United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Christopher L. Ray United States Magistrate Judge.
pro se and in forma pauperis, plaintiff
Mason Burbank has filed this 42 U.S.C. § 1983 action
alleging agents used excessive force during the execution of
a warrant and his subsequent arrest by a Federal Bureau of
Investigation (FBI) child pornography task force.
See CV418-294, doc. 13; see generally United
States v. Burbank, CR417-44 (charges dismissed and case
closed on June 29, 2017).
alleges that various agents used excessive force by
“unholstering and pointing their pistols at [him]
without provocation, ” “through abusive language
and physical intimidation, ” and by “grabb[ing]
[his] shoulders” and “shoving [him] through the
line of fire of one unknown [ ] agent and manhandling [him]
into a chair in [his] dining room.” Doc. 13 at 1-3.
Agents variously shoved open Burbank's front door,
entered the house, shouted at him (i.e., “f***ing hands
up!, ” “shut the f*** up, ” “face
away from me a******”), and generally menaced him by
having their firearms unholstered and, occasionally, pointed
at him. Id. at 2-3. Two of the agents then
“put their hands on the grip of their pistols”
during questioning, all of which defendant agents William
Kirkconnell and John Schmitt watched without intervening.
Id. at 2. Burbank clarifies that “no weapons
were drawn until agents were inside [his] home, ”
“no handcuffs were used and no tasers were
pulled.” Id. at 3. Nor did the agents
discharge their weapons. See id. at 1-3. But, because they
were armed and had their weapons drawn during their frisk of
his person and initial questioning, Burbank contends he was
“exposed to deadly force for over 2 minutes.”
Id. at 3.
result of the fear of imminent harm he suffered, Burbank had
a migraine and “chest pains” throughout the
encounter, “suffered a seizure within 20 minutes of the
agents leaving, ” and had “anxiety attacks”
and insomnia in the months following. Doc. 13 at 3. He
“suffered intentional infliction of emotional distress,
and humiliation” and continues to have sporadic
nightmares about the agents' presence at his home to
execute a warrant in search of child pornography.
Id. Burbank seeks $815, 000 in compensatory and
punitive damages, as well as nominal damages. Id. at
construed, Burbank alleges that the execution of the warrant,
accompanied as it was by foul language and drawn weapons,
violated the Fourth Amendment. See Albright v.
Oliver, 510 U.S. 266, 274 (1994) (“deprivations of
liberty that go hand in hand with criminal
prosecutions” are properly analyzed under the Fourth
Amendment); Graham v. Connor, 490 U.S. 386, 395
(1989) (Fourth Amendment provides the guide for analyzing
claims that law enforcement officers used excessive force in
the course of an arrest or other seizure). To allege
excessive force by law enforcement, a plaintiff must assert
that the officer's conduct was objectively
“unreasonable.” Id. at 395-97. 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.
Burbank alleges that he was intimidated by agents' drawn
weapons and coarse language, and that a single agent shoved
him into a chair. Doc. 13 at 1-3. Since no force was
necessary to effectuate the execution of the warrant, he
appears to argue, any use of force - whether real or
threatened - was per se unreasonable and excessive.
Even taken as true, as his factual allegations must be at
this stage, they are far from sufficient to muster an
excessive force claim.
“harsh language, ” hands on holstered weapons,
guns drawn while examining his home for threats, and a single
shove - such allegations “amount to no more than the
‘degree of physical coercion,' Graham, 490
U.S. at 396, typically attendant to an arrest.”
Pena-Borrero v. Estremeda, 365 F.3d 7, 12 (1st Cir.
2004) (officer's threat to break down a door and use of
foul language did not violate the Constitution); see
also Wheeler v. Scarafiotti, 85 Fed.Appx. 696
(10th Cir. 2004) (officer “screaming at the defendants
to raise their hand, having his hand near his holstered
weapon, and threatening possible incarceration [ ] was
objectively reasonable”). Given the unknown
circumstances facing the agents as they entered Burbank's
home, their caution in drawing weapons certainly doesn't
seem unreasonable or excessive. See Graham, 490 U.S.
at 396] (“a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight”). Nor does a
single shove to seat Burbank in a chair for questioning rise
to constitutional magnitude. See Id. (“Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge's chambers, violates the Fourth
Amendment.”) (quotes and cite omitted); cf. Alexis
v. McDonald's Restaurants of Mass., 67 F.3d 341,
352-53 (1st Cir.1995) (finding actionable excessive force
claim where officers “suddenly and violently grabbed
and pulled” plaintiff from a restaurant booth and
across the table; handcuffed her hands tightly behind her
back; dragged her from the booth, bruising her legs; hoisted
her by her elbows and carried her to the police car, and then
pushed her in).
emphasizes the possibility of “deadly force” he
was “exposed to” for two minutes, while agents
had their weapons drawn in his home. Doc. 13 at 1-3. But
there is a meaningful difference between the use or the
attempted use of a weapon and mere display by an officer in
the line of duty. Hinojosa v. City of Terrell, 834
F.2d 1223, 1231 (5th Cir. 1988), cited with approval in
Courson v. McMillian, 939 F.2d 1479, 1494 (11th Cir.
