to Morris, CNT officers asked
him “ ‘Where did [he] have all of the drugs
hidden?” Id. “In a very condescending
tone, ” Morris responded that he had drugs hidden on
his person, and a body cavity search was performed.
Id. Morris alleges that the officer performing this
search made inappropriate comments to him during this
initial matter, plaintiff has filed suit against the CNT
itself. Doc. 1 at 4. However, the Police Department, and by
extension its subdivision, is not an entity subject to suit
under § 1983. Lovelace v. DeKalb Cent. Prob.,
144 Fed.Appx. 793, 795 (11th Cir. 2005) (county police
department not a legal entity subject to suit under §
1983); Dean v. Barber, 951 F.2d 1210, 1214 (11th
Cir. 1992) (sheriff and police departments are not considered
legal entities subject to suit), cited by Bunyon v. Burke
Cnty., 285 F.Supp.2d 1310, 1328 (S.D. Ga. 2003). To the
extent Morris believes that the department is responsible as
the officers' employer, claims against local governments,
government officials, or supervisors brought pursuant to
§ 1983 cannot be based upon theories of respondeat
superior or vicarious liability. See Polk Cty. v.
Dodson, 454 U.S. 312, 325 (1981); Monell v.
Dep't of Soc. Servs. of New York, 436 U.S. 658, 691
(1978); Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990). That is, a governmental entity cannot be held
liable just because it employs a tortfeasor. The CNT,
therefore, is not a viable defendant and Plaintiff's
claims against the CNT should be DISMISSED.
has also listed as additional defendants “[a]ny and all
officers and agents involved.” Doc. 1 at 4. Thus, it is
clear from the face of plaintiff's complaint that he is
attempting to sue the various police officers involved in his
arrest, though he apparently does not know their names or any
other individually identifying information. Accordingly, the
Clerk is DIRECTED to amend the caption in
this case to list as defendants Bloomingdale Police
Department, Officer John Doe 1, and Chatham County Police
Department, Officers John Does 2-4.
claims against the officers involved in his arrest sound in
excessive force. To allege excessive force by an officer in
the course of executing an arrest, a plaintiff must assert
that the officer's conduct was objectively
“unreasonable.” Graham v. Connor, 490
U.S. 386, 395-97 (1989). Such a test looks not to the
motivation of the particular officer, but instead examines
whether a reasonable officer would have taken the same
action. Id. at 397. “Determining whether the
force used to effect a particular seizure is
‘reasonable' under the Fourth Amendment requires a
careful balancing of the nature and quality of the intrusion
on the individual's Fourth Amendment interests against
the countervailing governmental interests at stake.”
Id. at 396 (quotes and cites omitted).
Because “[t]he test of reasonableness under the Fourth
Amendment is not capable of a precise definition or
mechanical application, ” . . . its proper application
requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.
Id. The Court examines “the fact pattern from
the perspective of a reasonable officer on the scene with
knowledge of the attendant circumstances and facts, and
balanc[ing] the risk of bodily harm to the suspect against
the gravity of the threat the officer sought to
eliminate.” McCullough v. Antolini, 559 F.3d
1201, 1206 (11th Cir. 2009) (citing Scott v. Harris,
550 U.S. 372, 383 (2007)). “Although some amount of
force is generally needed to subdue a suspect, the amount
used must be reasonably proportionate to the need for
force.” Smith v. LePage, 834 F.3d 1285, 1294
(11th Cir. 2016); see also Scott, 550 U.S. at 383
(observing that in determining whether the Fourth Amendment
was violated, “we must still slosh our way through the
factbound morass of ‘reasonableness.'”).
has adequately alleged that the two anonymous officers
directly involved in his arrest subjected him to excessive
force. As to Officer John Doe 1, Plaintiff did not allege
that he was unresisting or subdued at the time that officer
tased him. He alleges that he was “inescapably
tangled.” Because of the lenient standards applied to
pro se plaintiffs' pleadings, the Court will
assume at this point that this “inescapably
tangled” turn of phrase indicates that Plaintiff was
unresisting and no longer attempting to evade capture.
See contra Mobley v. Palm Beach Cty. Sheriff
Dep't, 783 F.3d 1347, 1355 (11th Cir. 2015)
(reasonable to use taser on fleeing suspect who waded
“into the middle of a pond in what [officers] would
have reasonably assumed was a continuing attempt to evade
capture”). As to Officer John Doe 2, he alleges that he
was beaten and that his arm was broken after he had already
been subdued by Officer John Doe 1. Altogether taken as true,
his allegations against Officers John Does 1 and 2 must be at
this stage, they are enough to warrant a response.
the two officers plaintiff alleges performed the body cavity
search at the hospital, the Fourth and Eighth Amendments
apply. The Eleventh Circuit has held that when a search is
conducted for evidence, “an officer must have at least
a reasonable suspicion that the strip search is necessary for
evidentiary reasons.” Evans v. Stephens, 407
F.3d 1272, 1279 (11th Cir. 2005). The Eleventh Circuit also
noted that this “reasonable suspicion” standard
might be higher when the search involves “touching
genitalia and penetrating anuses.” Id. In that
case “if the search were conducted for purposes
unrelated to security considerations, not only would it
violate the fourth amendment, . . ., but also it may
constitute cruel and unusual punishment under the eighth
amendment.” Tribble v. Gardner, 860 F.2d 321,
325 n. 6 (9th Cir. 1988); cited in Garrett v.
Carter, 2015 WL 150213, *2 (M.D. Ga. 2015). The Court
also looks to the manner in which the searches are conducted.
Powell v. Barrett, 541 F.3d 1298, 1306-1314 (11th
Cir. 2008) (“We also assume, of course, that the
searches are not conducted in an abusive manner.”);
Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005)
(body cavity search violated constitutional rights where
individuals were searched in a broom closet, unnecessary
force was used, individuals were ridiculed, hit, and
penetrated by an object). Here, Plaintiff alleges that two
officers performed a search for drugs, the search occurred in
a public place (the hospital loading dock), and the officers
made derogatory commentary about the search. Taken as true,
this is enough to warrant a response.
conclusion, Plaintiff's claims against the CNT should be
DISMISSED. His claims for violations of the
Fourth and Eighth Amendments by the four unnamed police
officers, are APPROVED for service and the
Clerk is DIRECTED to forward a copy of this
Order, along with plaintiff's Complaint, to the Marshal
for service upon the defendants so that they may respond.
it is time for plaintiff to pay his filing fee. His PLRA
paperwork reflects $29.30 in average monthly deposits. Doc.
5. He therefore owes a $5.86 initial partial filing fee.
See 28 U.S.C. § 1915(b) (1) (requiring an
initial fee assessment “when funds exist, ” under
a specific 20 percent formula). Plaintiff's custodian (or
designee) shall remit the $5.86 and shall set aside 20
percent of all future deposits to his account, then forward
those funds to the Clerk each time the set aside amount
reaches $10.00, until the balance of the Court's $350.00
filing fee has been paid in full.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for ...