Opinion
2:19-cv-02277-RMG-MGB
05-19-2021
David Magwood, Jr., Plaintiff, v. Rusty Fowler, South Carolina Department of Natural Resources, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff, through counsel, brings this action under 42 U.S.C. § 1983 and state law. Before the Court is Defendants' Motion for Summary Judgment (Dkt. No. 26). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A) and Local Rule 73.02(B)(2)(d), D.S.C., all pretrial matters in this case were referred to the undersigned for consideration. For the reasons stated herein, the undersigned recommends Defendants' Motion for Summary Judgment be granted.
BACKGROUND
This action arises from events that occurred during Plaintiff's investigatory traffic stop on April 4, 2016. In his Amended Complaint, Plaintiff alleges that Defendant Rusty Fowler (“Fowler”), an employee of Defendant South Carolina Department of Natural Resources (“DNR”) during the events alleged, seized Plaintiff at gunpoint on April 4, 2016. (Dkt. No. 1-2 at 3.) According to Plaintiff, Fowler “seized and confined Plaintiff, aiming a handgun at Plaintiff's body, yelling at Plaintiff beligertly [sic] and snatching Plaintiff's cell phone from Plaintiff's vehicle causing the screen to break and shatter.” (Id.) Plaintiff alleges that he exited his vehicle with his hands raised in the air after Fowler “pulled a dark colored wallet from his person.” (Id.) Plaintiff alleges that during the stop, Fowler: (1) blocked Plaintiff's path of travel with his vehicle; (2) prevented Plaintiff from driving into the intersecting state highway; and (3) forced Plaintiff to stay in front of his vehicle. According to Plaintiff, “Fowler claimed he would call another ‘DNR officer' but was forced to relent after other persons came to the scene.” (Id.) Plaintiff alleges that after this incident, he was “targeted with undue citations, inquiries, and identification checks by Dept. officers leaving Plaintiff threatened and intimidated.” (Id.)
Defendants' pleadings refer to Defendant Rusty Fowler as Raymond Lee Fowler. (Dkt. Nos. 1; 26.)
Plaintiff filed this action in state court on April 14, 2019. His Amended Complaint alleges a § 1983 excessive force claim against both Fowler and DNR as well as state law claims against Fowler for negligence, assault and battery, and emotional distress. (Dkt. No. 1-2.) Defendants removed this action to federal court on August 14, 2019. (Dkt. No. 1.) On November 20, 2020, Defendants filed a Motion for Summary Judgment. (Dkt. No. 26.) Plaintiff filed a response in opposition to the Motion on December 10, 2020 (Dkt. No. 29), to which Defendants replied on December 30, 2020 (Dkt. No. 36). The Motion is ripe and ready for review.
STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
DISCUSSION
Defendants seek summary judgment on all of Plaintiff's claims, asserting that Plaintiff has failed to establish a genuine issue of material of fact sufficient to survive summary judgment. (Dkt. No. 26-1.) More specifically, Defendants assert that: (1) DNR is a state agency immune from suit under § 1983; (2) Fowler is entitled to qualified immunity on Plaintiff's § 1983 claim; (3) Plaintiff's state law claims against Fowler are barred by the South Carolina Tort Claims Act and the statute of limitations; and (4) Plaintiff's state law claims fail as a matter of law.
As an initial matter, Plaintiff's response brief addresses only the arguments specific to his § 1983 excessive force claim against Fowler. (Dkt. No. 29.) In the conclusion section of Plaintiff's brief, he states,
Plaintiff excepts the status of any claim cognizable under the South Carolina Tort Claims Act. Plaintiff is looking to Sec. s.c. 1983 to validate his true concern because the disregard for the [sic] all of the relationships rises to a federal question. The right to be free from unreasonable search and seizure is set-out [sic] in the South Carolina Constitution's Declaration of Rights and the Fourth Amefndment to the United States Constitution. When these rights are violated, and injury occurs, then the loss must be compensated.(Id. at 9.)
