Lanier v. Burns

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:22-cv-00078-MR

RICARDO EDWIN LANIER, )

)

Plaintiff, )

)

vs. ) ORDER

)

)

JUSTIN BURNS, et al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment, [Doc. 61], and Defendants’ Motion to Strike Plaintiff’s

Sur-Reply, [Doc. 67].

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Ricardo Edwin Lanier (“Plaintiff”) filed this action

pursuant to 42 U.S.C. § 1983 against Defendants J. Burns and Z. Capps,1

Henderson County Sheriff Officers, while he was a pretrial detainee at the

Henderson County Detention Center (the “Jail”) in Hendersonville, North

Carolina. [Doc. 1, see Doc. 1-7]. Plaintiff’s verified Complaint survived initial

1 The true, full names of these Defendants are Justin Burns and Zane Capps. [See Docs.

61, 62-2]. The Court will direct the Clerk to update the docket accordingly.

review on his Fourth Amendment excessive force claim against these

Defendants. [Doc. 12 at 7-8, 13]. Plaintiff’s remaining claims, including his

Fourth Amendment claim based on Defendants’ alleged unauthorized entry

into Plaintiff’s home, were dismissed for Plaintiff’s failure to state a claim for

relief.2,3 [Id. at 5-7, 13].

Defendants moved for summary judgment. [Doc. 61]. In support of

their motion, Defendants submitted a memorandum, the Affidavits of

Defendant Capps and defense counsel,4 and excerpts from Plaintiff’s

deposition in this matter. [Docs. 62, 61-1 to 61-4]. Defendants argue they

are entitled to summary judgment because the force used in arresting

Plaintiff was objectively reasonable and because they are entitled to qualified

immunity in any event. [Doc. 62 at 4-17].

Thereafter, the Court entered an order in accordance with Roseboro v.

Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements

2 Plaintiff alleged in his Complaint and claimed in his “Proof of Service of Enclosed

Documents” that video footage from police body cameras was included with his Complaint

as “EXHIBIT B.” [See Doc. 1 at 3, 7-12; Doc. 1-5]. No such Exhibit B was filed with the

Court and Plaintiff was advised of such. [4/12/2022 (Court Only) Docket Entry; Doc. 12

at n.2]. To date, no video footage of the incident has been submitted to the Court by

either party and it is not a part of the forecast of evidence before the Court now.

3 Plaintiff sought reconsideration of the Court’s initial review Order to the extent it

dismissed Plaintiff’s claims, which the Court denied. [Docs. 13, 15]. Plaintiff appealed

the Court’s denial of his motion to reconsider [Doc. 30], and the Fourth Circuit dismissed

Plaintiff’s appeal for lack of jurisdiction [Doc. 70].

4 Defendant Burns did not submit an Affidavit in support of the summary judgment motion.

for filing a response to the summary judgment motions and of the manner in

which evidence could be submitted to the Court. [Doc. 63]. Plaintiff timely

responded to Defendants’ summary judgment motion. [Docs. 64]. He

submitted a two-page unsigned “Opposition,” his sworn deposition

testimony, and an unsworn statement purportedly by Plaintiff’s wife, Lakesha

Bunch.5 [Docs. 64, 64-1 to 64-2]. Defendants replied [Doc. 65] and Plaintiff

filed an unauthorized surreply [Doc. 66], which Defendants moved to strike

[Doc. 67]. The Court will grant Defendants’ motion and strike Plaintiff’s

surreply.

This matter is now ripe for adjudication.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

5 This statement appears to have been written and signed by the Plaintiff, not Ms. Bunch.

[See Doc. 64-2]. Even assuming it was prepared and signed by Ms. Bunch, it was not

signed under penalty of perjury and has no evidentiary value here.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th

Cir. 1995).

When ruling on a summary judgment motion, a court must view the

evidence and construe all reasonable inferences and ambiguities against the

movant and in favor of the nonmoving party. Wai Man Tom v. Hospitality

Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020); see Anderson, 477 U.S.

at 255. Facts, however, “must be viewed in the light most favorable to the

nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott

v. Harris, 550 U.S. 372, 380 (2007). That is, “[w]hen the moving party has

carried its burden under Rule 56(c), the opponent must do more than simply

show there is some metaphysical doubt as to the material facts…. Where

the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348,

1356 (1986) (citation and internal quotation marks omitted).

