Barbara Goodman v. Dewayne Barber , 539 F. App'x 87 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2333
BARBARA GOODMAN,
Plaintiff – Appellee,
v.
DEWAYNE BARBER, individually and in his official capacity
as a deputy with the Sampson County Sheriff’s Department;
OHIO CASUALTY INSURANCE,
Defendants – Appellants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cv-00153-F)
Argued: May 15, 2013 Decided: August 28, 2013
Before KING and AGEE, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Torin L. Fury, FRAZIER HILL & FURY, RLLP, Greensboro,
North Carolina, for Appellants. Mark Anthony Key, Lillington,
North Carolina, for Appellee. ON BRIEF: William L. Hill,
FRAZIER HILL & FURY, RLLP, Greensboro, North Carolina, for
Appellants.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We are asked in this interlocutory appeal to review the
district court’s denial of qualified immunity at the summary
judgment stage of this 42 U.S.C. § 1983 action, in which
defendant DeWayne Barber, a deputy with the Sampson County
(North Carolina) Sheriff’s Department, is accused of using
excessive force against plaintiff Barbara Goodman. See Goodman
v. Barber, No. 7:11-cv-00153 (E.D.N.C. Oct. 16, 2012) (the
“Order”), ECF No. 51. 1 As explained below, we affirm the ruling
of the district court.
I.
A.
Because Deputy Barber’s request for qualified immunity was
made in a motion for summary judgment, the district court
properly “relate[d] the facts in the light most favorable to
Goodman,” while also “not[ing] that Deputy Barber vigorously
disputes Goodman’s version of the facts.” See Order 2. In
brief, the Order recounted that the alleged use of excessive
force occurred on June 19, 2008, following Barber’s arrest of
Goodman’s brother in the presence of Goodman and approximately
1
The district court’s unpublished Order is found at J.A.
257-74. (Citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.)
2
eight other family members on the family’s multi-residence
property in Salemburg, North Carolina. After Barber placed
Goodman’s brother in a patrol car, Goodman began walking toward
one of the family homes to retrieve her purse, with the
intention of following her brother to the local detention center
and posting his bond. According to Goodman, Barber informed
her, “‘You’re not going anywhere. I’m going to arrest you,
too.’” J.A. 163. Barber then placed a single handcuff on
Goodman’s left wrist. At that point, Goodman’s stepfather
grabbed Goodman’s right arm and began twirling Goodman in an
effort to prevent her arrest. Having been informed by Barber
that he, too, was under arrest, Goodman’s stepfather ran from
Barber, but Barber eventually caught up to the stepfather and
deployed a taser to subdue him. Concerned about her
stepfather’s heart condition, Goodman ran over to assist him,
placing her arms around him to ease his fall.
While Goodman was assisting her stepfather, Deputy Barber
allegedly came up behind Goodman, grabbed her by the handcuffed
arm, pulled her away from her stepfather, and threw her to the
ground, fracturing her finger. Goodman was then, in her words,
“in so much pain” and “screaming that [her] finger was broken.”
J.A. 135. Nonetheless, Goodman was not physically aggressive,
i.e., she “was not thrashing [her] arms, or moving them in any
erratic way.” Id. With Goodman still on the ground, Barber
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placed Goodman’s right arm behind her back and cuffed her hands
together. Although Goodman was completely subdued by that time,
Barber “continued to maul [Goodman’s] face into the ground, hit
[her,] and started kneeing [her] in the back.” Id.; see also
id. at 172 (Goodman’s testimony that Barber “just mauled my head
in the dirt. I mean, he had his feets [sic] in my back. He was
just mauling it”).
Along with her finger fracture, which required surgery and
physical therapy, Goodman sustained a right knee abrasion and
bruising to her face, arms, and back. She was admitted to a
local hospital for a single night and then discharged into the
custody of the Sampson County Sheriff’s Department. Goodman was
later convicted in a North Carolina state court of resisting,
delaying, or obstructing an officer, but the prosecutor
dismissed the charge during the pendency of Goodman’s appeal.
On the dismissal form, the prosecutor wrote that Goodman “has no
prior record and has performed sufficient community service in
the way of volunteer work with the church.” J.A. 115.
B.
In her 42 U.S.C. § 1983 civil action, Goodman has invoked
the Fourth and Fourteenth Amendments in asserting that Deputy
Barber used excessive force against her. See Orem v. Rephann,
523 F.3d 442, 446 (4th Cir. 2008) (explaining “that the Fourth
Amendment only governs claims of excessive force during the
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course of an arrest, investigatory stop, or other seizure of a
person,” while “excessive force claims of a pretrial detainee or
arrestee are governed by the Due Process Clause of the
Fourteenth Amendment” (alterations and internal quotation marks
omitted)). 2 Addressing Barber’s summary judgment motion, the
district court observed that the qualified immunity analysis
encompasses two questions: (1) whether Barber’s actions
violated a constitutional right; and (2) whether the right at
issue was clearly established at the time of his conduct. See
Order 6-7 (citing, e.g., Pearson v. Callahan, 555 U.S. 223, 232
(2009)).
