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Roberts v. Midfield Police Dep't

United States District Court, N.D. Alabama, Southern Division

November 10, 2014

CEDRIC ALONZO ROBERTS, Plaintiff,
v.
MIDFIELD POLICE DEPARTMENT and OFFICER T. YEARWOOD, Defendants

Cedric Alonzo Roberts, Plaintiff, Pro se, Clio, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.

The plaintiff, Cedric Alonzo Roberts, has filed a pro se complaint pursuant to 42 U.S.C. § 1983, alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States have been abridged. The plaintiff is currently incarcerated at Easterling Correctional Facility in Clio, Alabama. The plaintiff names as defendant Midfield Police Officer Timothy Yearwood.[1] The plaintiff seeks monetary relief.

In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).

I. Procedural History

On December 17, 2013, the court entered an Order for Special Report, directing that a copy of the complaint in this action be forwarded to the defendant and requesting that he file a Special Report addressing the factual allegations of the plaintiff's complaint. (Doc. 9). The court advised the defendant that the Special Report should be accompanied by sworn statements and, if appropriate, would be considered as a motion for summary judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Id.). By the same order, the court advised the plaintiff that after he received a copy of the Special Report submitted by the defendant, he should file counter-affidavits if he wished to rebut the matters presented by the defendant in the Special Report. (Id.).

On April 14, 2014, Defendant Yearwood filed a Special Report accompanied by affidavits and other documents. (Docs. 20 & 21). The court notified the plaintiff that Defendant Yearwood's Special Report would be construed as a motion for summary judgment and he would have twenty (20) days to respond by filing affidavits and other material if he chose. (Doc. 22). The court also advised the plaintiff of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff filed responses to the defendant's motion for summary judgment on May 27, 2014, and June 2, 2014. (Docs. 24 & 25).

II. Summary Judgment Standard

In considering a motion for summary judgment, the court must determine whether the moving party is entitled to judgment as a matter of law. Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. See Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530, 1532-33 (11th Cir. 1990).

As the Eleventh Circuit Court of Appeals has explained:

Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prime facie case. " In such a situation, there can be 'no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

Bennett v. Parker, 898 F.2d at 1532 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, any " specific facts" pled in a pro se plaintiff's sworn complaint must be considered in opposition to summary judgment. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986).

III. Summary Judgment Facts

Based on the foregoing summary judgment standard, the following facts are undisputed or, if disputed, taken in a light most favorable to the plaintiff.

On April 22, 2011, at approximately 12:00 a.m., Jesse Bell was working night duty as a patrol officer for the Midfield Police Department (" MPD"). (Doc. 20-1, Bell Aff. ¶ 3) MPD received a call regarding a person breaking into or tampering with a Bestway box truck located in a parking lot at 18-C Phillips Drive, Midfield, Alabama. (Doc. 20-1, Bell Aff. ¶ 3; Doc. 25, Roberts Aff. at 1) Officer Bell was dispatched to the location to investigate. (Doc. 20-1, Bell Aff. ¶ 3)

Officer Bell drove to the location in his patrol vehicle through a private drive that exits through the rear of the MPD's parking lot. (Id.) The plaintiff had drained fuel from the Bestway truck's gas tank into a handheld gas can. (Doc. 20-1, Bell Aff. ¶ 3; Doc. 25, Roberts Aff. ar 1). The plaintiff was sitting on the tailgate of his truck when Officer Bell activated the blue light bar on his patrol vehicle. (Doc. 25, Roberts Aff. at 1-2). The plaintiff began to run across the parking lot.[2] (Id.)

When MPD received a call regarding the plaintiff breaking into or tampering with a vehicle, Officer Timothy Yearwood, a patrol officer with MPD, also was dispatched to the scene. (Doc. 20-10, Yearwood Aff. ¶ 3). Defendant Yearwood drove to the location in his patrol vehicle via 9th Avenue South, which is commonly known as the Bessemer Superhighway. (Id. ¶ 4).

When Defendant Yearwood arrived at the turn for the Phillips Drive parking lot, he turned into the parking lot at the entrance near Hardee's and McDonald's restaurants. (Doc. 20-10, Yearwood Aff. ¶ 4). The plaintiff alleges Defendant Yearwood " came after [him] with his patrol car" and " deliberately ran [the plaintiff] down and hit him." (Doc. 1-1 at 3). The plaintiff further claims Yearwood " roll[ed]" the patrol car " from over" the plaintiff's legs.[3] (Id.). The plaintiff lay on the ground unconscious until he was " awaken[ed]" by Defendant Yearwood along with the Midfield Fire Department and paramedics.[4] Id.

