Wake Forest Law Review

By Blake Stafford

On March 31, 2016, the Fourth Circuit issued its published opinion in Yates v. Terry, a civil case concerning a police officer’s qualified immunity defense against a claim of excessive force.  After being tased three times during a nonviolent traffic stop, Brian Yates (“Yates”) filed an action against the arresting officer, Christopher Terry (“Terry”), asserting, inter alia, excessive force in violation of 42 U.S.C. § 1983.  Terry filed a motion for summary judgment on the basis of qualified immunity, which was denied by the district court.  The Fourth Circuit affirmed the denial of summary judgment.

Facts & Procedural History

Yates, a first sergeant and Iraq War veteran, was driving on a highway in North Charleston, South Carolina with his mother and brother following in a separate vehicle behind him.  Yates drove past two police cruisers, and one of the cruisers, driven by Terry, pulled out and began to follow him, activating his lights to indicate that Yates should pull over.  When Yates realized that Terry was behind him, he pulled over at a gas station.  At the gas station, Terry requested to see Yates’s driver’s license.  Yates responded that he did not have his driver’s license but that he did have military identification.  Terry then opened Yates’s car door, forced him out of the car, and ordered him to place his hands on the car.  Yates complied.  Terry informed Yates that he was under arrest; however, when Yates questioned him about the basis for the arrest, Terry failed to provide any explanation.  By this time, Yates’s mother and brother had arrived at the gas station.

With Yates’s hands on top of the car and Terry behind him, Yates turned his head to the left, at which point Terry deployed his taser in “probe mode,” whereby two probes are fired from the taser, attached by thin electrical wires, into the skin of the subject, delivering a five-second cycle of electricity as a means to override the subject’s central nervous system.  Yates fell to the ground.  While he was still on the ground and having made no attempt to get up, Terry tased him a second time.  Following the second application of the taser, Yates told his brother to call his commanding officer.  When Yates reached for his cell phone, which was clipped to his waist, Terry tased Yates a third time.  Following these events, other officers arrived on the scene, and Yates was arrested and charged with an excessive noise violation, no license in possession, and disorderly conduct.  All of these charges were nol prossed.

Yates filed, inter alia, a § 1983 excessive force claim against Terry in his individual capacity.  Terry filed a motion for summary judgment on the basis of qualified immunity.  The district court determined that Terry was not entitled to qualified immunity with respect to the first two taser applications as a matter of law, but found that the third taser application was “problematic” in that it would depend on more factual development, including the timing of events surrounding it.  However, the district court held that, as to all three uses of the taser, qualified immunity did not apply, and that defendant Terry was therefore not entitled to summary judgment.  Terry appealed the denial of summary judgment.

Interlocutory Appellate Jurisdiction

Before reaching the merits, the Fourth Circuit first had to determine whether it had jurisdiction over Terry’s interlocutory appeal.  Generally, a district court’s order denying summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine.  However, when a district court denies a claim of qualified immunity based on the insufficiency of the facts, then that determination is not immediately appealable—the reviewing court’s jurisdiction only extends to issues of law.  In this case, the district court provided conflicting language in explaining its reasoning for holding that qualified immunity did not apply, first noting that there was a constitutional violation as to the first two taser deployments, then noting that factual development was required for the third.

In this case, the district court provided conflicting language in explaining its reasoning for holding that qualified immunity did not apply, first noting that there was a constitutional violation as to the first two taser deployments, then noting that factual development was required for the third.  However, in evaluating excessive force claims, the Fourth Circuit has a general rule cautioning courts against using a segmented view of the sequence of events where each distinct act of force becomes reasonable given what the officer knew at each point in the progression.  Instead, determining reasonableness of force should be done in full context, with an eye toward the proportionality of the force in light of the totality of the circumstances.  Thus, the Fourth Circuit determined that it had jurisdiction to review the district court’s denial of Terry’s motion for summary judgment.

Qualified Immunity

Turning to the merits, the Fourth Circuit affirmed the district court’s denial of Terry’s motion for summary judgment on the basis of qualified immunity.  Generally, qualified immunity shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person.  To determine whether an officer is entitled to qualified immunity, the court must determine (1) whether the facts, taken in the light most favorable to the non-movant, establish that the officer violated a constitutional right; and (2) whether that right was clearly established.

Constitutional Violation: Excessive Force.  The Fourth Circuit first evaluated whether an established constitutional right was violated—in this case, the Fourth Amendment’s bar against the use of excessive force by police officers to effectuate a seizure.  To determine whether the force used was excessive, as opposed to objectively reasonable, courts evaluate the totality of the circumstances in light of three factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.

