United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR' UNITED STATES DISTRICT JUDGE.
the Court is the Magistrate Judge's Report and
Recommendation (Doc. 31), to which objections have been filed
(Doc. 35). After a careful review of the record, the Court
finds the objections to be without merit. Accordingly, the
report and recommendation is ADOPTED as the
Court's opinion in this case. As a result,
Defendants' Motion for Summary Judgment (Doc. 25) is
GRANTED. Additionally, Plaintiff's
Motion to Amend (Doc. 32) is DENIED.
first sought to remedy the deficiencies identified in the
report and recommendation by seeking to amend his complaint.
(Doc. 32.) In the motion to amend, Plaintiff requested this
Court grant his motion and permit him to file his affidavit
attached to the motion that purportedly explained the events
that gave rise to his complaint. The Court has reviewed the
motion and attached affidavit and finds that Plaintiff has
still failed to demonstrate genuine issues of material facts.
In his affidavit, Plaintiff states that "while in full
custody and control of Officer Sykes, with hands cuffs on me
behind my back officer Fowler physically assaulted me"
and that "the cracked damaged tooth caused by Sikes and
Fowler physical assault had to be removed due to the damage
caused by the Officer Sikes or Fowler flashlight that was
shoved into my mouth." (Doc. 31, Attach. 1 at
2.) Plaintiff has repeated the same facts that he
alleged in his complaint. (See Doc. 5).
Plaintiff's objections likewise rely on this affidavit,
and an attached medical document, to contend that there are
genuine issues of material facts that precludes a grant of
summary judgment to Defendants. (Doc. 35 at 3.) The
Magistrate Judge found that Plaintiff's version of the
facts as alleged in the complaint, namely that "no
marijuana was found, that he was choked and slammed on the
hood of the patrol car, and that he suffered cracked
teeth," was clearly contradicted by the video evidence
from the body cameras worn by Defendants. (Doc. 31 at 7.}
After review of the record, the Court concurs with the
Magistrate Judge's finding that Plaintiff's facts are
contradicted by the video evidence. Therefore, as Plaintiff
alleges the same details in his affidavit that was alleged in
his complaint and considered by the Magistrate Judge, the
Court denies Plaintiff's motion to amend as futile.
the Court concurs in the Magistrate Judge's conclusion
that the force used was not excessive. To overcome qualified
immunity, two questions must be answered in the affirmative.
A court must determine whether the facts taken in the light
most favorable to the party asserting the injury, "show
the officer's conduct violated a constitutional
right," and whether that right ``was clearly
established" at the time of the alleged conduct.
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,
2156, 150 L.Ed.2d 272 (2001), modified by Pearson v.
Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172
L.Ed.2d 565 (2009) (holding that courts do not need to
address the Saucier two prong test in sequential
order) . The right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it, however,
the Fourth Amendment protects individuals from the use of
excessive force during the arrest or stop. Graham v.
Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104
L.Ed.2d 443 (1989) . The gratuitous, unwarranted use of force
during the course of an arrest is excessive. Manners v.
Cannella, 891 F.3d 959, 973 (11th Cir. 2018). The
Eleventh Circuit has repeatedly ruled that a police officer
violates the Fourth Amendment, and is denied qualified
immunity, if he or she "uses gratuitous and excessive
force against a suspect who is under control, not resisting,
and obeying commands." Saunders v. Duke, 766
F.3d 1262, 1265 (11th Cir. 2014). The determination of
whether the force used was reasonable is viewed from the
perspective of a "reasonable officer on the scene,
rather than with the 20/20 vision of hindsight."
Graham, 490 U.S. at 396, 109 S.Ct. at 1872.
Qualified immunity applies unless the application of the
reasonable officer standard would "inevitably lead every
reasonable officer to conclude the force was unlawful."
Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir.
2000) . To balance the reasonableness of the force used, a
court must evaluate several factors, including: (1) the
severity of the crime at issue, (2) whether the suspect poses
an immediate threat to the safety of the officers or others,
and (3) whether the suspect is actively resisting arrest or
attempting to evade arrest. Manners, 891 F.3d at
was arrested after Defendants found marijuana on his person.
(Doc. 25, Attach. 3 at 2; Doc. 25, Attach. 5 at 46:11-46:50.)
However, the force alleged here did not arise until after
Plaintiff had been placed in the back of a police cruiser,
handcuffed, and Defendants observed a strong odor of
marijuana emanating from him and realized that Plaintiff had
something in his mouth and believed that Plaintiff was
"eating" marijuana. (Doc. 25, Attach. 3 at 3; Doc.
25, Attach. 6 at 13:09-13:31.) Defendant Fowler removed
Plaintiff from the car and, after numerous instructions by
Defendant Fowler to Plaintiff to spit out the marijuana
and/or plastic bags in Plaintiff's mouth, Defendant
Fowler attempted to manually remove the marijuana. (Doc. 25,
Attach. 3 at 3-5; Doc. 25, Attach. 6 at 13:32-25:20.) At the
time that Plaintiff was subject to the force he alleges,
Defendants believed that he was destroying evidence by
attempting to eat and swallow marijuana and, further, became
worried that he could choke and die on the items.
(Id.) The three factors fall in favor of Defendants.
Plaintiff was arrested for possessing marijuana and, at the
time force was used, was believed to be destroying evidence,
Plaintiff was refusing to spit out the items in his mouth,
and Plaintiff was in danger of choking. Qualified immunity
applies unless the application of the reasonable officer
standard would "inevitably lead every reasonable officer
to conclude the force was unlawful." Nolin, 207
F.3d at 1255. A reasonable officer in Defendants'
position would not conclude that the force used was unlawful.
See also German v. Sosa, 399 F.App'x 554, 556
(11th Cir. 2010) (finding that excessive force was not used
when the defendant officer attempted to prevent the plaintiff
from swallowing what the officer believed to be cannabis and
stating that ``[i]t is constitutional for officers
recognizing an attempt to swallow and destroy what appears to
be narcotics to hold the suspect's throat and attempt to
pry open the suspect's mouth by placing pressure against
his jaw and nose."). This Court grants Defendants'
Motion for Summary Judgment on the grounds that Defendants
are entitled to qualified immunity and because, to the extent
Plaintiff assert claims against Defendants in their official
capacities, Plaintiff has not made out a case that there was
a policy or custom that caused the alleged constitutional
deprivations. As a result, the Court does not reach the
alternative argument that Plaintiff's claim is barred by
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129
L.Ed.2d 383 (1994).
Defendants' Motion for Summary Judgment (Doc. 25) is
GRANTED. As a result, all of Plaintiff's
claims are DISMISSED. Plaintiff's Motion
to Amend (Doc. 32) is DE ...