Given Plaintiff's failure to address any of Defendants' arguments for the dismissal of his § 1983 claim against DNR and his state-law claims, combined with his statement that the § 1983 claim is his “true concern, ” the undersigned recommends finding Plaintiff has conceded to the dismissal of his § 1983 claim against DNR and his state-law claims. See Matusiewicz v. Florence Cty. Sheriff's Off., No. 4:16-CV-01595-DCC-KDW, 2019 WL 3416616, at *8 (D.S.C. May 30, 2019) (“Where a party fails to respond to the opposing party's argument in support of the opposing party's motion for summary judgment, the party who fails to respond will be found to have conceded to that argument.”), adopted by, 2019 WL 3413385 (D.S.C. July 29, 2019). Accordingly, the undersigned recommends granting summary judgment as to the § 1983 claim against DNR and Plaintiff's state law claims for negligence, assault and battery, and emotional distress. The only claim remaining for the Court's consideration is Plaintiff's § 1983 excessive force claim against Fowler.
Even if Plaintiff had not conceded this claim, as a state agency, DNR is not considered a person for purposes of § 1983. See Bellamy v. Borders, 727 F.Supp. 247, 249 (D.S.C. 1989).
A. Relevant Evidence
Before analyzing the merits of Plaintiff's § 1983 excessive force claim against Fowler, the undersigned first summarizes the evidence most relevant to this claim.
1. Deposition Testimony from Plaintiff and Stacey Way
Both parties have provided deposition testimony from Plaintiff and Plaintiff's friend, Stacey Way, who witnessed a portion of the incident.
a. Combined Testimony
Their combined testimony indicates that on April 4, 2016, Way met up with Plaintiff to run their dogs after coyotes near the Springtown Long-Range Hunting Club (the “Hunting Club”). (Dkt. No. 26-2 at 2-3.) Plaintiff testified that they did not have their guns with them for this coyote chase. (Dkt. No. 29-1 at 5.) Plaintiff and Way were driving around in separate trucks to collect their dogs when the incident at issue happened. (Dkt. No. 26-2 at 2-3.) According to Way, it was “late evening.” (Id. at 6.)
b. Plaintiff's Testimony
Plaintiff testified that as he was trying to collect his dogs, he drove down a road that he thought belonged to the Hunting Club. (Dkt. No. 26-3 at 2-3.) As Plaintiff was “proceeding into the yard to turn around, an older gentleman that was fishing in the pond” approached Plaintiff and told him to get off his property. (Id. at 3.) Plaintiff then “turned around, went back out to the main highway and as [he] was proceeding to the main highway, a dark colored vehicle pulled in front of [Plaintiff's] vehicle when [Plaintiff] was trying to access the main highway and asked [Plaintiff] to back up.” (Id.) Fowler then “stepped out of the truck with a weapon, flashed a dark colored wallet and proceeded to ask [Plaintiff]-yelling and screaming what am I doing on this property.” (Id.) Fowler said, “I'm tired of you people always on my property.” (Id.) He came to Plaintiff's vehicle with a gun and asked Plaintiff to get out of the vehicle-with the weapon pointed at Plaintiff. (Id.) When Plaintiff asked why he had to get out of the vehicle, Fowler opened Plaintiff's door and told him to get out with his hands up, go to the front of the vehicle, and do not move. (Id. at 6-7.) Plaintiff did not hear Fowler identify himself as law enforcement, and he did not know Fowler was law enforcement at the time. (Id. at 4.) Fowler was in civilian clothes in an unidentified vehicle when he initiated the stop. (Id.)
Plaintiff then used the “Zello” app on his phone to “call out . . . to the other people [he] was with about” the stop. (Id. at 4.) Fowler kept his weapon on Plaintiff and asked Plaintiff who he was talking to. (Id. at 7.) Fowler then took Plaintiff's phone and threw it on top of his truck. (Id.) The phone fell off the truck when it vibrated, and it broke. (Id.)
Way was the first person to arrive on the scene. Plaintiff and Fowler were 150 to 200 yards from Way's house at the time. (Id. at 11.) When Way arrived, Fowler “put his hand back on his weapon and asked who [Way] was” and told Way to stand by Plaintiff. At that point, Fowler's weapon “was back on his side or in his pocket or something of that nature.” (Id. at 6.)