Here, the Fourth Circuit found that all three factors weighed heavily in Yates’s favor.  First, the Court found that the severity of the crime at issue strongly favored Yates.  It was undisputed that the alleged violations were nonviolent, minor traffic infractions; none amounted to more than a misdemeanor.  Second, the Court found that the evidence did not support any inference that Yates posed an immediate threat to the safety of Terry or others at any time during their encounter.  Yates, who was unarmed, complied with Terry’s initial order to place his hands on the car; however, he was subsequently tased by Terry once for turning his head and a second time for no apparent reason.  The Court noted that Yates was never a danger to Terry at any time during their encounter.  Third, the Court found that, based on the evidence, Yates never attempted to flee or resist Terry’s efforts to detain him—he never attempted to get up after he fell to the ground following the first taser application.  Thus, in light of the totality of the circumstances, the Court held that the level of force used by Terry against Yates was not objectively reasonable and constituted excessive force in violation of Yates’s Fourth Amendment rights.

Clearly Established Right.  Next, the Fourth Circuit determined that Yates’s violated constitutional rights were clearly established at the time of Terry’s conduct, such that a reasonable official would have understood that what he was doing violates that right.  The Court held that it was clearly established—and Terry was thus on fair notice—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.”

Disposition

The Fourth Circuit concluded that, based on the totality of the circumstances, Terry was not entitled to qualified immunity as a matter of law.  The Court affirmed the district court’s denial of Terry’s motion for summary judgment based on qualified immunity.

By Blake Stafford

On March 17, 2016, the Fourth Circuit issued its published opinion in Raynor v. Pugh, a civil case regarding prisoner civil rights.  James Herman Raynor, an inmate at a Virginia correctional facility, brought an action under 42 U.S.C. § 1983 alleging that G. Pugh, the Prison Housing Manager at the facility, violated the Eighth Amendment by failing to protect Raynor from an attack by another inmate.  The district court granted summary judgment in favor of Pugh after denying Raynor’s requests for discovery and subsequently finding no “genuine” disputes of material fact.  The Fourth Circuit vacated and remanded, finding (1) that genuine disputes of material facts permeated Raynor’s claim, precluding summary judgment; and (2) that it was error for the district court to deny Raynor the opportunity to conduct discovery.

Facts & Procedural History

Raynor is an inmate at Sussex II State Prison who suffers from various medical ailments, including seizures, blackouts, blood issues, heart issues, and breathing issues.  Raynor, who was then-cellmates with inmate K. Mullins, requested that Pugh move him to a different cell so he could be housed with a “caretaker” inmate who had volunteered to assist him with his health conditions.  However, Pugh determined that Mullins, rather than Raynor, would have to relocate. After Pugh delivered this news to both Mullins and Raynor, Mullins allegedly threatened to assault Raynor.  Pugh was allegedly still present when Mullins made this threat and responded that he did not care what Mullins did.  Soon thereafter, Mullins did physically assault Raynor, and Pugh allegedly watched the entire assault while failing to take any action until after the assault had ended.  Because of the attack, Raynor allegedly suffered significant spinal damage that caused constant and severe pain as well as a complete loss of leg control, forcing Raynor to be confined to a wheelchair for the rest of his life.

After exhausting administrative remedies, Raynor filed this § 1983 action, alleging that Pugh’s deliberate indifference to Raynor’s safety, and the resulting injuries, constituted cruel and unusual punishment in violation of the Eighth Amendment.  Raynor submitted the following evidence to support the alleged facts: a verified complaint describing the incident; a corroborating affidavit from another inmate who had witnessed the assault; copies of several request for medical attention for severe spinal pain; and six doctor’s reports describing spinal x-rays taken before and after the assault.  Raynor also moved for discovery of the security video of the incident, any related prison policies or procedures, and all prison reports and documents related to the investigation of the assault.  Pugh disputed essentially every fact alleged by Raynor, contending that no threatening comments were made in Pugh’s presence before the assault; that he was in a different part of the prison during the assault; that prison policy would have prevented him from intervening even if he had been present; and that Raynor’s injuries were minor—any spinal problems were attributable to a prior accident.  Pugh moved for summary judgment and for a protective order to stay discovery based on a qualified immunity defense.

The district court denied Raynor’s discovery requests, granted Pugh’s discovery protective order (without reaching the merits of the qualified immunity defense), and granted summary judgment in favor of Pugh.  The district court found that the disputes of fact were not “genuine” due to a lack of evidentiary support for Raynor’s claims.

