Young v. Lacy

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

LARRY ARNOLD YOUNG,

Plaintiff,

v. CIVIL ACTION NO. 1:17-03633

T.A. LACY; PERRY RICHMAN;

and AARON YOUNG,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is defendants’ Amended Motion for

Summary Judgment. ECF No. 53. By Standing Order, this matter

was referred to United States Magistrate Judge Cheryl A. Eifert

for submission of findings and recommendations regarding

disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate

Judge Eifert submitted her Proposed Findings and Recommendation

(“PF&R”) to the court on May 11, 2018. ECF No. 57.

In accordance with the provisions of 28 U.S.C. § 636(b),

plaintiff was allotted fourteen days, plus three mailing days,

in which to file any objections to the PF&R. The failure of any

party to file such objections within the time allowed

constitutes a waiver of such party's right to a de novo review

by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

1989). Plaintiff and Defendants filed objections. ECF Nos. 58,

60.

I. BACKGROUND

A. Underlying Criminal Prosecution

On July 20, 2016, Mercer County Detective-Sergeant S.A.

Sommers received an investigation referral from the Mercer

County Prosecuting Attorney’s Office alleging Larry Young

(“plaintiff”) sexually assaulted a six-year-old female. ECF No.

53-1. After reviewing the alleged victim and her nine-year-old

sister’s interview taken by Child Protect of Mercer County,

Sommers and other deputies went to plaintiff’s home and arrested

plaintiff without a warrant on July 22, 2016. Id. A criminal

complaint was then filed against the plaintiff charging him with

First Degree Sexual Assault and First Degree Sexual Abuse. See

ECF No. 53-2. The magistrate judge determined that probable

cause existed, and the grand jury returned a three-count

indictment against the plaintiff alleging “Sexual Assault-First

Degree,” “Sexual Abuse by a Parent, Guardian, Custodian or

Person in a Position of Trust,” and “Sexual Abuse – First

Degree”. ECF Nos. 53-3; 53-4. After a trial, a jury acquitted

the plaintiff on all charges on March 15, 2018. ECF No. 55 at

p.3.

B. Instant Complaint

Before the criminal trial was held, the plaintiff brought

this action, alleging five claims of civil rights violations by

three (3) defendants, Deputy T.A. Lacy, Perry Richmond, and

Aaron Young.1 The plaintiff claims that Lacy illegally searched

his residence, falsely arrested him, and used excessive force

during the arrest. See ECF No. 1. Plaintiff also claims, while

detained awaiting trial, Richmond and Young used excessive force

against him after the conclusion of two pretrial hearings. Id.

C. PF&R and the Parties’ Objections

In Magistrate Judge Eifert’s PF&R, she recommended this

court deny summary judgment as to plaintiff’s claims that Lacy

engaged in an unlawful search of the plaintiff’s residence and

falsely arrested him. However, the PF&R recommended the court

grant defendants’ summary judgment as to all three claims of

excessive force. ECF No. 57.

Both parties filed objections to the PF&R. ECF Nos. 58,

60. Defendants claim that plaintiff was not falsely arrested.

ECF No. 58. Plaintiff continues to claim that Lacy, Richmond,

and Young used excessive force against him. ECF No. 60.

Therefore, each of plaintiff’s claims are at issue except Lacy’s

unlawful search wherein the magistrate judge recommended

defendants’ motion for summary judgment be denied. The court

now addresses each claim placed into controversy by the parties’

objections.

1 The employment positions of defendants, Perry Richmond and

Aaron Young, have not been identified to the court at this time.

II. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides:

The judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law.

The moving party has the burden of establishing that there is no

genuine issue as to any material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). This burden can be met by

showing that the nonmoving party has failed to prove an

essential element of the nonmoving party's case for which the

nonmoving party will bear the burden of proof at trial. Id. at

322. If the moving party meets this burden, according to the

United States Supreme Court, “there can be ‘no genuine issue as

to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial.” Id. at 323.

Once the moving party has met this burden, the burden shifts to

the nonmoving party to produce sufficient evidence for a jury to

return a verdict for that party.