Plaintiff estimates the entire incident lasted 45 minutes to one hour, until Fowler ultimately let Plaintiff go. (Id. at 8.) After Fowler left, Plaintiff went to Way's house and called the Colleton County Sheriff's Department. (Id. at 9.) An officer came to speak with Plaintiff and made a police report. (Id.)
c. Way's Deposition Testimony
During his deposition, Way testified that approximately five minutes after he and Plaintiff separated, he heard Plaintiff on Zello calling out and saying “there's a man up here holding me at gunpoint.” (Dkt. No. 26-2 at 5.) When Way pulled up to the scene, Fowler “put his hand on his gun, but his gun was not out [of] his holster.” (Id. at 7.) Fowler's gun was at his right side. He did not draw his gun while Way was at the scene. (Id.) Fowler told Way to get out of his vehicle, put his hands up and walk slowly toward Plaintiff's vehicle, put his hands on the hood, and slowly remove his identification. (Id. at 6.) Fowler did not show Way a badge, but Way recognized him as some sort of law enforcement. (Id. at 7.) Way testified they were “there a while because [Fowler] ran [their] information.” (Id.) Way's cousin, Willis Doberson, and another individual, Craig Grant, then came to the scene. (Id.)
2. Affidavit from Ralph Way
Plaintiff also submitted an affidavit from Ralph Way, wherein he testified, inter alia:
I live within the neighborhood that is the scene of the April 4, 2016 incident that is the subject of this lawsuit....Raymond Lee Fowler is Rusty Fowler and I know him through our passings at the county courthouse and around Walterboro. Rusty was holding David even though the members [of the Hunting Club] and [Plaintiff] tried to explain the situation was about the dogs. I had known Rusty to be clean shaven but, on that day, he was bearded, and his hair was different, so I did not recognize him right away. When I recognized Rusty, I called out to him, and it affected his attitude and he sensed that he was known and identified in a definite way. Rusty appeared to have been drinking alcohol, he was visibly under the influence of alcohol. I was out there at the scene between fifteen and twenty minutes before he moved away. It was late afternoon, but it was not dark or sundown while I was there with them.(Dkt. No. 29-6.)
3. Police Report
Plaintiff has provided a Police Report completed by the Colleton County Sheriff's Office and dated April 4, 2016. (Dkt. No. 29-5.) The “synopsis” portion of the Report states,
On Monday April 4 2016 at approximately 2230 hrs, I Dep Ferrand was dispatched to 41 Ralph Way in Colleton County in regards to a male subject having a firearm pointed at him.
Interview with victim: Upon arrival, I met with David Magwood who stated that while he was locating his hunting dog near the intersection of Liberty Lane and Augusta highway, a dark colored Toyota Tundra pulled up. Magwood stated that a tall man exited the truck, identified himself as a law enforcement officer, and ordered him out of his truck at gun point. Magwood stated that the officer told him to place his hands on the hood of his truck while he searched him and asked why he was there. Magwood stated that he told the officer that he had permission to hunt the land he was on. Magwood claims the officer smelled of alcohol.
Interview with Stacy [sic] Way: I met with Way who stated that while looking for hunting dogs, his friend, David Magwood, contacted him by radio that he was being held at gun point. Way stated that when he arrived he observed the officer holding Magwood at gun point. Way stated that the officer told him to back away.
Officer action taken: Magwood was advised that a report would be completed and issued a case card. A victim form was also completed.(Id. at 4.)
4. Plaintiff's Recording
Plaintiff has also submitted a recording, apparently from his phone. The undersigned's interpretation of this recording is below:
Plaintiff: Hey fellas . . . we got a problem. Come back to the church, this guy's got a gun on me, man....Somebody come help me out. . .
Fowler: Put your hands on the truck, don't you move.
Plaintiff: Yes sir.
Plaintiff: This guy got a gun on me....
Someone asks: “Is it the game warden . . .”
Plaintiff responds: “It's the state police or some guy . . .”(Dkt. No. 35.)