Prison Official Liability for Eighth Amendment Violations

The Eighth Amendment, which prohibits “cruel and unusual punishment,” imposes a duty on corrections officers to protect prisoners from violence at the hands of other prisoners.  To translate this duty into constitutional liability for prison officials under 42 U.S.C. § 1983, a plaintiff must establish that the incident satisfies a two-part test that consists of both an objective and a subjective inquiry.  First, the inmate must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury.  Second, an inmate must show that the prison official had a sufficiently culpable state of mind, which, in this context, consists of deliberate indifference to inmate health or safety.  This second prong requires the prison official to have actual knowledge of the excessive risk of danger, which can be proven through both direct and circumstantial evidence.  Additionally, a prison guard who does not intervene in the assault can avoid liability if such intervention would have placed the guard in danger of physical harm.  This does not, however, shield a prison guard from liability for completely failing to take any action to stop an ongoing assault.

Analysis

The Fourth Circuit found that genuine disputes of material fact were present for both the objective-injury prong as well as the subjective-knowledge prong, precluding summary judgment.

(1) Objective-Injury.  Raynor alleged specific facts describing facial trauma and spinal injury caused by the attack.  These facts were supported by his verified complaint, several written requests for medical attention, and six medical reports interpreting x-rays of his spine before and after the incident.  Additionally, he offered a witnessing inmate’s affidavit, which describes Mullins’ final blow that allegedly caused the spinal injury.  Pugh disputed the truth of all of the facts alleged by Raynor; however, because Raynor offered evidence as to material facts concerning the seriousness of the injury, the Fourth Circuit found that summary judgment was precluded.

(2) Subjective-Knowledge.  Raynor alleged specific facts in his verified complaint (which are corroborated by the witnessing inmate’s affidavit) to support his allegation that—in two independent ways—Pugh acted with deliberate indifference.  First, Raynor alleged that Mullins told Pugh that he was going to attack Raynor and that Pugh responded that he did not care what Mullins did.  Second, he alleged that Pugh had knowledge of the attack as it was happening because Pugh watched the entire incident.  By failing to radio for help, Pugh’s response was allegedly not reasonable to shield him from liability for failing to protect Raynor from the attack and resulting injuries.  The Fourth Circuit found that each of these independent grounds supported Raynor’s contention that Pugh had actual knowledge of an excessive risk to Raynor’s safety.  Thus, summary judgment was precluded on this prong as well.

Disposition

In sum, the Fourth Circuit found that genuine disputes of material fact permeated both prongs of Raynor’s § 1983 claim; thus, the district court erred in granting summary judgment.  The Court vacated the district court’s judgment and remanded the case.  Additionally, the Court found that, by failing to rule on the qualified immunity defense asserted by Pugh, the district court erred in granting Pugh’s protective order against discovery.  Thus, the Fourth Circuit instructed the district court to allow appropriate discovery on remand.

Concurrence

The concurring opinion agreed with the majority’s conclusions regarding discovery and the subjective-knowledge prong.  However, the concurrence found that, given Raynor’s complex medical history, the evidence Raynor proffered for the objective-injury prong was insufficient to allow a lay juror to determine whether Raynor’s spinal injuries were attributable to Mullins’ attack.

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By Eric Benedict

On October 27th, 2015, the Fourth Circuit issued its published opinion in the civil case, Griffin v. Baltimore Police Dept. In Griffin, the Fourth Circuit affirmed the District Court’s determination that Griffin’s § 1983 claim (42 U.S. Code § 1983) was barred by the standards set forth in Heck v. Humphrey. The Heck rule prohibits § 1983 claims that would “necessarily imply[y] the invalidity of a prior conviction.” The Court explained that because, if successful, Griffin’s “Brady Claim” would imply that his conviction was invalid, and was therefore barred by Heck.

Griffin’s Conviction and Pursuit of Post-Conviction Relief

In 1982, a Baltimore jury convicted Wendell Griffin of murder and a related weapons charge. Griffin was then sentenced to life in prison. The state appellate court affirmed the conviction and Maryland’s highest state court declined to hear his appeal. Fifteen years after his conviction, Griffin fined a petition for habeas corpus in the United States District Court for the District of Maryland. That petition was ultimately denied and the Fourth Circuit declined to issue a certificate of appealability. Finally, Griffin filed a petition seeking DNA testing on pieces of evidence from the police case file. As part of the proceedings that followed, Griffin apparently discovered information that suggested the police failed to hand over exculpatory evidence to the defense during trial. Griffin was ultimately successful in reducing his sentence from a life sentence to time served.