As to the first question, the district court recognized
that “[t]he Fourth Amendment proscribes the use of excessive
force by officers while effectuating an arrest.” Order 7
2
Goodman initiated this action in a North Carolina state
court on June 20, 2011, asserting a single § 1983 claim premised
on multiple theories, plus various state law claims. Deputy
Barber removed the action to the Eastern District of North
Carolina on July 27, 2011. An additional defendant, Ohio
Casualty Insurance, was added on February 20, 2012, as a
necessary party. Along with the excessive force theory of her
§ 1983 claim, Goodman has asserted, inter alia, that her arrest
was violative of the Fourth Amendment because it was made
without probable cause. By its Order of October 16, 2012, the
district court granted summary judgment to Barber on the illegal
arrest component of Goodman’s § 1983 claim. See Order 13-14.
Meanwhile, Goodman has conceded the infirmity of her other
§ 1983 theories, as well as that of several state law claims.
Id. at 1, 14. She continues, however, to pursue a state law
claim for assault and battery. Id. at 14-17.
5
(citing Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en
banc)). The court expounded “that a Fourth Amendment excessive
force claim must be analyzed under the standard of ‘whether the
officers’ actions [were] “objectively reasonable” in light of
the facts and circumstances confronting them, without regard to
their underlying intent or motivation.’” Id. (alteration in
original) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
The court concluded that, “[v]iewing the facts in the light most
favorable to Goodman, [it could not] say that Deputy[] Barber’s
use of force was objectively reasonable as a matter of law.”
Id. at 8.
According to the district court, “[t]he first factor of the
Graham analysis — the severity of the crime at issue — actually
weighs against Goodman.” Order 8 (explaining that, “[b]y
allowing a family member to spin her around in circles [to evade
arrest] while Deputy Barber was outnumbered and surrounded,
Goodman committed a serious crime”). The court further
determined, however, that the second and third Graham factors —
whether the suspect posed an immediate threat to the safety of
the officers or others, and whether she actively resisted arrest
or attempted to evade arrest by flight — “weigh in favor of a
finding that Deputy Barber’s use of force was excessive.” Id.
at 8-9. In so ruling, the court relied on Barber’s “fail[ure]
to show how Goodman constituted a threat to the safety of
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[Barber] or others after she was fully restrained.” Id. at 9.
The court also invoked Goodman’s “alleg[ation] that Deputy
Barber continued to use force during the arrest after she was
completely restrained and was not resisting in any manner.” Id.
The court summarized that, “relying on Goodman’s version of the
facts, Deputy Barber’s use of force was excessive and Goodman’s
constitutional right to be free from excessive force during an
arrest was violated.” Id. at 10.
Turning to the qualified immunity question of whether
Goodman’s right was clearly established at the time of Deputy
Barber’s conduct, the district court framed the issue before it
as follows: “[W]hether, on June 19, 2008, it was clear to a
reasonable officer that it was unlawful to continue beating a
suspect who was under arrest, who had both hands handcuffed
behind her, who was pinned on the ground with the officer on top
of her, and who was not actively resisting arrest.” Order 11.
Easily answering “yes,” the court noted that “Fourth Circuit
case law clearly establishes that officers employ excessive
force when they assault a suspect [who] has been physically
restrained.” Id. at 12 (citing, e.g., Bailey v. Kennedy, 349
F.3d 731 (4th Cir. 2003); Jones v. Buchanan, 325 F.3d 520 (4th
Cir. 2003); Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993)). The
court thus deemed “the test for denying qualified immunity” to
be satisfied, and denied Barber’s motion for summary judgment
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“insofar as it relies on qualified immunity to defeat Goodman’s
alleged excessive force claim[].” Id.II.
Deputy Barber timely noted this interlocutory appeal,
invoking our jurisdiction under 28 U.S.C. § 1291. Barber relies
on Mitchell v. Forsyth, wherein the Supreme Court held “that a
district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding
the absence of a final judgment.” 472 U.S. 511, 530 (1985).
Significantly, the Court has since clarified “that a defendant,
entitled to invoke a qualified immunity defense, may not appeal
a district court’s summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a
‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S.
304, 319-20 (1995).
Conceding, as he must, that the whole of the district
court’s qualified immunity decision is unassailable without
improperly “reweigh[ing] the record evidence to determine
whether material factual disputes preclude summary disposition,”
see Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 275 (4th
Cir. 2011) (internal quotation marks omitted), Deputy Barber
urged us at oral argument to fault the court for not entering a
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partial summary judgment award with respect to his qualified
immunity defense. According to Barber, the court should have
granted qualified immunity for all his actions prior to the
point in time when Goodman was fully handcuffed and subdued,
including the alleged conduct that resulted in Goodman’s finger
fracture. Because Barber did not present this partial summary
judgment theory below, however, it is not properly before us
today. See Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993) (“As this court has repeatedly held, issues raised for the
first time on appeal generally will not be considered.”). We
are therefore constrained to affirm the district court.
AFFIRMED
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