5. Plaintiff's Medical Records
In his response brief, Plaintiff states that he is a United States Army combat veteran and alleges that this incident “intensified his post-war discomforts.” (Dkt. No. 29 at 4.) Defendants have submitted Plaintiff's medical records. (Dkt. No. 26-5.) A “mental health note” dated December 5, 2019, states, inter alia,
Pt [Plaintiff] served 10 years on active duty with 5 deployments. Pt is a Purple Heart Recipient; he was blown up by a roadside bomb in Iraq. This event occurred in 2005.... Pt reports that he's facing a deposition hearing on the 17th of December following the case about the DNR Officer pulling a weapon on him. Pt reports daily and nightly thoughts of the explosion as well as intrusive thoughts about other combat related issues.... Pt reports it's becoming more difficult for him to trust individuals especially since the above incident happened....(Dkt. No. 26-5 at 6.)
6. Fowler's Deposition Testimony
Both parties submitted portions of Fowler's deposition testimony. Fowler testified that he stopped Plaintiff during the “early evening. Between sundown and dark.” (Dkt. No. 29-4 at 3.) He approached Plaintiff after receiving a phone call “from an adjoining property owner” stating that someone was hunting on that person's property. (Id. at 4.) Fowler was home when he received the call and drove to Plaintiff in his undercover vehicle. (Dkt. No. 26-4 at 3.) Plaintiff was sitting in his truck when Fowler approached and they met “face to face” in their trucks. (Dkt. No. 29-4 at 5.) Fowler put his vehicle in park, identified himself as a DNR officer, and showed his badge and credentials. (Id.) Fowler did not conduct any kind of search. He obtained Plaintiff's identification. After Plaintiff got on his cell phone, Fowler took it and placed it on the hood of his vehicle. When he asked Plaintiff “what he was doing down there, ” Plaintiff responded that he was trying to get his dogs. (Id.) Fowler testified that he “never brandished or pointed the weapon.” (Id. at 7.) He put the gun “in the small of [his] back in [his] pants” and it “stayed there the whole time.” (Id.) Fowler thought the incident took about 10 minutes. (Id.) He called the “DNR radio room in Columbia.” When he learned the closest DNR officer was over an hour away, Fowler told the officer not to come. (Id.)
Fowler testified that “within minutes, there were multiple people at the site. Some of them were talking to [Plaintiff].” (Id. at 6.) Fowler asked the new arrivals to “stay out of the conversation” because “they had nothing to do with it.” (Id.)
Fowler spoke with the Colleton County Sheriff's Department later that evening. (Dkt. No. 26-4 at 6-7.)
B. Analysis
Taken in the light most favorable to Plaintiff, the facts indicate that Fowler initiated an investigatory traffic stop, during which he drew his gun and pointed it at Plaintiff for approximately five minutes, until other people arrived at the scene. Fowler believed Plaintiff had been hunting on private property prior to initiating the stop. Defendants argue that Fowler's actions were objectively reasonable under these circumstances, while Plaintiff asserts Fowler's actions amount to excessive force under § 1983.
Plaintiff testified that when Way arrived, Fowler's weapon “was back on his side or in his pocket or something of that nature.” (Dkt. No. 26-3 at 6.) Way testified that he arrived on the scene approximately five minutes after he and Plaintiff first separated. (Dkt. No. 26-2 at 4-6.)
The Fourth Circuit has described this type of claim as “excessive-use-of-weapons allegations” that are a “species” of excessive force claims. Bellotte v. Edwards, 629 F.3d 415, 424 (4th Cir. 2011). Such a claim is “properly analyzed under the Fourth Amendment's ‘objective reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). In applying the objective reasonableness standard, “the question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396-97). Further, proper application of the objective reasonableness standard “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, ” and “[t]he ‘reasonableness' of 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.” Graham, 490 U.S. at 396. “Ultimately, the question to be decided is ‘whether the totality of the circumstances justifie[s] a particular sort of . . . seizure.'” Ray, 781 F.3d at 101 (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
Here, the record does not reveal exactly what crime Fowler believed Plaintiff committed. The deposition testimony indicates Plaintiff may have been trespassing on private property, but in their Motion, Defendants assert Plaintiff was hunting out of season. (Dkt. No. 26-1 at 10.) Regardless, it is undisputed the crime at issue was minor. Given that Fowler was told Plaintiff had been hunting, it was reasonable for him to believe Plaintiff had a gun on him at the time Fowler instigated the traffic stop. However, there is no evidence that Plaintiff displayed a gun during the encounter, nor is there any evidence Plaintiff resisted any of Fowler's directives during the investigatory stop. Given these facts, while it may have been reasonable for Fowler to approach Plaintiff with his weapon drawn given his belief that Plaintiff may have a gun on him, the undersigned cannot find it was reasonable for Fowler to continue to point his weapon at Plaintiff for approximately five minutes, when Plaintiff was suspected only of a minor crime and he complied with all directives. For these reasons, when viewed in the light most favorable to Plaintiff, a jury could find that Fowler's actions were not objectively reasonable and that Fowler violated Plaintiff's Fourth Amendment rights.