The mere existence of a scintilla of evidence in

support of the plaintiff's position will be

insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff. The judge's

inquiry, therefore, unavoidably asks whether

reasonable jurors could find, by a preponderance of

the evidence, that the plaintiff is entitled to a

verdict . . .

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “If

the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” Id. at 250–51.

III. DISCUSSION

A. FALSE ARREST

While the plaintiff never explicitly made a claim for false

arrest, Magistrate Judge Eifert perceived that plaintiff’s

Amended Complaint contained such a claim from the following

statement:

T.A. Lacy did sneak up behind me, grabbed my hand, twisted

my arm behind my back maiming my left wrist. Arrested me

without an Arrest Warrant . . .

ECF No. 33 at p.7; see also Beaudett v. City of Hampton, 775

F.2d 1274, 1278 (4th Cir. 1985) (emphasizing imputed duty of

liberal construction for pro se plaintiffs). Defendants did not

perceive a false arrest claim and as a result, their motion for

summary judgment did not use any ink arguing the issue. See

generally ECF No. 54. Now, given defendant’s opportunity to

brief the issue, the court reviews whether Lacy had probable

cause to arrest the plaintiff.

The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the place or things to be searched.

U.S. Const. amend. IV. Thus, because arrests are “seizures” of

“persons,” the Fourth Amendment establishes that arrests must be

justified by a finding of probable cause. See id.

Warrantless arrests are permitted where there is probable

cause to believe a felony has been committed by the arrested

individual, based upon “the totality of the circumstances.”

Illinois v. Gates, 462 U.S. 213, 230-31 (1983); United States v.

Watson, 423 U.S. 411, 424 (1976) (holding warrantless arrests to

be permitted if the officer has probable cause to believe a

felony has been committed, even if committed outside the

officer’s presence). If an arrest is made without a warrant, a

defendant must be brought before a judicial officer without

unnecessary delay to make the determination of whether probable

cause existed at the time of the arrest. See Fed. R.Crim.5.

Recently, the Supreme Court explained the legal landscape

for warrantless arrests in D.C. v. Wesby,

To determine whether an officer had probable cause for

an arrest, we examine the events leading up to the

arrest, and then decide whether these historical

facts, viewed from the standpoint of an objectively

reasonable police officer, amount to probable cause.

Because probable cause deals with probabilities and

depends on the totality of the circumstances, it is a

fluid concept that is not readily, or even usefully,

reduced to a neat set of legal rules. It requires

only a probability or substantial chance of criminal

activity, not an actual showing of such activity.

Probable cause is not a high bar.

138 U.S. 577, 585–86 (2018) (emphasis added; citations and

internal quotations omitted). Moreover, the court considers the

facts leading up to the arrest in their totality since “the

whole is often greater than the sum of its parts.” Id.

Therefore, if “the facts and circumstances within [the

Sheriff’s Department’s collective] knowledge . . . warrant a

prudent person in believing that the [suspect] had committed or

was committing an offense,” Beck v. Ohio, 379 U.S. 89, 91

(1964), an officer of that agency, acting in good-faith reliance

upon such “facts and circumstances,” has probable cause to

effectuate an arrest. U.S. v. Hensley, 469 U.S. 221, 232

(1985).

Reviewing in the collective the factors leading to the

plaintiff’s arrest, the court determines that there was

sufficient probable cause for Lacy to arrest the plaintiff

without a warrant.

Before arresting the plaintiff, Detective-Sergeant Sommers

was responsible for investigating the complaint against

plaintiff. Sommers initially received an investigative referral

from the Mercer County Prosecuting Attorney’s Office on July 20,

2016. ECF No. 53-1 at p.3. From this report, Sommers learned

that the six-year-old alleged victim and her nine-year-old

sister had been interviewed by Child Protect of Mercer County.

