McMillian v. Wake County Sheriff's Department , 399 F. App'x 824 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1576
ERIC M. MCMILLIAN,
Plaintiff - Appellant,
v.
WAKE COUNTY SHERIFF’S DEPARTMENT; S. HARRIS; S. BALDWIN; E.
BARRERA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cv-00342-FL)
Submitted: September 17, 2010 Decided: October 28, 2010
Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded with
instructions by unpublished per curiam opinion.
Eric M. McMillian, Appellant Pro Se. John Albert Maxfield,
COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF WAKE, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal stems from the district court’s order
granting Wake County Correctional Officers Harris, Baldwin, and
Barrera (collectively, “Defendants”) summary judgment on the
basis of qualified immunity, and dismissing Plaintiff Eric
McMillian’s civil rights action, filed pursuant to 42 U.S.C.
§ 1983 (2006). 1 Taken in the light most favorable to the injured
party, see Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled
on other grounds by Pearson v. Callahan, __ U.S. __, 129 S. Ct.
808 (2009), the record establishes the following facts.
In July 2008, McMillian was arrested and transported
to the Wake County Jail. After being processed without
incident, McMillian was placed in a single-person cell. After
he was unsuccessful in his attempts to utilize the pay phone,
McMillian became agitated. However, he eventually calmed down
and rested in his cell.
1
Although McMillian also named the Wake County Sheriff’s
Department as a defendant, the district court dismissed the
complaint as to this defendant and further denied McMillian’s
request to amend his complaint to add the proper legal entity.
McMillian does not contest either of these rulings on appeal.
Nor does McMillian challenge the district court’s disposition of
his Eighth Amendment deliberate indifference claim.
Accordingly, we conclude McMillian has forfeited appellate
review of those aspects of the district court’s order. See 4th
Cir. R. 34(b) (limiting review to issues raised in the informal
brief on appeal).
2
Defendant Harris later informed McMillian that he
would be transferred to a different cell. To effectuate this
transfer, Harris handcuffed McMillian and began to remove him
from the cell. At this point, according to McMillian,
Defendants placed him in a choke hold, forced him to the ground,
and repeatedly struck him in the head. McMillian specifically
alleged that, while he was handcuffed, Baldwin kneed him in the
right eye, causing his eye to bleed. Although the record
reveals some inconsistencies with regard to the particulars of
the assault, McMillian has consistently maintained that the
assaultive contact occurred after he was handcuffed.
McMillian filed the instant civil action several days
later, alleging Defendants employed excessive force during the
cell transfer. Defendants denied the allegations and claimed
they were entitled to qualified immunity. Shortly thereafter,
McMillian filed the first of several discovery requests, asking
the district court to order Defendants to produce any video
recordings and photographs from the night in question.
Defendants did not deny the existence of such evidence, but
instead asked the court to defer all discovery pending
resolution of the qualified immunity issue.
The magistrate judge directed that discovery would be
limited, initially, to that evidence relevant to Defendants’
assertion of qualified immunity, and found that the materials
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McMillian sought were not relevant to that issue. The district
court upheld this ruling.
Defendants filed a motion for summary judgment, which
was supported by affidavits from jail officials. According to
these affidavits, McMillian was belligerent and disruptive from
the time he arrived at the jail. When removed from his cell,
McMillian began to rip folders from the walls, triggering
Harris’ decision to place him in handcuffs. Instead of
complying with their order to turn for cuffing, McMillian
attacked Harris, knocking him to the floor. Several other
officers pried McMillian off of Harris, handcuffed him, and
proceeded to move him to a new cell. The officers averred
McMillian was not kicked or punched. McMillian, in response,
denied these assertions, and reiterated that the video-recording
from the jail would corroborate his version of events.
McMillian submitted a sworn declaration in which he again
averred that the assault occurred after he was handcuffed.
The magistrate judge concluded Defendants were
entitled to qualified immunity because the officers’ use of
force was justified by the need to restore order. In reaching
this conclusion, however, the magistrate judge did not address
McMillian’s contention that the officers assaulted him after he
had been handcuffed. The magistrate judge further denied
McMillian’s request for the appointment of counsel.