Defendants assert that Fowler is nevertheless entitled to qualified immunity on this claim because the law was not clearly established such that Fowler could have understood that his conduct was violating Plaintiff's constitutional rights. (Dkt. No. 26-1 at 10.) “Qualified immunity shields police officers who commit constitutional violations from liability when, based on ‘clearly established law,' they ‘could reasonably believe that their actions were lawful.' Est. of Jones by Jones v. City of Martinsburg, W. Virginia, 961 F.3d 661, 667 (4th Cir. 2020), as amended (June 10, 2020) (quoting Booker v. S.C. Dep't of Corr., 855 F.3d 533, 538 (4th Cir. 2017)); see also Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992) (“Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.”). To determine whether qualified immunity applies, courts conduct a two-step inquiry, in either order: (1) whether a constitutional violation occurred; and (2) whether the right was clearly established at the time of the violation. Jones, 961 F.3d at 667. ‘We do not require a case directly on point' in order to conclude that the law was clearly established so long as ‘existing precedent [has] placed the statutory or constitutional question beyond debate.'” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731 (2011)); see also Meyers v. Baltimore Cty., Md., 713 F.3d 723, 734 (4th Cir. 2013) (“We repeatedly have held that it is not required that a right violated already have been recognized by a court in a specific context before such right may be held ‘clearly established' for purposes of qualified immunity.... [O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” (internal quotations omitted)).
In Bellotte v. Edwards, the Fourth Circuit considered whether defendant police officers were entitled to qualified immunity on a claim that the officers used weapons in an unreasonable and excessive manner during the search of a house. More specifically, police officers executed a warrant search of a house in the middle of the night where one of the residents was suspected of possessing child pornography. Officers entered the home with guns drawn and detained the suspect's wife and her children at gunpoint while the premises were searched.
In analyzing the excessive force claims brought in Bellotte, the court, relying on its earlier decision in Taft v. Vines, held that “[i]nvestigating officers may take such steps as are reasonably necessary to maintain the status quo and to protect their safety during an investigative stop.” Bellotte, 629 F.3d at 425 (quoting Taft v. Vines, 70 F.3d 304, 320 (4th Cir. 1995)). The court concluded that “although ‘approaching a suspect with drawn weapons [is an] extraordinary measure[ ], such [a] police procedure[ ] [has] been justified in this circuit as a reasonable means of neutralizing potential danger to police and innocent bystanders.'” Id. (quoting Taft, 70 F.3d at 320 (alterations in original). The court granted the officers qualified immunity, reasoning that they had good reason to fear for their safety because they were walking into an unsecured room and noting they withdrew their weapons as soon as they realized the plaintiff did not pose an immediate threat to their safety. Id. at 426. (“Once they realized that she did not ‘pose[] an immediate threat to the safety of officers or others' . . . the officers used no force or weapons at all on C.B.” (quoting Graham, 490 U.S. at 396)).