Id. In this interview, the six-year-old alleged victim stated

that she:

rode to [plaintiff’s] residence to get a pop. While

in the residence Larry took her to his bedroom, shut

the door, and sat on the bed. While sitting on the

bed [plaintiff] pulled her underwear down a little,

and put his finger in her “V”; she later identified

her vagina as her “V”. She then stated that the

accused took out his private, grabbed her hand, and

made her touch it, describing his private as being

greasy. She also disclosed that prior to arriving at

his residence he was rubbing her sister’s [] leg in

his truck.

ECF NO. 53-1 at p.3. Four days after the alleged victim was

interviewed, Child Protect of Mercer County interviewed the

alleged victim’s sister, who made statements that the plaintiff

took her and her sister to plaintiff’s home “to get a pop” and

“rubbed her leg above her clothes.” Id. During the interview,

the alleged victim’s sister further disclosed that she was told

by the alleged victim that the alleged victim had been assaulted

by the plaintiff, and then the sister told this information to

their mother. Id. at pp. 3-4. The alleged victim’s mother then

called 911. Id. After reviewing Child Protect of Mercer

County’s interview with the alleged victim and her sister,

Sommers confirmed with the alleged victim’s mother the alleged

assault. Id. at p.4.

The consistent statements of the alleged victim, the

alleged victim’s nine-year-old sister, and their mother indicate

a reasonable probability that the plaintiff committed sexual

assault. See Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th

Cir. 1991) (“It is surely reasonable for a police officer to

base his belief in probable cause on a victim's reliable

identification of his attacker. Indeed, it is difficult to

imagine how a police officer could obtain better evidence of

probable cause than an identification by name of assailants

provided by a victim, unless, perchance, the officer was to

witness the crime himself.”) (internal citation omitted).

Moreover, the interview of the six-year-old alleged victim

graphically details the plaintiff’s alleged actions.

Furthermore, although not conclusive to the court’s

decision, the court considers the fact that after the

defendant’s arrest, a county magistrate judge determined that

there was probable cause to believe that plaintiff had committed

the offenses he was arrested for.

Therefore, the information shared with the police by the

alleged victim’s mother, that was corroborated by consistent

statements made by the six-year-old alleged victim and the

alleged victim’s nine-year-old sister in the interview conducted

by Child Protect of Mercer County, establishes a reasonable

probability, and thus probable cause, that the plaintiff

committed the crime he was arrested for. See, e.g., Gates, 462

U.S. at 242 (explaining that “in making a warrantless arrest an

officer may rely upon information received through an informant,

rather than upon his direct observations, so long as the

informant's statement is reasonably corroborated by other

matters within the officer's knowledge.”).

Plaintiff contends that the Sheriff’s Office deliberately

ignored exculpatory evidence. Specifically, plaintiff asserts

that he asked Lacy and the other members of the Sheriff’s

Department to watch surveillance footage, which allegedly showed

that the putative victim never entered the premises on the date

in question, and they did not do so. ECF No. 60 at p.11.

However, as documented in the Report of Investigation, Sommers

did in fact investigate the cameras as requested by plaintiff,

and they discovered that: (a) there was no surveillance camera

“on the church across the street,” as indicated by plaintiff;

and (b) the cameras mounted at the residence were either not

working or had poor quality. ECF No.53-1 at 4. In fact,

plaintiff acknowledged that “one line going to the camera

filming my son’s house had been bitten into by a kitten.” ECF

No.60 at p.11. Plaintiff explained that, “[a]ll that was

required to activate it was to roll the place where the kitten

bit into the wire between your fingers and the camera would come

back on picture perfect.” Id. Based upon these statements,

there is not a genuine issue of material fact as to whether the

camera(s) were in a functioning state.

Therefore, it cannot be concluded that the Sheriff’s Office

deliberately ignored exculpatory evidence, as plaintiff argues,

because the Sheriff’s Office attempted to view the camera

footage. The Sheriff’s Office justifiably determined that the

cameras were not a source of evidence they could view. Based

upon the parties’ statements and the record, there is not

conflicting evidence as to whether the camera(s) were in a

working state, and thus it cannot be concluded that viewing the

footage would have impacted a finding of probable cause prior to

the arrest.

Next, plaintiff contends that the investigation was tainted

because “Sommers is the double first cousin to the accuser.”