4
In his objections to the magistrate judge’s report,
McMillian again emphasized that he had in fact complied with
Harris’ request that he turn around to be handcuffed; that he
placed his hands behind his back, as ordered; and that he was
assaulted by the officers after he was handcuffed. McMillian
argued the use of force, after he was immobilized and subdued,
was not employed in a good faith effort to restore order.
McMillian again reiterated his request for the production of the
video surveillance footage.
The district court adopted the magistrate judge’s
recommendation and found the officers were entitled to qualified
immunity. The district court found McMillian’s agitation and
aggression during his transfer to a new cell justified
handcuffing him, and that the level of force employed to
accomplish that objective was appropriate.
McMillian subsequently filed another motion to compel
discovery and a motion, pursuant to Fed. R. Civ. P. 59(e), to
alter or amend the court’s judgment. The district court denied
both motions.
On appeal, McMillian reiterates that Defendants’
actions constituted excessive force in light of the fact that he
was already handcuffed. McMillian further asserts error in the
district court’s refusal to authorize the requested discovery.
5
Finally, McMillian challenges the district court’s denial of his
motion for the appointment of counsel.
I.
This court reviews a district court’s order granting
summary judgment de novo, drawing all reasonable inferences in
the light most favorable to the nonmoving party. See Robinson
v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010). Summary judgment
may be granted only when “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c)(2). However,
“[c]onclusory or speculative allegations do not suffice, nor
does a mere scintilla of evidence in support of his case.”
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (internal quotation marks omitted). Summary judgment will
be granted unless a reasonable jury could return a verdict for
the nonmoving party on the evidence presented. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[Q]ualified 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.” Pearson
v. Callahan, ___ U.S. ___, ___, 129 S. Ct. 808, 815 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
6
Supreme Court has outlined a two-prong test for determining
whether an officer is entitled to qualified immunity. Id. at
815-16. First, a court should decide whether the facts alleged
by the plaintiff demonstrate a violation of a constitutional
right. Id. If so, the court must determine “whether the right
at issue was clearly established at the time of [the]
defendant’s alleged misconduct.” Id. at 816. Courts are no
longer required to rigidly adhere to this sequence, however, and
may exercise their discretion in determining which prong to
address first. See id. at 818-22.
Excessive force claims of arrestees and pretrial
detainees are governed by the Due Process Clause of the
Fourteenth Amendment. See Orem v. Rephann, 523 F.3d 442, 446
(4th Cir. 2008); Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir.
1997) (en banc), abrogated on other grounds by Wilkins v. Gaddy,
__ U.S. __, __, 130 S. Ct. 1175, 1178-79 (2010) (per curiam).
In analyzing such a claim, “[t]he proper inquiry is whether the
force applied was in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose
of causing harm.” Taylor v. McDuffie, 155 F.3d 479, 483 (4th
Cir. 1998) (internal quotation marks omitted), abrogated on
other grounds by Wilkins, 130 S. Ct. at 1178-79. This analysis
requires consideration of whether the given situation required
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the use of force and “the relationship between the need and the
amount of force used.” Orem, 523 F.3d at 446.
McMillian has consistently asserted that, after he was
handcuffed and subdued, Defendants knocked him to the ground,
repeatedly struck him, and kneed him in the head, causing his
eye to bleed and injury to his neck. In granting summary
judgment to Defendants, the district court accepted Defendants’
assertions that they handcuffed McMillian due to his disruptive
conduct, and that their use of force was limited to
accomplishing that objective. Neither the magistrate judge nor
the district court squarely addressed McMillian’s allegation
that the complained-of use of force occurred after he was
handcuffed.
Accepting McMillian’s allegations and evidence as
true, as we must at this procedural juncture, see Jones v.
