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Elder v. Thompson

United States District Court, W.D. Virginia, Danville Division

April 22, 2014



JACKSON L. KISER, Senior District Judge.

On August 27, 2013, Plaintiff Michael Elder ("Elder") filed a pro se complaint against the City of Danville ("the City"), and Officer E. K. Thompson ("Thompson") of the Danville Police Department. The City moved to dismiss the complaint against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; that motion was granted. (See Order, Dec. 12, 2013 [ECF No. 36].) Thompson, the only remaining defendant, moved for summary judgment on March 21, 2014. (Mot. for Summ. J., Mar. 21, 2014 [ECF No. 55].) The matter was fully briefed, and the parties appeared for oral argument on the Motion on April 17, 2014. Having considered the briefs and arguments of the parties, and after having reviewed the relevant portions of the Record, the matter is now ripe for disposition. For the reasons stated below, Thompson's Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. Specifically, Thompson's summary judgment motion will be granted as to Elder's claims of false arrest and illegal search. Thompson's motion will be denied on Elder's claims of excessive force and deliberate indifference to a serious medical condition. Those claims will proceed to trial.


Defendant Officer E. K. Thompson is a Sergeant with the Danville Police Department. (See Def.'s Mem. in Supp. of Mot. for Summ. J. Ex. B pg. 1 [ECF No. 56-2] [hereinafter "Thompson Aff."].) In that capacity, Thompson had occasion in the past to interact with Plaintiff Michael Elder, such that, on the date in question, he recognized Elder's name and face. (Id. pg. 1.) Prior to the encounter at issue in this case, Thompson noticed what he assumed to be an arrest warrant for Michael Elder at the police station. (Id.) Generally, warrants and other court documents are placed in slots assigned to separate beats in the police station; the slots are commonly referred to as the "pigeon hole." If a warrant is to be served in the geographic area that Beat 10 covers, for example, it is placed in Box 10. According to Thompson, he had noticed a "jacket"-the outer cover of court documents-with Elder's name in the pigeon hole, and he assumed the document was a warrant for Elder's arrest.[2] According to Elder, Thompson had attempted to serve the "warrant" several times before, including using the Fugitive Task Force to attempt to serve it. (Pl.'s Br. in Opp. to Def.'s Mot. for Summ. J. pg. 11 [ECF No. 63].) Thompson admits that he had been by Elder's home looking for him several times. (See Def.'s Mem. in Supp. of Mot. for Summ. J., March 21, 2014 [hereinafter "Def.'s Br."] Ex. E 20:14-16 [ECF No. 56-6].) At no point, however, did Thompson ever open the jacket to read the warrant; he merely read the cover, which included Elder's name, address, "Contempt of Court, " and Martinsville as the issuing court. (See Def.'s Br. Ex. E 20:7-11.) What Thompson assumed to be a warrant was merely a summons.

On October 25, 2011, Thompson was on patrol in the area near Stonewall Apartments on North Main Street in Danville, Virginia. (Thompson Aff. pg. 1.) While there, Thompson encountered Elder "sitting in the driver's seat of a white four-door vehicle." (Id.) Thompson recognized Elder and recalled seeing a jacket with Elder's name on it in the pigeon hole. (Id.) Thompson approached the car and told Elder to step out of the vehicle; Elder complied. (Id.) According to Elder, Thompson approached the car in an aggressive manner and said, "I got your ass now." (Elder Aff. pg. 1.) Elder agrees that he was sitting in the car-which he asserts belonged to his wife-with his cousin, Michael. (Id.) Elder's sister, Janice Hairston, was sitting on the porch of a nearby apartment. (Id.) Thompson informed Elder that there was a warrant for his arrest. (See Elder Aff. pg. 1; Thompson Aff. pg. 1.) Elder insisted that the issue had been taken care of and that he had the paperwork to show that the issue had been resolved, but Thompson allegedly replied that he did not want to look at any paperwork. (Elder Aff. pg. 2.) Thompson then radioed police dispatch to verify Elder's outstanding warrant. (Elder Aff. pg. 2; Thompson Aff. pg. 1.) Thompson asked the dispatcher to run Elder's name "for locals"; after the dispatch confirmed that Thompson was seeking information regarding "Michael Ray Elder, date of birth 5/15/66, " the system returned an automated "triple tone" which indicated to Thompson that the warrant search had returned an active warrant. (Def.'s Br. Ex. A; Thompson Aff. pg. 2). Thompson inquired into the nature of the warrant, asking, "What's it for?" (Def.'s Br. Ex. A.) The dispatcher responded that the warrant was for "FTA, " which Thompson understood to mean failure to appear. (Id.)