ECF No. 60 at p.3. However, even if Sommers is related to the

alleged victims, the facts of this case clearly indicate that

probable cause was present to arrest the plaintiff.

Finally, plaintiff’s objections stated that because he was

proven not guilty on all counts, Lacy was not justified in

arresting him. ECF No. 60 at p.1. Again, the standard the

court must consider is whether under the totality of the

circumstances at the time of the arrest, Lacy had probable cause

to arrest him. See Gates, 462 U.S. at 230-31. The fact that the

plaintiff was later found not guilty is irrelevant to the

determination of whether the arrest was constitutional.

Accordingly, the arrest made by Lacy was supported by

probable cause, where Lacy reasonably relied upon Sommers’

investigation which found probable cause from the corroborating

statements made by the putative victim, the putative victim’s

mother, and the putative victim’s nine-year-old sister. Thus,

even viewing the evidence in the light most favorable to the

plaintiff, the court concludes that the arrest was based on

probable cause and that the plaintiff suffered no violation of

his Fourth Amendment constitutional rights by being arrested by

Lacy. Therefore, the court finds that no genuine issue of

material fact exists as to whether Lacy violated the plaintiff’s

Fourth Amendment rights by allegedly falsely arresting plaintiff

and grants the defendant’s motion for summary judgment.

B. Excessive Force

Plaintiff’s objections to the PF&R may be summarized as follows:

T.A. Lacy has no cause sneaking up behind me and

twisting my left arm up high behind my back cracking

something in my wrist causing excruciating pain and

suffering ever since that moment on 7/22/2016. On

7/26/2016 Perry Richmond had no cause sneaking up

behind be (sic), jerking me up from defendant’s table,

slinging me around is the courtroom, pushing me out

into the hallway causing at least a disc to slip in my

lower spine. On 6/22/17 Arron (sic) Lacy had no cause

pawing me by my right shoulder and neck, hooking his

fingers in my shirt collar and jerking me down in the

County’s unequipped with feet rests wheelchair in an

awkward twisted position causing at least a pinched

nerve in my lower spine causing a constant agitating

pinch on the right side of my lower spine ever since

that moment and cannot get in a comfortable position.

I live in constant pain and suffering 24/7 due to the

actions toward my-self by these three defendants.

Therefore, Plaintiff has demonstrated that genuine

issues of material fact exist to the unjustified

assaults from behind by all three defendants . . .

ECF. NO. 60.

For both claims of excessive force (during arrest and post-

arrest), defendants denied plaintiff’s claims, asserted their

right to qualified immunity, and moved for summary judgment. ECF

NO. 22,53.

The defendants assert “they are entitled to qualified

immunity from liability because these defendants acted lawfully

in all actions taken by them with regard to plaintiff.” ECF NO.

22 at p.2. The Supreme Court has explained that the doctrine of

qualified immunity protects government officials “from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). A right is clearly established only

if “a reasonable official would understand that what he is doing

violates that right.” Carroll v. Carman, 135 S. Ct. 348, 350

(2014).

The Supreme Court has set forth two factors for resolving

the qualified immunity claims of government officials. See

generally, Pearson v. Callahan, 555 U.S. 223 (2009). In

deciding whether government officials are protected by qualified

immunity, the court must decide whether the facts that a

plaintiff has shown make out a violation of a constitutional

right. Id. at 201. Additionally, the court determines whether

the right at issue was “clearly established” at the time of

defendant's alleged misconduct.2 Id.

i. Lacy’s Alleged Excessive Force During Arrest

Magistrate Judge Eifert found that Lacy was entitled to

summary judgment regarding plaintiff’s Fourth Amendment claim

for excessive force during an arrest because there was no

genuine issue of material fact concerning the constitutionality

of the arrest. The court agrees with and affirms Magistrate

Judge Eifert’s finding for summary judgment in favor of

defendants. The court further finds that Lacy is entitled to

qualified immunity because the facts do not establish that

plaintiff’s constitutional right against excessive force during

his arrest was violated. See Pearson, 555 U.S. at 243 (holding

that “petitioners [were] entitled to qualified immunity because

[they] . . . did not violate clearly established law.”).