III. FACTUAL BACKGROUND

The relevant forecast of evidence in the light most favorable to Plaintiff

is as follows.6

6 Also included in this forecast is a verified statement prepared by Plaintiff that he attached

as an Exhibit to his Complaint (“Verified Statement”). [See Doc. 1-4]. The Court notes

that there are material discrepancies in and between the Verified Statement and Plaintiff’s

Complaint and summary judgment evidence, which the Court will note as relevant. Also,

in his deposition, Plaintiff insisted that “[t]he court has [the video evidence].” [Doc. 64-1 at

11]. As noted, [n.2 supra], however, this evidence is not before the Court now – and has

never been – and no dispute over this evidence was brought before the Court.

On July 9, 2021, at approximately 12:45 a.m., Defendants Capps and

Burns, along with a third officer, responded to Plaintiff’s residence for a

domestic disturbance call made by Lakesha Bunch, Plaintiff’s wife. [Doc. 62-

2 at ¶ 2: Capps Dec.; Doc. 64-1 at 3]. Defendants had previously responded

to domestic disturbance calls at Plaintiff’s residence and Defendant Capps

had previously arrested Plaintiff for violating a domestic violence protective

order. [Id. at ¶ 3; Doc. 64-1 at 6]. After Defendants and the other officer

arrived, Defendants remained inside and spoke with Ms. Bunch, while the

third officer spoke with Plaintiff, who was wearing boxer shorts, outside.

[Doc. 64-1 at 3, 7]. During the exchange outside, Bunch assured Defendants

that Plaintiff had not assaulted her. [Id. at 4]. Rather, Bunch called the police

to mediate an argument over a credit card. [Id. at 3-4]. Plaintiff and Bunch

refused to leave the home and Plaintiff assured Defendants that he would

not bother Bunch and they would stay separated inside the house. [Doc. 62-

2 at ¶ 5]. The entire interaction lasted approximately 13 minutes. [Doc. 64-

1 at 4]. Defendants and presumably the third officer left the home and

returned to their patrol cars. [Doc. 62-2 at ¶ 5]. As Defendants were leaving

and the door closing, Plaintiff asked Bunch why she called the police.

Plaintiff and Bunch went to the back of the bedroom and “were arguing going

back and forth, back and forth.” [Doc. 64-1 at 4-5]. As Defendants were

leaving, they observed Bunch tearing down the curtains on the windows.7

[Doc. 62-2 at ¶ 6]. Defendants’ forecast of evidence shows that, after Bunch

pulled the curtains down, Defendants observed Plaintiff grab Bunch by the

neck and the back of the right shoulder with his left hand. [Id. at ¶ 6].

Plaintiff’s forecast of evidence, on the other hand, shows that he was on the

other side of the bedroom from Bunch and did not assault her. [Doc. 64-1 at

5]. In either case, after witnessing the curtains come down, Defendants

reentered Plaintiff’s home and went to the bedroom.8 [Doc. 62-2 at ¶¶ 6-7].

Defendant Burns ordered Plaintiff to put his arms behind his back and

Plaintiff complied.9 [Doc. 64-1 at 20, 18]. Defendant Capps, who was

7 In his deposition testimony, Plaintiff testified that, while he and Bunch were arguing in

the bedroom, “somehow the curtains came down. She didn’t pull the curtains down or

anything…. I guess she was messing her clothes or something.” [Doc. 64-1 at 5]. In his

Complaint, Plaintiff alleged that “as they were in the bedroom [he] asked his wife why did

she call the police, which infuriated her, and she got upset and while standing by the

curtains accidentally made the curtains come down.” [Doc. 1 at 8]. Finally, in his Verified

Statement, Plaintiff attested that, once he and Bunch were in the bedroom, he “asked his

wife why did she call the Police, which infuriated her, and she got upset and began pulling

curtains down in the bedroom….” [Doc. 1-4 at 7]. While it is well-established that a party

may not defeat summary judgment by propounding later sworn testimony that conflicts

with previous averments, In re Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011)

(quotation and citation omitted), the allegations in Plaintiff’s Complaint conflict with his

contemporaneously submitted Verified Statement but accord with his deposition

testimony.

8 It is not clear from the forecast of evidence whether the third officer reentered the house.

[See Doc. 64-1 at 13].