1991) (mere display of weapons during investigative stop does
not rise to constitutional violation). Even an
“unnecessary” and “braggadocious”
display of weapons, which “only conditionally threatens
actual force, ” is neither excessive force nor an
unlawful assault under state law for an officer executing his
responsibilities. Hinojosa, 834 F.2d at 1231-32. And
plaintiff's fear of possible harm, and nightmares
suffered since, don't convert that display to an
assault or comprise the kind of extreme or outrageous conduct
that “causes severe emotional distress.”
Jackson v. Dist. of Col., 412 A.2d 948, 955-56 (D.C.
does loud, foul language - on its own, unaccompanied by
threats - comprise force of any kind. Statements
like those cited by Burbank, “like so many others used
by law enforcement to attempt to defuse a situation before
the actual use of force is imminent, [are] not of
[themselves] indicative of bad faith or malice on the part of
the officers.” Bozeman v. Orum, 199 F.Supp.2d
1216, 1230 (M.D. Ala. 2002), on reconsideration in part
sub nom. Bozeman ex rel. Estate of Haggard v. Orum, 302
F.Supp.2d 1310 (M.D. Ala. 2004), and aff'd, 422
F.3d 1265 (11th Cir. 2005); c.f. Johnson v. Ft. Pierce
Police Dep't, 849 F.Supp. 1543, 1546 (S.D. Fla.
1994) (arresting officers yelling at plaintiff and pushing
him to the ground when he did not comply with their commands
quickly enough, resulting in sore muscles and strain, was a
lawful, reasonable use of force). Rough language alone simply
does not create a constitutional violation. Estate of
Redd v. Love, 62 F.Supp.3d 1268, 1279 (10th Cir. 2014)
(“harsh language, threats, and screams directed at
individuals do not violate a clearly established
constitutional right.”). While the Court acknowledges
that “expletives communicate very little of substance
beyond the officer's own personal animosity, hostility or
belligerence. . . the use of such single expletive at someone
who was not heeding an officer's order does not render
the officer's otherwise lawful conduct
unreasonable.” Reeves v. Churchich, 484 F.3d
1244, 1261 (10th Cir. 2007). More generally,
“allegations of rudeness or incivility do not even
constitute an actionable tort under state law, much less a
violation of a constitutional right.” Green v. St.
Lawrence, 2013 WL 4875091 at *1 (S.D. Ga. Sept. 11,
2013) (Chatham County Sheriff's Department staffs'
“rudeness” and “aggressive tone of
voice” during plaintiff's visit to register as a
sex offender “failed to state a colorable claim for
relief under § 1983.”); see also Zherka v.
Amicone, 634 F.3d 642, 645-46 (2d Cir. 2011)
(“Hurt feelings or a bruised ego are not themselves the
stuff of a constitutional tort.”).
alleges, at most, that officers entered his home and used a
modicum of force to ensure he was not armed or otherwise a
danger and seat him in a location they determined necessary
for questioning. Nothing in his Third Amended Complaint even
hints at excessive force in violation of the Fourth
Amendment. And certainly nothing about a display of weapons
or rough language rises to “the requisite level of
outrageousness and egregiousness to sustain a claim for
intentional infliction of emotional distress.”
Garcia v. Shaw Industries, Inc., 321 Ga.App. 48, 52
(2013); see also Bowers v. Estep, 204 Ga.App. 615,
618 (1992) (liability for the tort of intentional infliction
of emotional distress attaches “only where the conduct
has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency and to
be regarded as atrocious, and utterly intolerable in a
civilized community.”) (quotes and cite omitted). Put
differently, and even crediting all his factual allegations,
Burbank's claims of excessive force and intentional
infliction of emotional distress fail and should be
Burbank also complains that he has been
“humiliated” and suffered as a result of the
agents' “intentional infliction of emotional
distress.” Doc. 13 at 3. To the extent that he waves,
ever so slightly, at a defamation claim under § 1983, it
fails as a matter of law. Paul v. Davis, 424 U.S.
693, 711-12 (1976); Walker v. Atlanta Police Dep't
Public Affairs Unit, 322 Fed.Appx. 809, 810 (11th Cir.
2009); Lowe v. Dollison, 2012 WL 1555446 at * 3
(E.D. Tex. Mar. 2, 2012) (“defamation, libel, and
slander are matters for state law and not the proper subject
of a Section 1983 lawsuit.”), cited in Young v.
Heap, 2016 WL 4987331 at *1 (S.D. Ga. Aug. 8, 2016).
Although defamation falls outside § 1983's ambit,
district courts have “supplemental jurisdiction over
all claims that are so related to claims in the action within
[the court's] original jurisdiction that they form part
of the same case or controversy.” 28 U.S.C. §
1367(a). Nevertheless, when a court dismisses all
“claims over which it has original jurisdiction,
” like Burbank's other § 1983 claims, it
“may decline to exercise supplemental
jurisdiction.” Id. at (c). To the extent that
the Court could hear any defamation claim under its
supplemental jurisdiction, it should decline to do so. This
claim too should be DISMISSED.
plaintiff's Third Amended Complaint should be
DISMISSED. This 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 additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).