“When a plaintiff has alleged that an officer employed

excessive force in making an arrest, the federal right is the

2 Because the Fourth Amendment right against unreasonable

seizures and a pretrial detainee’s right against the use of

excessive forth, flowing from the Due Process Clause of the

Fourteenth Amendment, are clearly establish, it is unnecessary

for this court to analyze this portion of the qualified immunity

inquiry. See U.S. Const. amends. IV, XIV.

Fourth Amendment right against unreasonable seizures.” Smith v.

Ray, 781 F.3d 95, 100 (2015). To determine whether a Fourth

Amendment right against the use of excessive force during an

arrest has been violated, the court considers whether the force

applied in effecting the arrest was objectively reasonable given

the facts and circumstances confronting the officer at the time

of the arrest. See id. at 101 (citing Graham v. Connor, 490

U.S. 386, 397 (1989)). To determine reasonableness, the court

looks to three factors: (1) the severity of the crime (2) the

extent to which the suspect posed an immediate threat to the

safety of the officers or public; and (3) whether the suspect

actively resisted arrested. Id. Additionally, the seriousness

of any injury is considered by the court in determining whether

the amount of force was excessive. See Smith v. Murphy, 624

F.App’x 914, 917 (4th Cir. 2015).

Here, the alleged crime was severe. Plaintiff was being

arrested for felony sexual assault of a minor. As Magistrate

Judge Eifert pointed out, this factor weighs in favor of Lacy

applying some degree of force to handcuff plaintiff. ECF NO. 57

at p.18. As to the second and third factors, however, there is

no assertion that plaintiff posed an immediate threat to the

safety of the officers or the public nor is there evidence that

plaintiff actively resisted arrest. Of course, these two

factors do not weigh in favor of the greater force being applied

during the arrest. Nevertheless, these factors are not

conclusive and are to be given weight in accordance with the

force applied in the arrest. See, Waterman v. Batton, 393 F.3d

471, 481 (4th Cir. 2005) (explaining that to properly consider

the reasonableness of force employed we must “view it in full

context, with an eye toward the proportionality of the force in

light of all the circumstances.”).

During the arrest, plaintiff alleges that he was standing

in the driveway speaking to the police officers, when Lacy

“[snuck] up behind [him] and twist[ed] [his] left arm up high

behind [his] back cracking something in [his] wrist. ECF NO. 33

at p.2. However, defendants argue that Lacy applied a

handcuffing method that is “a relatively common and ordinarily

accepted non-excessive way to detain an arrestee.” ECF NO. 54

at p.9. Defendants also argue that there is no evidence on the

record that establishes the force used by Lacey was excessive.

ECF NO. 54 at p.10.

Lastly, the court considers the severity of plaintiff’s

wrist injury, which is allegedly a result of the arrest. In

response to the PF&R finding that “[d]espite plaintiff’s claim

that he suffered permanent wrist injury, he has not offered any

actual evidence . . .”, plaintiff explained that “[in the]

S.R.J. in Beckley, there is practically no medical assistance.”

Id. at 12. The plaintiff also objected by stating that an x-ray

he had done on his wrist came back negative although he was in

pain, and “[o]ne Doctor just visually [] stated that it was

messed up[]” without providing any detail as to the infirmity.

Id. at 12-13. This lack of evidence undercuts plaintiff’s

argument that Lacy used excessive force in executing the arrest.

Thus, the court finds that plaintiff has failed to provide any

evidence that his wrist is injured from the arrest or is injured

to the level of severity that plaintiff contends.

As Magistrate Judge Eifert explained in the PF&R, Fourth

Circuit district court decisions indicate that the violent

handcuffing involving the twisting a suspect’s arm, absent

additional factors, may be insufficient to constitute excessive

force. See Machie v. Manger, No.09-CV-2196-AW, 2013 WL 3353740,

at*10 (D.Md. July 2,2013),aff’d sub nom. Machie v. Demme, 564 F.