After the plaintiff was in handcuffs, Defendant Yearwood recovered a .32 caliber Keltec pistol from the parking lot near the rear of Yearwood's patrol car. (Doc. 20-10, Yearwood Aff. ¶ 12). The plaintiff had been holding the pistol before he was hit by Yearwood's patrol car. (Id.). Defendant Yearwood later discovered the pistol was reported stolen. (Id.). On August 6, 2012, the plaintiff pleaded guilty to being a violent felon in possession of a pistol, in violation of Alabama Code § 13A-11-72(a) (1975). (Doc. 20, Exs. 5, 7).

The plaintiff claims he sustained a broken finger, " a busted eye lube, " and injuries to his legs, chest, and head as a result of the collision. (Doc. 1-1 at 3). Defendant Yearwood observed that one of the plaintiff's eyes was swollen and the plaintiff complained of head and chest pain. (Doc. 20-10, Yearwood Aff. ¶ 13). Either Defendant Yearwood or Officer Bell radioed for the Midfield Fire Department to come to the scene to treat the plaintiff. (Doc. 20-1, Bell Aff. ¶ 10).

Todd Easter is a firefighter and emergency medical technician (EMT) with the Midfield Fire Department. (Doc. 21-1, Easter Aff. ¶ 1). On April 22, 2011, Easter and Lieutenant Curtis Johnson responded to a call from the MPD requesting assistance at the scene of an arrest in a parking lot on Phillips Drive. (Id. ¶ ¶ 3-4). When Easter arrived on the scene, he determined the plaintiff's identity, asked him what happened during the accident, evaluated his injuries, and provided basic medical treatment. (Id. ¶ 5). The plaintiff informed Easter that he believed Defendant Yearwood hit him with the patrol car because the plaintiff had a gun. (Doc. 21-1, Easter Aff. ¶ 8; Ex. A to Ex. 3).

When Easter treated the plaintiff, he was alert and oriented to his surroundings. (Doc. 21-1, Easter Aff. ¶ 10). The plaintiff was also able to move all of his extremities and his pupils were equal and reactive to light. (Id.) The plaintiff suffered some minor facial trauma such as cuts and scrapes. (Id. ¶ 11) The plaintiff complained of pain in multiple locations, specifically his back, neck, shoulders, and hips. (Id.) The plaintiff also claimed that he lost consciousness during the accident. (Id.) Easter treated the plaintiff's facial trauma at the scene and placed him in a C-collar to immobilize his neck as a precaution because he had been involved in an accident. (Doc. 21-1, Easter Aff. ¶ 11).

Easter does not recall providing treatment to the plaintiff for any leg, knee, or finger injuries. (Doc. 21-1, Easter Aff. ¶ 12). Easter states that based on his treatment of the plaintiff, it did not appear that he had been " run over" by a patrol car. (Id. ¶ 13). Rural Metro Ambulance Service arrived on the scene to transport the plaintiff to the University of Alabama Birmingham (" UAB") Hospital for further assessment and treatment. (Doc. 21-1, Easter Aff. ¶ 14). The plaintiff was also transported to UAB Hospital because Defendant Yearwood and Officer Bell discovered the plaintiff had several outstanding felony warrants. (Doc. 20-10, Yearwood Aff. ¶ 15). The Jefferson County Jail, where Defendant Yearwood intended to take the plaintiff on the felony warrants, required that arrestees with injuries be treated prior to incarceration. (Id.)

Paramedics put the plaintiff on a stretcher and placed him in the back of the ambulance. (Doc. 25, Roberts Aff. at 2). The plaintiff claims he could not walk because of the pain in his legs. (Id.) A paramedic also put something under the plaintiff's nose and told others not to let him go to sleep. (Doc. 25, Roberts Aff. at 2).

Defendant Yearwood remained at UAB Hospital while the plaintiff received treatment. (Doc. 20-10, Yearwood Aff. ¶ 16). UAB released the plaintiff into Defendant Yearwood's custody after the plaintiff's treatment, which lasted approximately one to two hours. (Id.) Defendant Yearwood states that upon the plaintiff's release from UAB, he had a small bandage on his head but did not have any other bandages or obvious medical treatment to any other parts of his body.[5] (Doc. 20-10, Yearwood Aff. ¶ 16).