Thompson claims he has served hundreds of warrants for failure to appear during his twelve years as a Danville police officer. (Thompson Aff. pg. 2.) He states that, to the best of his memory, every single failure to appear warrant has been in the form of a capias, which requires the arrest of the subject. (Id.) Ultimately, Thompson would discover that the Martinsville court did not issue a capias for Elder's arrest, but rather merely issued a show-cause summons that did not authorize or require Elder's arrest. (See Thompson Aff. pg. 3; Elder Aff. pg. 4.) At the time Thompson arrested Elder, however, he was under the impression that Elder's failure to appear was in the form of a capias, as the dispatcher had confirmed that a warrant existed.

According to Thompson, while he was speaking with the dispatcher, he observed Elder reach into his pockets. (Thompson Aff. pg. 2.) He allegedly told Elder to stop, and claims that Elder withdrew two objects from his pocket and tossed them through the open driver's-side window and into the back seat. (Id.) He also threw the paperwork from the Martinsville court into the back seat. (Id.) Thompson states that the two objects appeared to be folded currency. (Id.) Elder claims that he only threw the court paperwork into the car. (Elder Aff. pg. 2.)

Once the dispatcher confirmed the non-existent warrant, Thompson claims he informed Elder that he was under arrest. Thompson states that Elder refused to comply. (Thompson Aff. pg. 2.) Thompson admits he approached Elder, removed his pepper spray, [3] and warned Elder twice that, if he did not put his hands behind his back, Thompson would spray him. (Id.)

Thompson contends that Elder complied only after the second warning, and Thompson thereafter placed the handcuffs on him without incident. (Id.)[4]

According to Elder, however, Thompson never warned him about the pepper spray and never asked him to submit to arrest. Elder states that, when he tossed the court paperwork into the car, "[O]fficer Thompson grabbed [his] left hand and told [him] to put [his] hands behind his back and that [he] was under arrest. [Elder] complied with the officer and handcuffs were placed on [him]." (Elder Aff. pg. 2.) Elder states that Thompson then "pushed [him] aggressively" towards Thompson's police cruiser, while Elder pleaded with Thompson to check the court paperwork. (Id.)

Thompson states that, once he maneuvered Elder to the police car and instructed Elder to get into the back, Elder began "passively resisting by stiffening up like a board and refusing to move or to allow [Thompson] to move him." (Thompson Aff. pg. 3.) Thompson continues:

At this point, I once again withdrew my mace spray and warned Mr. Elder that if he refused to comply he would be sprayed. Mr. Elder continued to maintain a stiff and rigid posture and refused to obey my instruction. At that point, I used the mace spray. Mr. Elder still refused to get into the vehicle. Instead, he bent forward and I used a tactic which I had been taught in my training of four knee[-]nerve strikes before he finally complied with my instructions to enter the vehicle.

(Id.) According to John Combs, an individual whom Thompson has ofference as an expert witness, [5] a knee-nerve strike means that, "Thompson struck Elder on the side of his leg with his knee...." (Def.'s Br. Ex. D, pg. 4.)

Elder relays a very different version of events. Elder claims that, while Thompson was pushing Elder towards his cruiser, Thompson "open[ed] the door with his right hand and push[ed him] into the door of the police car." (Elder Aff. pg. 2.) Elder describes the rest of the encounter as follows:

[I'm] still pleading with him to check the paperwork. As I'm pleading with [O]fficer Thompson to check the paperwork he sprays me with pepper spray then starts to hit me with his right forearm and elbow across the right side of my face and neck area. I couldn't see from that point on. I do know that I was struck in the right thigh area with something (through discovery I learned it was a metal rod that policemen use). I told the officer I couldn't get in the car with him pushing me against the car. He then stopped pushing and hitting me long enough to allow me room to get in the car.

(Elder Aff. pg. 2-3.) Once Elder was in the police cruiser, Thompson searched Elder's car.

Thompson states that the search of Elder's car was a "search incident to arrest." (Thompson Aff. pg. 3.) Thompson found two pieces of currency inside the car: one was lying on the rear passenger seat, and a second, folded bill was on the floorboard of the passenger's side of the car. (Id.) Thompson previously testified at a suppression hearing in state court that the manner in which the bill was folded-"folded up long ways and then half and then half again"- brought his attention to the bills. (Def.'s Br. Ex. E 23:24-25.) Thompson unfolded the bill and, inside, found an off-white rock that he later determined to be cocaine. (Thompson Aff. pg. 3.) Elder maintains that the money was not his. (See Elder Aff. pg. 3.)

Thompson then transported Elder to the police station. Once they arrived, "the warrant for failure to appear was determined to be a show cause summons. Mr. Elder was booked and placed in the jail for possession of cocaine charge." (Thompson Aff. pg. 3.) He was not booked for or charged with failure to appear.