App’x 17 (4th Cir. 2014) (holding that “the violent handcuffing

and the twisting of [the suspect’s] arm, on its own, may be

insufficient to constitute excessive force,” but the violent

handcuffing, twisting of the suspect’s arm, and the smashing of

the suspect’s head into the wall, when taken together, possibly

constituted a valid claim of excessive force, especially given

the undisputed fact that the suspect did not resist arrest.).

Based upon the above-mentioned evidence, Lacy’s arrest of

the plaintiff was objectively reasonable. He arrested plaintiff

for a federal offense based upon probable cause, and although it

is likely he used force to pull the plaintiff’s arms behind his

back, the plaintiff does not allege that Lacy took any

additional forceful action. Furthermore, the fact that there is

no evidence to demonstrate that the plaintiff suffered a serious

injury as a result of the arrest supports the conclusion that

Lacy did not apply excessive force when making his arrest of the

plaintiff. See, e.g., Murphy, 624 F.App’x at 917. Therefore,

because Lacy's conduct did not violated a clearly established

constitutional right, the right against unreasonable seizures

(i.e., arrests), qualified immunity is applicable.

Accordingly, the court affirms the proposed finding of the

magistrate judge and grants summary judgement in favor of the

defendant for the claim of excessive force during arrest.

ii. Alleged Post-Arrest Excessive Force

Plaintiff’s final objection is that Richmond and Young

(“defendants”) applied excessive force while plaintiff was a

pretrial detainee. Magistrate Judge Eifert found that plaintiff

did not assert a genuine issue of material fact that the

defendants violated his Fourteenth Amendment rights and

recommended that the defendants be granted summary judgment.

See ECF NO. 57 at p.29. For the reasons discussed below, the

court agrees with the finding of Magistrate Judge Eifert and

grants summary judgment in favor of the defendants.

The defendants argue that they are entitled qualified immunity

from plaintiff’s claim for post-arrest excessive force. See EFC

No. 22 at p.2. For the purposes of determining whether the

defendants are protected by qualified immunity, the court must

determine initially whether there was in fact a violation of

plaintiff’s Due Process right against excessive force as a

pretrial detainee. See Pearson, 555 U.S. at 201.

Excessive force claims brought by pretrial detainees are

governed by the Due Process Clause of the Fourteenth Amendment.

See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). Recently

the Supreme Court in Kingsley v. Hendrickson, 135 S. Ct. 2466,

2473 (2015) held that,

[A] pretrial detainee must show only that the force

purposely or knowingly used against him was

objectively unreasonable. Nevertheless, a court

cannot apply this standard mechanically . . . A court

must make this determination from the perspective of a

reasonable officer on the scene, including what the

officer knew at the time, not with the 20/20 vision of

hindsight. . .

Moreover, while the Supreme Court indicated that the list was

not exhaustive:

Considerations such as the following may bear on the

reasonableness or unreasonableness of the force used:

the relationship between the need for the use of force

and the amount of force used; the extent of the

plaintiff's injury; any effort made by the officer to

temper or to limit the amount of force; the severity

of the security problem at issue; the threat

reasonably perceived by the officer; and whether the

plaintiff was actively resisting.

Id. Furthermore, although the extent of an injury received can

be a consideration, the objective reasonableness “inquiry in

both contexts focuses on the force itself rather than the

injury.” Coley v. Lucas Cty., Ohio, 799 F.3d 530, 539 (6th Cir.

2015).

The case at hand is analogous to Strickland v. Turner, No.

9:15-CV-275-PMD-BM, 2017 WL 5589575, at *2 (D.S.C. Nov. 21,

2017), wherein the plaintiff alleged that a corrections officer

“forcefully pinched him on one occasion as he was being removed

from a restraint chair.” Mindful of the fact that the plaintiff

did not allege that this pinch resulted in any physical injury,

the court held that plaintiff’s allegation of this “deliberate

and unprovoked” act was not objectively unreasonable in light of

the fact that “prison management ‘may require and justify the

occasional use of a degree of intentional force’ against

pretrial detainees.” Id. (citing Kingsley, 135 S. Ct. at 2475).