9 The parties disagree regarding which Defendant drew his taser and which Defendant

handcuffed the Plaintiff. Plaintiff contends that Defendant Capps drew his taser and that

Defendant Burns handcuffed the Plaintiff. [Doc. 64-1 at 5-6, 18, 20]. Defendants’ forecast

of evidence shows that Defendant Burns drew his taser and that Defendant Capps

approximately five feet from Plaintiff, drew his taser and Defendant Burns

proceeded to handcuff Plaintiff. [Id. at 5, 13]. First, Defendant Burns cuffed

Plaintiff’s right wrist “extremely tight,” but “this didn’t bother [Plaintiff] because

[he’s] used to them officers doing that.” [Id. at 5]. Next, Defendant Burns

proceeded to cuff Plaintiff’s left wrist. The left cuff had some sort of “rough,

rugged edge or something” that, when Burns “closed it real hard,” dug into

Plaintiff’s skin, causing Plaintiff to jump and turn toward Defendant Capps.10

[Id. at 5-6]. Defendant Capps then tased the Plaintiff in the chest, causing

Plaintiff to suffer “excruciating, degenerating pain” for seven to ten seconds.

[Id. at 6, 9; see Doc. 62-2 at ¶ 10]. Plaintiff fell to the ground and was given

verbal commands to roll onto his stomach with his hands behind his back.

He followed commands and Defendants placed him under arrest. [Doc. 62-

2 at ¶ 11]. As Plaintiff was walking out the door, he was told he was being

handcuffed the Plaintiff. [Doc. 62-2 at ¶¶ 8-9]. For the purposes of summary judgment,

the Court adopts Plaintiff’s version as being more favorable to the Plaintiff. See Scott,

550 U.S. at 380.

10 In his deposition, Plaintiff testified that, at this point, “I did come at him with my hands

up or anything….” [Doc. 64-1 at 6 (emphasis added)]. Given the remaining forecast of

evidence before the Court showing that Plaintiff was fully handcuffed with his hands

behind his back at this point, it appears that Plaintiff may have either misspoken during

his deposition and intended to say, “I didn’t come at him with my hands up or anything,”

or that a transcription error occurred. On this point, the Court notes that Plaintiff opted to

review and was allowed to make corrections to the deposition transcript, and he did not

correct this testimony. [See Doc. 64-1 at 24]. For purposes of summary judgment here,

the Court must construe this ambiguity in Plaintiff’s favor and assume that Plaintiff did not

come at Defendant Capps with his hands up.

arrested for assaulting his wife. [Doc. 64-1 at 7].

Defendants escorted Plaintiff to Defendant Burns’ patrol car and

Plaintiff was placed inside. [Doc. 62-2 at ¶ 12]. Defendant Burns called

Henderson County dispatch to have EMS come to the scene and remove

the taser probes. Once EMS arrived, Defendant Capps opened the patrol

car door for EMS to examine the Plaintiff. While the door was open, Plaintiff

threatened Defendant Burns that he, Plaintiff, was going to kill Burns and his

family. [Id.]. After EMS removed the probes, Plaintiff was transported to the

Jail. He appeared before a magistrate and was charged with assault on a

female, communicating threats, and resisting an officer. [Id. at ¶ 15]. These

charges were ultimately dismissed. [Doc. 64-1 at 14].

IV. DISCUSSION

A. Excessive Force

Excessive force claims in the context of an arrest are properly analyzed

under the Fourth Amendment’s “objective reasonableness” standard.

Graham v. Connor, 490 U.S. 386, 394 (1989). Reasonableness must be

evaluated “from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Id. at 396. “The calculus of

reasonableness must embody allowance for the fact that police officers are

often forced to make split-second judgments---in circumstances that are

tense, uncertain, and rapidly evolving---about the amount of force that is

necessary in a particular situation.” Id. at 396-97. “The question is ‘whether

the totality of the circumstances justifies a particular sort of seizure.’” Id. at

396 (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).

In evaluating objective reasonableness, the Supreme Court instructs

courts to consider “the severity of the crime at issue, whether the suspect

poses an immediate threat to safety of the officers or others, and whether he

is actively resisting arrest or attempting to evade arrest by flight.” Graham,

490 U.S. at 396. When a taser is deployed during a seizure, the Graham

factors apply. Estate of Armstrong v. Village of Pinehurst, 810 F.3d 892, 899

(4th Cir. 2016).