Griffin Files Suit Against the Baltimore City Police Department

After his release, Griffin filed a § 1983 claim against the Police Department. A § 1983 claim allows a plaintiff to seek damages against an actor who violates the plaintiff’s federal rights while acting under color of state law. Griffin claimed that the Baltimore Police Department withheld evidence that would have exculpated him at trial (a “Brady Claim”).

Heck’s Judgment Consistency Precludes Griffin’s Claim

The Fourth Circuit relied heavily on precedent to prevent Griffin’s claim from moving forward. Specifically, the Court cited the consistency standards set for in Heck v. Humphrey. In Heck, a 1994 United States Supreme Court case, the Supreme Court explained that allowing a plaintiff to proceed on a § 1983 claim that would imply the wrongfulness of a still-valid conviction would lead to inconsistent results. On one hand, there would be a standing conviction, not overturned at the state or federal level, while on the other there would be a civil judgment calling that conviction into question. The Fourth Circuit reasoned that any successful “Brady Claim” would undermine Griffin’s prior conviction because it would call into question the validity of the verdict.

The Heck Court expressly allowed claims like Griffin’s to move forward only when the conviction had already been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal…or called into question by a federal court’s issuance of a writ of habeas corpus.” Griffin argued that because he was no longer incarcerated, the habeas corpus path was no longer accessible to him, and therefore, he should be allowed to proceed. The Fourth Circuit explained that such an exception should only be available where a plaintiff cannot seek habeas relief as a practical matter (i.e. a short sentence). The Court noted that Griffin had ample time to seek habeas relief, and indeed did at one point, although his petition was denied. Additionally, Griffin had at least sixteen months after learning about the alleged Brady claim to seek habeas relief, but did not. In sum, the Court concluded that the suit was barred by the limits of Heck, and that Griffin did not fall into any exception to the rule.

The Court Recognizes Federalism Concerns in Post-Conviction Relief

Citing the unique relationship between state and federal courts, the Fourth Circuit acknowledged the delicate balance between a state court’s interest in a given conviction and a federal court’s use of habeas corpus. The Fourth Circuit reasoned that limitations on habeas relief are especially warranted when a state provides pathways for post-conviction relief. In Maryland, the Fourth Circuit identified four: a petition for error coram nobis, a petition for writ of actual innocence on the basis of newly discovered evidence, a pardon from the Governor, and Maryland’s standard direct and collateral review procedures. The Court explained that should Griffin’s petition be invalidated through a method still available to him, the Heck rule would no longer apply, and Griffin could pursue a § 1983 claim.

The Fourth Circuit Affirms

The Fourth Circuit affirmed the District Court’s dismissal of Griffin’s claim. Both the majority opinion and the lone concurrence were careful to articulate that their ruling only discusses the procedural aspects of the claim and not the merits. Should Griffin’s conviction become invalidated, he may be able to pursue his claim.

 

By Rolf Garcia-Gallont

In Cassell v. Dawkins, an unpublished civil opinion released on February 5, 2015, the Fourth Circuit vacated a district court judgment that had dismissed a prisoner’s action brought in forma pauperis, pursuant to the Prison Litigation Reform Act (“PLRA”).

District Court Denies IFP Status and Dismisses Complaint

Charles Cassell, a North Carolina  inmate, filed a § 1983 civil action against corrections officers who he claimed had deprived him of his constitutional rights while he was incarcerated. He filed his claim in forma pauperis (“IFP”), which would have allowed him to pay the court filing fee over time, instead of requiring the full amount at the time of filing.

The district court denied Cassell IFP status because he had brought three prior lawsuits that were dismissed as frivolous or for failing to state a claim, which barred him from bringing new IFP cases under the “three strikes” rule. The district court dismissed Cassell’s complaint without prejudice, allowing him to refile when he could pay the full $400 filing fee.

The “Three Strikes” Rule

The “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. 1915(g), generally prohibits a prisoner from proceeding in forma pauperis in federal court if “the prisoner has, on 3 or more prior occasions, while incarcerated . . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.”

In 2011, the Fourth Circuit held in Tolbert v. Stevenson that for a dismissal to qualify as a “strike” under § 1915(g), the entire action must be dismissed as frivolous or malicious or for failure to state a claim.