Defendant Yearwood transported the plaintiff to the Jefferson County Jail where he was booked on several outstanding warrants. (Id. ¶ 17). The plaintiff was treated again for his injuries at the Jefferson County Jail. (Doc. 25, Roberts Aff. at 2). Medical staff prescribed him medication for pain and provided the plaintiff with crutches. (Id.). The plaintiff contends he has " been in and out of the hospital" for treatment for his back, legs, and headaches as a result of his injuries. (Doc. 25, Roberts Aff. at 2; Doc. 1-1 at 3). The plaintiff also requires physical assistance. (Id.)

For relief, the plaintiff requests that Defendant Yearwood pay his medical expenses and $750, 000.00 for his pain and suffering. (Doc. 1-1 at 4).

IV. Discussion

A. Fourth Amendment Seizure

The plaintiff alleges that Defendant Yearwood used excessive force against him when Yearwood intentionally struck the plaintiff with his police cruiser as the plaintiff fled the scene of a crime. (Doc. 1-1 at 3). The Fourth Amendment provides that " [t]he right of the people to be secure in their persons against unreasonable seizures shall not be violated." U.S. Const. amend. IV. A Fourth Amendment seizure occurs " when there is a governmental termination of freedom of movement through means intentionally applied." Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (emphasis added).

Defendant Yearwood claims that he did not intentionally strike the plaintiff with his police vehicle. He contends the collision was an accident and, therefore, not a seizure for purposes of the Fourth Amendment. Viewed in the light most favorable to the plaintiff, however, Defendant Yearwood " came after [the plaintiff] with his patrol car" and " deliberately ran [the plaintiff] down and hit him." (Doc. 1-1 at 3). The plaintiff, who was carrying a gun in his hand when he was hit, told EMT Easter he believed Defendant Yearwood struck him because Yearwood saw the gun in his hand. (Doc. 21-1, Easter Aff. ¶ 8; Ex. A to Ex. 3).

Based on the foregoing, there appears to be a genuine dispute of fact whether Defendant Yearwood intentionally struck the plaintiff with his police vehicle, thereby seizing him under the Fourth Amendment. Nevertheless, even if Defendant Yearwood seized the plaintiff within the meaning of the Fourth Amendment, Yearwood's motion for summary judgment is due to be granted because the seizure was reasonable under the circumstances and Yearwood is entitled to qualified immunity as discussed in the remainder of this report and recommendation. Therefore, the court will assume at this stage of its Fourth Amendment analysis that Yearwood intentionally struck the plaintiff.

B. Whether Fourth Amendment Seizure Was Reasonable

Assuming Defendant Yearwood intentionally struck the plaintiff with his police vehicle in an effort to stop the plaintiff from fleeing and to arrest him, the next question is whether the means by which Defendant Yearwood seized the plaintiff were objectively reasonable under the circumstances. See Graham v. Connor, 490 U.S. 386, 395-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that a claim of excessive force in the course of an arrest or other seizure " should be analyzed under the Fourth Amendment and its " reasonable standard'"). A court looks to the facts and circumstances of each particular case, " 'including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [ the suspect] is actively resisting arrest or attempting to evade arrest by flight.'" Lee v. Ferraro, 284 F.3d 1188, 1198 (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

" The 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officer's actions are 'objectively reasonable' in light of the facts and circumstances confronting him, without regard for his underlying intent or motivation." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004). " In determining the reasonableness of the force applied, we look at the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balance the risk of bodily harm to the suspect against the gravity of threat the officer sought to eliminate." McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009) (citing Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). A police officer's " use of force must be judged on a case-by-case basis from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight." Jackson v. Sauls, 206 F.3d 1156, 1170 (11th Cir. 2000). Moreover, " [t]he 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." Graham, 490 U.S. at 396-97.

The Eleventh Circuit Court of Appeals recently held in an unpublished opinion that a reasonable jury could find that an officer's actions of striking a fleeing suspect with his police vehicle in order to stop and arrest the suspect was objectively un reasonable under the circumstances. Gaillard v. Commins, 562 Fed.App'x 870, 875 (11th Cir. 2014). In Gaillard, video and other evidence showed that the officer turned and accelerated his vehicle in the direction of the suspect, who was unarmed, striking and killing the suspect. Id. at 873-74 .