Prior to Bellotte, the Fourth Circuit found an officer was justified in “drawing his gun during” an investigatory stop when the officer had been informed that the owner of the truck plaintiff was driving “was wanted in connection with an assault and was armed and dangerous.” Foote v. Dunagan, 33 F.3d 445, 448 (4th Cir. 1994). Specifically, in Foote v. Dunagan, the court held “[w]here, as here, an officer has been informed by a radio dispatcher that the owner of a vehicle is an armed and dangerous ‘Rambo type' and that he should approach the vehicle with caution, it unquestionably is reasonable for the officer to draw his weapon when approaching the vehicle to question its driver.” Id. (citing United States v. Sinclair, 983 F.2d 598, 602-03 (4th Cir. 1993) (reasonable to draw weapons when stopping suspected drug traffickers who officers had no reason to believe were armed and dangerous); United States v. Taylor, 857 F.2d 210, 213-14 (4th Cir. 1988) (permissible to draw weapons during stop of suspected drug traffickers, one with numerous prior convictions, including assault and assault with intent to murder); United States v. Manbeck, 744 F.2d 360, 376-77 (4th Cir. 1984) (justified safety precaution to draw weapons during stop of tractor-trailer believed to be involved in drug smuggling), cert. denied sub nom. O'Hare v. United States, 469 U.S. 1217 (1985); United States v. Perate, 719 F.2d 706, 709 (4th Cir. 1983) (reasonable precaution to draw weapon during investigatory stop of limousine where chauffeur had reported that passengers appeared to be carrying drugs, and that he feared for his life); United States v. Seni, 662 F.2d 277, 283 (4th Cir. 1981) (drawing gun reasonable safety precaution where officers have reasonable suspicion of criminal activity), cert. denied sub nom. Minton v. United States, 455 U.S. 950 (1982)). The Foote court rejected the excessive force claim on this basis. Id.
More recently, in an unpublished opinion the Fourth Circuit found police officers were entitled to qualified immunity on an excessive force claim where it was assumed “that the officers at the scene approached [plaintiff's] car with their guns drawn and pointed at [plaintiff], removed [plaintiff] from the car, forced her to the ground, and arrested her pursuant to two outstanding felony warrants, one of which was for evading arrest.” Gunsay v. Mozayeni, 695 Fed.Appx. 696, 701 (4th Cir. 2017). The plaintiff was suspected of kidnapping her own daughter during a custody dispute. Id. at 698. After briefly summarizing this § 1983 claim, the court found
Regardless of whether the officers' actions violated [plaintiff's] rights under the Fourth Amendment-a question that we need not, and thus do not, answer-the Public Defendants are entitled to qualified immunity because Plaintiffs fail to identify any decision, or combination of decisions, by the Supreme Court, this Court, or the highest court in Maryland, clearly establishing that, at the time of the incident, the officers' actions violated the Fourth Amendment.Id. at 701.
The Fourth Circuit has also considered similar allegations in relation to claims that an investigatory stop improperly turned into an unlawful arrest. In United States v. Sinclair the court rejected this claim, finding that “it was not unreasonable for the officers in the instant case to employ drawn weapons to stop and frisk” the suspected drug traffickers because the officers reasonably feared bodily harm. 983 F.2d at 603. Similarly, in United States v. Perate, the court held that police officers may block an automobile and draw their weapons when confronted with a situation in which they have been informed that a passenger fears for his personal safety. 719 F.2d 706, 709 (4th Cir. 1983).
Here, Defendants argue that the decisions in Bellotte, Sinclair, and Gunsay support finding Fowler is entitled to qualified immunity. According to Defendants, these cases establish that “a reasonable officer would not know that drawing his weapon to gain control over a suspected poacher for questioning and then putting his weapon away within minutes would be a Constitutional violation.” (Dkt. No. 26-1 at 12.) Given the case law in this circuit, the undersigned is constrained to agree. Plaintiff has not offered any case that would support finding a constitutional violation was clearly established under these facts. In sum, there is no case that establishes that pointing a weapon at a suspect believed to be armed during an investigatory stop, where that suspect is not yet secure, violates the Fourth Amendment.
Here, the undersigned recognizes that the Fourth Circuit has emphasized that “officers using unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen, do not act in an objectively reasonable manner and, thus, are not entitled to qualified immunity.” Meyers v. Baltimore Cty., Md., 713 F.3d 723, 734 (4th Cir. 2013) (emphasis added). Meyers does not bar qualified immunity in this case because Plaintiff had not been secured during the time Fowler's weapon was drawn.
For these reasons, the undersigned recommends Fowler is entitled to summary judgment on Plaintiff's § 1983 excessive force claim.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendants' Motion for
Summary Judgment (Dkt. No. 26) be GRANTED, and this action be dismissed with prejudice.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).