Buchanan, 325 F.3d 520, 524 n.1 (4th Cir. 2003), we conclude the
district court erred in finding there was no issue of material
fact as to the need for the use of force and the extent of force
Defendants used. Crediting McMillian’s version of the events,
we cannot say, as a matter of law, that knocking down, punching,
and kicking an arrestee while he is in handcuffs are actions
taken in good faith to restore order. See Young v. Prince
George’s Cnty., Md., 355 F.3d 751, 756-58 (4th Cir. 2004)
(vacating order granting defendant police officer summary
8
judgment on plaintiff’s Fourth Amendment excessive force claim,
in which plaintiff alleged officer assaulted him after he was
placed in handcuffs); Jones, 325 F.3d at 529 (noting factual
dispute over whether plaintiff was handcuffed and that plaintiff
might be unable to prove that he was in fact handcuffed, but
suggesting that whether plaintiff was handcuffed was highly
relevant to assessment of the reasonableness of the officer’s
conduct); see also Orem, 523 F.3d at 446-47 (upholding denial of
qualified immunity defense asserted by police officer who used a
taser on a suspect after she was handcuffed and restrained).
Adjudication of this issue is complicated by the fact
that the district court denied McMillian’s repeated requests for
discovery of any videotapes and photographs from the night in
question. We review the denial of a request for discovery for
an abuse of discretion. Conner v. United States, 434 F.3d 676,
680 (4th Cir. 2006). “An abuse of discretion may be found where
denial of discovery has caused substantial prejudice.” Nicholas
v. Wyndham Int’l, Inc., 373 F.3d 537, 542 (4th Cir. 2004)
(internal quotation marks omitted).
McMillian has steadfastly maintained that the jail’s
surveillance cameras captured the events at issue. The court
denied McMillian’s request for discovery of any such evidence,
finding it was not relevant to Defendants’ assertion of
qualified immunity. We disagree. In evaluating whether a
9
police officer is entitled to qualified immunity, the district
court must assess whether there was a constitutional violation.
See Pearson, 129 S. Ct. at 815. Certainly, evidence that would
have confirmed (or dispelled) McMillian’s allegations pertaining
to the events that form the subject of this lawsuit is highly
probative of that issue. 2 See Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 196 (4th Cir. 2006) (“Because there was a
sufficient basis to believe such videos existed, and because
this evidence represented [plaintiff’s] principal opportunity to
contradict the assertion that the district court found
dispositive, the court should have allowed discovery as to the
videos.”). Because we conclude the denial of McMillian’s
discovery requests substantially prejudiced him, we hold the
district court abused its discretion in denying these requests.
For these reasons, we conclude the district court’s grant
of summary judgment on the basis of qualified immunity was
premature, particularly in light of the erroneous evidentiary
ruling. Accordingly, we vacate the district court’s order
granting Defendants summary judgment on the basis of qualified
immunity.
2
It bears repeating that Defendants did not deny the
existence of such evidence.
10
II.
McMillian also argues the magistrate judge erred in
denying his motion for appointment of counsel. While a § 1983
litigant has no right to appointed counsel, see Bowman v. White,
388 F.2d 756, 761 (4th Cir. 1968), a district court’s refusal to
appoint counsel may be an abuse of discretion when “a pro se
litigant has a colorable claim but lacks the capacity to present
it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984)
(holding that 28 U.S.C. § 1915 (2006) does not authorize
compulsory appointment of counsel), abrogated on other grounds
by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989). In a
civil case, orders denying appointment of counsel are reviewed
for an abuse of discretion. See Miller v. Simmons, 814 F.2d
962, 966 (4th Cir. 1987).
As discussed above, McMillian’s complaint arguably
raises a colorable claim; however, the record reflects that
McMillian ably pursued his claim in the district court.
Accordingly, we conclude the district court did not abuse its
discretion in denying McMillian’s request for the appointment of
counsel, and affirm that aspect of the district court’s order.
III.
For the foregoing reasons, we vacate the district
court’s order granting Defendants summary judgment and remand
11
this case to the district court for further proceedings. We
direct the district court to order Defendants to produce any and
all relevant videotape and photographic evidence from the night
in question. Further, although we affirm the district court’s
denial of McMillian’s motion for appointment of counsel, we
conclude it would be prudent for McMillian to be represented by
counsel for the remainder of this litigation. Accordingly, upon
remand, the district court should take the necessary steps to
appoint counsel for McMillian. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS
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