The plaintiff admits that he was " in the process of embezzling gasoline from a parked Bestway truck" when officers were called to the scene. (Doc. 25, Roberts Aff. at 1). The plaintiff further states that when Officer Bell pulled into the parking lot and turned on his lights, he began to run across the parking lot. (Id. at 2). The plaintiff does not dispute that he had a gun in his hand as he was fleeing the scene and running towards Defendant Yearwood. Assuming without deciding that Defendant Yearwood intentionally struck the plaintiff with his vehicle to stop the plaintiff and effect an arrest, the use of force was reasonable under the circumstances. Unlike the suspect in Gaillard, the plaintiff was heading towards Defendant Yearwood's vehicle, brandishing a gun, and posed a threat of serious physical injury or death to Yearwood, other officers, and the public. Indeed, the law in this Circuit does not require a police officer in such a dangerous situation to " wait until the moment a suspect uses a deadly weapon to act to stop the suspect." Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007).

Neither did Yearwood strike the plaintiff with his vehicle with such force as to gravely injure or kill him, as the officer did in Gaillard . Rather, the plaintiff complains he was knocked unconscious, sustained a " busted eye lube, " a broken finger, and injuries to his knees and chest as a result of being hit by Defendant Yearwood. (Doc. 1-1 at 3). The plaintiff also claims Defendant Yearwood ran over his legs with his vehicle. (Id.) However, the undisputed physical evidence shows that: (1) when EMT Todd Easter treated the plaintiff on the scene, he was alert and oriented to his surroundings and able to move all of his extremities; (2) the plaintiff suffered minor facial trauma and complained of pain in multiple locations, but did not complain to Easter of Defendant Yearwood running over his legs; (3) the plaintiff was released from the hospital after only a one to two hour period of treatment; and (4) when the plaintiff was released from the hospital, he had only a small bandage on his head and did not have any other bandages or obvious medical treatment to any other parts of his body.

Moreover, the plaintiff's claims that Yearwood rolled his vehicle over the plaintiff's legs are ambiguous. It is unclear whether the plaintiff alleges he was merely knocked underneath Defendant Yearwood's car when he was struck, thus requiring Defendant Yearwood to roll from over him, or whether the plaintiff claims the tires of Yearwood's patrol car rolled over his legs. While the plaintiff alleges his legs hurt after the collision and he was given crutches in jail, there is no medical evidence in the record to suggest the plaintiff sustained injuries consistent with the tires and weight of Yearwood's patrol car being rolled over the plaintiff's legs.

If Defendant Yearwood intentionally struck the plaintiff with his vehicle, the undisputed facts support that the amount of force was relatively small in light of the potential danger the plaintiff posed to Yearwood, other officers, and the public. Scott v. Harris, 550 U.S. 372, 383-84, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Therefore, Yearwood's use of force was objectively reasonable under the Fourth Amendment.[6]

C. Qualified Immunity

Even if Defendant Yearwood intentionally struck the plaintiff with his police vehicle and such conduct was unreasonable under the Fourth Amendment, Yearwood is entitled to qualified immunity. " Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known." Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quotation marks omitted). To obtain qualified immunity, the government official " must first prove that he was acting within the scope of his discretionary authority when the alleged wrongful acts occurred." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation marks omitted). " Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity in not appropriate." Id. The plaintiff can make this showing that " (1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) (footnote omitted).

There is no dispute that Defendant Yearwood was acting in his discretionary capacity when the incident made the basis of this action occurred. See Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (" discretionary authority" includes " all actions of a government official that (1) 'were undertaken pursuant to the performance of his duties, ' and (2) were 'within the scope of his authority'") (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)). The burden is, therefore, on the plaintiff to demonstrate that Defendant Yearwood violated clearly established law at the time he struck the plaintiff with his police vehicle.

" The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). " If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id.

The plaintiff can demonstrate " that the contours of the right were clearly established in several ways." Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). " First, the [plaintiff] may show that 'a materially similar case has already been decided.'" Id. (quoting Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)). " Second, the [plaintiff] can point to a 'broader, clearly established principle [that] should control the novel facts [of the] situation.'" Id. (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). " Finally, the conduct involved in the case may so obviously violate the constitution that prior case law in unnecessary." Id. (quotation marks omitted and alterations adopted).