Here, plaintiff claims that Richmond snuck up behind him,

“jerking [him] up from defendant’s table, slinging [him] around

in the courtroom, pushing [him] out into the hallway causing at

least a disc to slip in my lower spine.” ECF No. 60 at p.1.

Next, plaintiff alleges that defendant Young on a number of

occasions “paw[ed] [him’ by [his] right shoulder and neck,

hooking his fingers in my shirt collar and jerking me down in

the County’s unequipped with feet rests wheelchair in an awkward

twisted position causing at least a pinched nerve in my lower

spine causing a constant agitating pinch on the right side of my

lower spine ever since that moment and cannot get in a

comfortable position.” ECF No. 60 at pp 1-2.

The defendants argue that “while Plaintiff uses colorful

language to describe the actions, it was nothing more than

removing Plaintiff from the courtroom following Plaintiff’s

preliminary hearing.” ECF NO. 54 at p.11. The defendants

explain that,

Boiled to its essence, Defendant Richman escorted

Plaintiff from the courtroom following the preliminary

hearing to take him to the holding cells. Similarly,

with respect to the incident involving the wheelchair,

Plaintiff again uses colorful language to describe

Defendant Young removing Plaintiff from a courtroom

following a hearing.

Id. at 12.

Similar to Strickland, while it is undisputed that the

officers applied force to the plaintiff when escorting him

around and from the courtroom, based upon the evidence, the

force applied does not appear to be objectively unreasonable.

See Strickland, No. 9:15-CV-275-PMD-BM, 2017 WL 5589575, at *2;

but see, Sawyer v. Ashbury, 537 Fed.Appx. 283, 296 (4th Cir.

2013) (holding that “a videotape of detention center incident

clearly showing that deputy sheriff struck pretrial detainee in

the face at least once while two deputies began to hold him, in

response to detainee's insults and refusal to stand up,

irrefutably established that deputy used excessive force in

violation of detainee's Fourteenth Amendment due process

rights.”).

Although plaintiff complains that he is in excruciating

pain from the officer’s action, he has failed to demonstrate

that the force used against him by Richmond was “objectively

unreasonable.” See Kingsley, 135 S. Ct. at 2473 (holding that

“a pretrial detainee must show only that the force purposely or

knowingly used against him was objectively unreasonable.”). The

plaintiff’s alleged injuries, although taken into consideration,

cannot be given substantial weight because plaintiff has offered

no evidence to prove that he is in fact injured, let alone that

he was injured as a result of Richmond and defendant Young’s

actions.

Upon review of both party’s arguments and objections, the

court does not find that a genuine issue of material fact exists

as to whether the force applied by Richmond to the plaintiff was

objectively unreasonable. Additionally, because it has not been

established that the plaintiff’s Fourteenth Amendment due

process rights have been violated, the defendants are protected

by qualified immunity. See Pearson, 555 U.S. at 201.

Accordingly, the court grants summary judgment in favor of the

defendants as to the plaintiff’s claim of post-arrest excessive

force.

Iv. Conclusion

Accordingly, the court OVERRULES plaintiff's objections and

sustains defendants’ objections to Magistrate Judge Eifert’s

PF&R. The court ADOPTS the factual and legal analysis contained

within the PF&R except as it relates to plaintiff’s claim that

he was unlawfully arrested. The court GRANTS defendants’ motion

for summary judgment in favor of defendants as it relates to

plaintiff’s claim that he was unlawfully arrested, that the

defendants use excessive force against plaintiff during the

arrest, and that the defendants used excessive force against the

plaintiff while a pretrial detainee. Neither party made

objections to Magistrate Judge Eifert’s PF&R as it relates to

plaintiff’s unlawful search claim. Therefore, plaintiff’s

unlawful search claim remains viable and the motion for summary

judgment is DENIED as to that claim.

The Clerk is directed to forward a copy of this Memorandum

Opinion and Order to counsel of record and to petitioner, pro

se.

IT IS SO ORDERED on this 28th day of September, 2018.

ENTER:

Rautd A Dols

David A. Faber

Senior United States District Judge

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