Tasing suspects when they do not pose a threat to an officer’s safety

and are not actively resisting arrest is objectively unreasonable and

constitutes excessive force. Meyers v. Baltimore County, Md., 713 F.3d 723,

735 (4th Cir. 2013). See also Cyrus v. Town of Mukwonago, 624 F.3d 856,

863 (7th Cir. 2010) (taser use when misdemeanant was not violent and did

not try to flee but resisted being handcuffed constitutes excessive force). “[A]

police officer may only use serious injurious force, like a taser, when an

objectively reasonable officer would conclude that the circumstances present

a risk of immediate danger that could be mitigated by the use of force.”

Armstrong, 810 F.3d at 905. Moreover, “‘physical resistance’ is not

synonymous with ‘risk of immediate danger.’” Id. As such, the Defendants’

use of force here is only proportional in light of all the circumstance “if

[Plaintiff’s] resistance raised a risk of immediate danger that outweighs the

Graham factors militating against harming [Plaintiff].” Id. (citations omitted).

The relevant forecast of evidence shows that there were at least two

officers in Plaintiff’s bedroom responding to the curtains in the bedroom

coming down. The relevant forecast of evidence further shows that

Defendant Burns had secured Plaintiff’s left wrist in a handcuff behind his

back and, immediately on Burns’ closing the handcuff around Plaintiff’s right

wrist, Plaintiff jumped and turned toward Defendant Capps, with his hands

secured behind his back. The forecast of evidence further shows that

Plaintiff was wearing boxer shorts and had been following commands.

Moreover, there is no forecast of evidence that he was armed or that

Defendants reasonably believed he was armed. Nor does the forecast of

evidence show that Plaintiff was actively resisting. Under this forecast of

evidence, an objectively reasonable officer under the circumstances would

not have perceived Plaintiff’s movement while being handcuffed as creating

a “risk of immediate danger” to the Defendants. Moreover, the forecast of

evidence does not show that Plaintiff was warned that the taser would be

deployed if he did not correct the perceived noncompliance. As such,

construing the forecast of evidence in the light most favorable to the Plaintiff,

none of the Graham factors support the use of force against Plaintiff. The

use of force was, therefore, objectively unreasonable.

B. Qualified Immunity

Defendants argue that, even if the forecast of evidence shows that

Defendants violated Plaintiff’s constitutional rights, they are entitled to

qualified immunity. “Qualified immunity protects officers who commit

constitutional violations but who, in light of clearly established law, could

reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc). The doctrine of qualified immunity “gives

government officials breathing room to make reasonable but mistaken

judgments and protects all but the plainly incompetent or those who

knowingly violate the law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015)

(internal quotation marks omitted).

“To determine whether an officer is entitled to qualified immunity, the

court must examine (1) whether the plaintiff has demonstrated that the officer

violated a constitutional right and (2) whether that right was clearly

established at the time of the alleged violation.” E.W. ex rel. T.W. v. Dolgos,

884 F.3d 172, 178 (4th Cir. 2018) (internal quotation marks omitted). Even

where an officer commits a constitutional violation, that officer is still entitled

to qualified immunity if, in light of clearly established law, the officer could

reasonably believe his actions were lawful. Henry, 652 F.3d at 531.

Here, having concluded that the relevant forecast of evidence shows

that Defendants’ “conduct violated a constitutional right,” the Court examines

whether that right was “clearly established” at the time of Defendants’

actions. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156

(2001). The law is “clearly established” for qualified immunity purposes by

decisions of the U.S. Supreme Court, Fourth Circuit Court of Appeals, or the

highest court of the state where the case arose. Wilson v. Layne, 141 F.3d

111, 114 (4th Cir. 1998) (en banc). This inquiry is limited to the law at the

time of the incident, as “an official could not reasonably be expected to

anticipate subsequent legal developments.” Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S.Ct. 2727, 2738 (1982). “Precedent involving similar facts

can help move a case beyond the otherwise hazy border between excessive

and acceptable force and thereby provide an officer notice that a specific use

of force is unlawful.” Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (per

curiam) (internal quotation marks and citation omitted). For Defendants to

be entitled to qualified immunity, they must not have been on notice that their

conduct violated established law. Hope v. Pelzer, 536 U.S. 730, 741, 122

S.Ct. 2508 (2002). This does not mean “the very action in question [had]

previously [been] held unlawful.” Estate of Armstrong, 810 F.3d at 910.

Rather, the unlawfulness of the action must have been apparent “in light of

pre-existing law.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034

(1987).