The plaintiff has not pointed to -- and the court has not found -- any materially similar case from the United States Supreme Court, the Eleventh Circuit Court of Appeals, or the Alabama Supreme Court which establishes that Defendant Yearwood's conduct was clearly unlawful under the given circumstances. As stated herein, the Eleventh Circuit determined in Gaillard that a reasonable jury could find that an officer's conduct of striking and killing an unarmed suspect who was fleeing objectively unreasonable. Gaillard v. Commins, 562 Fed.App'x 870, 875 (11th Cir. 2014). However, it is undisputed that the plaintiff in the present case was fleeing from an officer and the scene of a crime, armed with a pistol in his hand, and running towards Defendant Yearwood. Thus, Gaillard does not constitute clearly established law where the suspect was armed with a weapon. Moreover, Gaillard was decided on April 7, 2014, almost three years after the alleged incident and, therefore, could not have put Defendant Yearwood on notice that his conduct was unlawful.

Neither has the plaintiff shown that the constitutional right was clearly established through a " broader, clearly established principle." Mercado, 407 F.3d at 1159. In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the U.S. Supreme Court explicitly addressed " the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon" fleeing on foot. Id. at 3. The Supreme Court concluded that " such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. Again, Garner does not constitute clearly established law for the present action, where the plaintiff was carrying a deadly weapon.

Additionally, the present action does not fall into the narrow exception of a case that " so obviously" violates the constitution that prior case law is unnecessary. Id. The Eleventh Circuit has stated:

Prior cases that have fit into the exception involved, for example, a police officer who allegedly allowed his canine to attack for two minutes a prone and wholly compliant suspect who had stolen twenty dollars worth of snacks, see Priester[v. City of Riveiera Beach, Fla., 208 F.3d 919, 927 (11th Cir. 2012)]; a police officer who allegedly slammed a suspect's head against the trunk of his cruiser after the suspect has been arrested and fully secured, see Lee, 284 F.3d at 1199; and a group of police officers who allegedly threw a secured suspect headfirst into the pavement before kicking him repeatedly, see Slicker v. Jackson, 215 F.3d 1225, 1227-28 (11th Cir. 2000).

Terrell v. Smith, 668 F.3d 1244, 1257-58 (11th Cir. 2012).

Therefore, even if Defendant Yearwood intentionally hit the plaintiff with his police cruiser, thereby seizing the plaintiff pursuant to the Fourth Amendment, and such seizure was unreasonable, Yearwood is nevertheless entitled to qualified immunity because the applicable law at the time did not give fair and clear warning that his conduct -- given the factual particularities of this case -- was unconstitutional. Based on the foregoing, Defendant Yearwood's motion for summary judgment on the plaintiff's Fourth Amendment claim is due to be granted.

D. Fourteenth Amendment

If the plaintiff cannot prevail against Defendant Yearwood under the Fourth Amendment, the court must analyze whether the plaintiff can prevail against Yearwood under the substantive due process requirements of the Fourteenth Amendment. The standard for a Fourteenth Amendment substantive due process claim is whether the police officer's conduct " shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In cases where police officers are required to make quick judgments about the proper course of action, and to act quickly, such as in pursuit situations, the Fourteenth Amendment is only violated where the officer has intent to cause the suspect harm. Id. at 854. Indeed, " a violation of substantive due process will be found only when a plaintiff can show that the officer had 'a purpose to cause harm unrelated to the legitimate object of arrest.'" Vaughan v. Cox, 343 F.3d 1323, 1333 (11th Cir. 2003) (quoting Lewis, 523 U.S. at 836)).

The plaintiff has not presented any evidence to suggest that Defendant Yearwood's conduct in hitting the plaintiff with his police car was motivated by anything other than a desire to stop the plaintiff from fleeing and to arrest him. The court notes that the plaintiff stated himself that he believed Defendant Yearwood hit him because the plaintiff was carrying a weapon. (Doc. 21-1, Easter Aff. ¶ 8). Because there is no indication that Defendant Yearwood intended to cause harm to the plaintiff unrelated to the legitimate object of arrest, Yearwood's motion for summary judgment to the extent the plaintiff alleges a Fourteenth Amendment claim is due to be granted.

RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that Defendant Yearwood's motion for summary judgment as to the plaintiff's Fourth and Fourteenth Amendment claims be GRANTED and the claims be DISMISSED with prejudice.

Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. ' 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Objections not meeting the specificity requirement set out above will not be considered by a district judge.

A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.

The Clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff.


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