An Action That Was Dismissed Partly on Statute of Limitations Grounds and Partly for Failure to State a Claim Does Not Qualify as a “Strike”

One of the cases identified by the district court as qualifying as a “strike” under § 1915(g) was a case that had been dismissed only partly for failure to state a claim, and partly on statute of limitations grounds. The Fourth Circuit held that under Tolbert, this case did not qualify as a strike.

Judgment Vacated and Case Remanded

By Andrew Kilpinen

In a split decision featuring three separate opinions, the 4th Circuit affirmed in part and vacated in part the district courts dismissal in Owens v. Baltimore City State’s Attorneys.

 Owens Challenges Statute of Limitations, Sovereign Immunity, Qualified Immunity, and Failure to State a Claim

The Court reviewed four issues de novo: (1) Is Owens’s claim time barred, (2) is the Baltimore City State’s Attorney’s office an entity capable of suit, (3) are Officers Pelligrini, Dunnigan, and Landsman protected by qualified immunity, and (4) does Owens’s complaint contain sufficient factual content to survive a motion to dismiss on the claim that the BCPD followed a custom, policy, or practice by which local officials violated Owens’s constitutional rights?

 Owens Was Convicted of Rape and Murder

The present controversy grew out of the investigation, trial, and conviction of James Owens for the rape and murder of Colleen Williar on August 2, 1987. The State’s key witness, James Thompson, changed his testimony five times during the investigation and trial. Central to Owens’s appeal was withholding of the multiple variations of Thompson’s testimony from defense counsel.

The jury convicted Owens of burglary and felony murder. In 2006, DNA evidence showed that Owens’s DNA did not match the blood and semen evidence at the crime scene. On June 4, 2007, Owens was granted a new trial. On October 15, 2008 the State’s Attorney entered a nolle prosequi, dropping the charges against him. Owens was subsequently from prison released after twenty years of incarceration.

 Statute of Limitations Began to Run After the Nolle Prosequi and Owens’s Claim is Therefore Not Time Barred

First, the Court held that Owens’s claim is not time barred because the statute of limitations began to run when the State issued the nolle prosequi, not when the State granted Owens’s a new trial. Since § 1983 does not provide a statute of limitations, the Court must look to the common-law tort most analogous to Owens’s claim. Here, the Court identified malicious prosecution as the common-law tort most analogous to Owens’s §1983 claims. Generally, the statute of limitation clock begins to run as soon as the plaintiff knows or has reason to know of his injury. However, sometimes, as is the case in malicious prosecutions, the common law provides a “distinctive rule” for determining the start date of the limitations period. Thus, the Court held that the statute of limitations began to run on Owens’s claim after the nolle prosequi, not at the start of the new trial.

 Baltimore City State’s Attorney’s Office Is Not an Entity Capable of Being Sued

Second, the Court held that the Baltimore City State’s Attorney’s Office is not an entity capable of being sued because the office does not have a legal identity. To be suable, an office or agency must be granted a legal identity through statutory or constitutional authority. Owens argued that the Maryland General Assembly granted such legal identity when it named Title 15 of the Maryland Code of Criminal Procedure “Office of the State’s Attorney.” The Court rejected this argument stating that the title refers to a position held by an individual and not a suable office.

 Officers Are Not Protected by Qualified Immunity

The Court rejected the officer’s defense of qualified immunity. The Court had little difficulty concluding that Owens’s allegations state a plausible § 1983 claim because the information withheld by the officers would have supported his theory that Thompson committed the rape and murder; commenting that at the very least it would have discredited Thompson’s testimony. The Court cites the fact that the officers were seasoned veterans who called the ASA moments after receiving Thompson’s final story to support the conclusion that they withheld the four previous versions intentionally and maliciously. The Court points to precedent in Barbee, Sutton, and Boone in holding that the officers should have known that not disclosing material exculpatory evidence was a violation of Owens’s constitutional rights in 1988.

 Owens’s Complaint Survived Motion to Dismiss

Finally, the Court held that the factual allegations in Owens’s complaint, including reported and unreported cases of officers withholding information from the period of time before and during his trial, contained sufficient factual content to allege that the BCPD maintained a custom, policy, or practice allowing the withholding of material exculpatory evidence. The Court found the allegations that BCPD officers withheld information on multiple occasions could establish a “persistent and widespread” pattern of practice. The Court held that Owens’s complaint survived the BCPD’s 12(b)(6) motion to dismiss.

 4th Circuit Affirmed in Part and Vacated in Part

Owens will have yet another day in court to prove his § 1983 claims against the BCPD, and the individual officers, but not the State Attorney’s Office. The case was remanded to the district court for further proceedings.