The incident here occurred in July 2021. The Court, therefore, will

examine pre-existing law to determine whether Defendants were on notice

that their actions violated established law. In 2013, the Fourth Circuit

concluded that the continued use of a taser in arresting an armed, agitated

arrestee who was advancing toward the defendant officers became

objectively unreasonable once the arrestee dropped his bat, was physically

restrained, and abandoned his resistance. Meyers, 713 F.3d at 733-34. The

Court denied qualified immunity, reasoning that “[t]he use of any

‘unnecessary, gratuitous, and disproportionate force,’ whether arising from a

gun, a baton, a taser, or other weapon, precludes an officer from receiving

qualified immunity if the subject is unarmed and secured.” Id. at 735 (quoting

Park v. Shiflett, 250 F.3d 843, 852-53 (4th Cir. 2001)).

In 2016, in Estate of Armstrong, the Fourth Circuit awarded the officer

defendants qualified immunity in their unconstitutional use of an electric stun

gun in seizing a mentally ill man pursuant to an involuntary commitment

order. The man had wrapped himself around a stop sign, refusing to let go.

The Court reached this conclusion because the constitutional violation,

which the Court characterized as an individual’s “right not to be subjected to

tasing while offering stationary and non-violent resistance to a lawful seizure,

occurred in 2011, when not “every reasonable official would have understood

that” tasing Armstrong was unconstitutional. Id. at 908 (citation omitted). In

so holding, the Fourth Circuit noted that that, “substantial case law indicated

that [the officers] were treading close to the constitutional line.” That is, the

Court “h[ad] previously held that tasing suspects after they have been

secured, and that punching or pepper spraying suspects in response to

minimal, non-violent resistance constitute excessive force.” Id. at 908

(internal citations omitted).

A few months later, in Yates v. Terry, 817 F.3d 877 (4th Cir. 2016),

regarding a defendant officer’s use of a taser to effect the arrest of an

unarmed, unrestrained traffic misdemeanant who moved his head toward the

officer while his hands were on his car, the Fourth Circuit affirmed the denial

of qualified immunity to the officer. The Court concluded that, “it was clearly

established in 2008 that a police officer was not entitled to use unnecessary,

gratuitous, or disproportionate force by repeatedly tasing a nonviolent

misdemeanant who presented no threat to the safety of the officer or the

public and who was compliant and not actively resisting arrest or fleeing.” Id.

at 887 (citations omitted). In Yates, the Court also noted that, in 2003, it had

denied qualified immunity to officers who had used excessive force against

individuals who had not committed any crimes, were secured in handcuffs,

and posed no threats to the officers or others. Id. (citing Bailey v. Kennedy,

349 F.3d 731, 745 (4th Cir. 2003), and Jones v. Buchanan, 325 F.3d 520,

527 (4th Cir. 2003)).

Construing the forecast of evidence, including the identified ambiguity

in Plaintiff’s deposition testimony [n.10 supra], in the light most favorable to

the Plaintiff, as the Court must do here, the Court cannot conclude as a

matter of law that Defendants are entitled to qualified immunity. That is, in

July 2021, in light of pre-existing law, it was clearly established that an

unarmed, restrained individual and was complying with commands and

offering no violent resistance, had the right to be free from the use of

excessive force. The Court, therefore, is constrained to find that Defendants

are not entitled to qualified immunity and will deny Defendants’ motion for

summary judgment. The Court notes, however, that if the jury at trial finds

that Plaintiff was not fully restrained and turned toward and “came at [a

Defendant] with [his] hands up,” Defendants would be entitled to qualified

immunity. See Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005)

(holding that where “a dispute of material fact precludes a conclusive ruling

on qualified immunity at the summary judgment stage, the district court

should submit factual questions to the jury and reserve for itself the legal

question of whether the defendant is entitled to qualified immunity on the

facts found by the jury”).

V. CONCLUSION

In sum, for the reasons stated herein, the Court denies Defendants’

Motion for Summary Judgment.

ORDER

IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary

Judgment [Doc. 61] is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion to Strike [Doc.

67] is GRANTED and Plaintiff’s Surreply [Doc. 66] is hereby STRICKEN from

the record in this matter.

The Clerk is respectfully instructed to update the docket in this matter

to reflect the true, full names of Defendant J. Burns as Justin Burns and of

Defendant Z. Capps as Zane Capps.

IT IS SO ORDERED.

Signed: August 28, 2023

a □□

£ Reidinger ay,

Chief United States District Judge ell

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