Thompson's affidavit does not continue any further. Elder, however, states that Thompson continued to make threats to him on the ride to the police station. (Elder Aff. pg. 3.) Elder also repeatedly requested that Thompson "take [him] to get the pepper spray out [his] eye's [sic]." (Id.) Another officer asked Thompson what happened, and Elders says that Thompson "sarcastically responded[, ] I had to gas him.'" (Id.) After he was patted down prior to booking, Elder was permitted to wipe "some" the pepper spray off of his face with a paper towel. (Id.) Elder claims that he again requested that the pepper spray be removed, "but [O]fficer Thompson ignore[d] [his] pleas." (Id.) After being booked and released on his own recognizance, Elder went to the hospital and had his injuries treated. (Elder Aff. pg. 4; Am. Compl. Ex. C.) Elder was treated for "bilateral pepper spray irritative conjunctivitis, " "contusions/abrasions, " and "HTN-exacerbation." (Am. Compl. Ex. C.)[6] He was referred to Dr. Robert Goodnight for a follow-up, and to Dr. Terry Odom to "recheck on pepper spray injury to eye." (Id.)

On August 27, 2013, Elder filed an in forma pauperis Complaint in this Court against Officer Thompson and the City of Danville ("the City"). I granted his motion seeking IFP status, and both Officer Thompson and the City were served. The City moved to dismiss the Complaint pursuant to Rule 12(b)(6); I granted that motion. Thompson filed an Answer asserting "qualified immunity" as an affirmative defense. (See Ans. ΒΆ 17 [ECF No. 26].) On March 21, Thompson moved for summary judgment, asserting that qualified immunity applies and that his arrest of Elder and subsequent physical encounter did not violate Elder's clearly established constitutional rights. (See Def.'s Br. pg. 7.) Elder responded with a written brief and a sworn and notarized affidavit recounting his version of the events. (See Pl.'s Br. in Opp. to Def.'s Mot. for Summ. J., April 4, 2014 [ECF No. 63] [hereinafter "Pl.'s Br."].) Thompson replied on April 11, 2014. (Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J., April 11, 2014 [ECF No. 66].) The parties argued the Motion on April 17, 2014, and the matter is now ripe for decision.[7]


Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); George & Co. LLC v. Imagination Entm't Ltd. , 575 F.3d 383, 392 (4th Cir. 2009). A genuine dispute of material fact exists "[w]here the record taken as a whole could... lead a rational trier of fact to find for the nonmoving party." Ricci v. DeStefano , 129 S.Ct. 2658, 2677 (2009) (internal quotation marks and citing reference omitted); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A genuine dispute cannot be found where there is only a scintilla of evidence favoring the nonmovant; rather, a court must look to the quantum of proof applicable to the claim to determine whether a genuine dispute exists. Scott v. Harris , 550 U.S. 372, 380 (2007); Anderson , 477 U.S. at 249-50, 254. A fact is material where it might affect the outcome of the case in light of the controlling law. Anderson , 477 U.S. at 248. On a motion for summary judgment, the facts are taken in the light most favorable to the non-moving party insofar as there is a genuine dispute about those facts. Scott , 550 U.S. at 380. At this stage, however, a court's role is not to weigh the evidence, but simply to determine whether a genuine dispute exists making it appropriate for the case to proceed to trial. Anderson , 477 U.S. at 249. It has been noted that "summary judgment is particularly appropriate... [w]here the unresolved issues are primarily legal rather than factual" in nature. Koehn v. Indian Hills Cmty. Coll. , 371 F.3d 394, 396 (8th Cir. 2004).

The movant has the initial burden of pointing out to the court where the deficiency lies in the non-movants's case that would make it impossible for a reasonable fact-finder to bring a verdict in the non-movants's favor. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). A moving defendant may show that he is entitled to judgment as a matter of law by demonstrating that the plaintiff could not prove an essential element of his case. Id. at 322-23. It is then up to the plaintiff to demonstrate to the court that there are genuine issues of material fact and that he has made a sufficient showing on each of the essential elements of his case. Emmett v. Johnson , 532 F.3d 291, 297 (4th Cir. 2008); Hinkle v. City of Clarksburg , 81 F.3d 416, 421 (4th Cir. 1996). When the defendant provides affidavits and other materials with his motion for summary judgment, the plaintiff must respond with affidavits, deposition testimony, or as otherwise provided in Fed.R.Civ.P. 56(c). Celotex Corp. , 477 U.S. at 324; Pension Ben. Guar. Corp. v. Beverley , 404 F.3d 243, 246 (4th Cir. 2005). Mere allegations, denials, references to the complaint, or oral argument is insufficient to rebut a defendant's motion which is supported by affidavits. Fed.R.Civ.P. 56(e)(2); Berckeley Inv. Group, ...

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