United States District Court, E.D. Virginia, Alexandria Division
Antonio D. Parker, Plaintiff,
Aimee Scott Loren, et al., Defendants.
ANTHONY J. TRENGA, District Judge.
Antonio D. Parker, a Virginia inmate proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983, arising out of his May 21, 2012 arrest in the city of Fredericksburg, Virginia. The sole remaining claim in this action is that one of the two remaining defendants, Officer Ryan Merrell and Sergeant Dana Nielsen, used excessive force against plaintiff during his arrest. Defendants have filed a Motion for Summary Judgment, a memorandum of law and affidavits to support their motion, and have provided plaintiff the notice required by Local Civil Rule 7(K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Dkts. 60, 61. Plaintiff has submitted a response to the defendants' Motion, to which the defendants filed a reply. Dkts. 62, 63. For the reasons that follow, the claim against defendant Nielsen will be dismissed, and defendant Merrell's Motion for Summary Judgment will be granted.
I. Factual Background
On the evening of May 21, 2012, plaintiff was supposed to pick up his girlfriend, Bryana Stewart, at an apartment she had shared with her sister, Victoria Pruitt, prior to her relationship with plaintiff. See Am. Compl. [Dkt. 12], "Statement of Claim, " at VI. After several hours of trying to get in touch with Bryana and visiting the apartment, plaintiff got into bed for the night at approximately 9:00 p.m. See id. at VI-VIl. Bryana called him at this time, so he drove to the apartment to meet her. Plaintiff learned at this time that Bryana and Victoria had been arguing, apparently about the relationship between Bryana and plaintiff. However, plaintiff did not yet know the subject of the argument. Id. at VII.
At approximately 10:00 p.m., plaintiff knocked on Victoria's door. When Victoria did not answer, plaintiff started to walk away to a friend's house, due to the existence of a neighborhood curfew preventing anyone from being outside between sunset and sunrise. Id. at VII-VI2. Victoria then came to the door and argued with plaintiff about his relationship with Bryana for approximately two minutes. Unbeknownst to plaintiff, Victoria "had already called the police when she seen [him] on arrival" to make a "false and reckless" 911 call. She informed the operator that she did not know plaintiff, that plaintiff "threatened to break out all [her] windows" and hurt her children, that plaintiff banged on the door, and that plaintiff was talking to himself and behaving erratically. Id. at VI2. Victoria also allegedly told police that she thought plaintiff's name was Antonio Parker. Id . Plaintiff states that Victoria spoke with plaintiff as a way to "stall" him until the police arrived. Id.
After arguing with Victoria, plaintiff walked away to go a friend's house to wait for Bryana. As he was walking between two parked cars, he saw a police car approaching. A white male officer got out of the car and approached plaintiff with a weapon drawn. Id. at VI3. The officer immediately fired his taser at plaintiff "without commands, " despite the fact that plaintiff's hands were raised. Id . In response to plaintiff's inquiries about the reasons behind the use of the taser, the officer responded: "Shut up or I fucking [sic] taser you again." Id. at VI5. The officer then shot plaintiff with the taser a second time, for approximately twenty-five seconds, before pinning plaintiff to the ground and handcuffing him. Id . The officer also "yanked the [taser] prongs out [of plaintiff's body, ] tearing flesh." Id . Plaintiff was then placed in the back of a police car and the officer quickly drove away. Id.
Plaintiff believes that Victoria's 911 call "caused the officer to become atrocious (visious) [sic] and aggressive before he arrived[, ] [because he] thought [he] had an unstable suspect...." Id. at VI3. Plaintiff has alleged that the officer involved in his arrest was defendant Merrell. See, e.g., Plaintiff's Response to Defendants' Motion for Summary Judgment ("Pl.'s Resp.") [Dkt. 62], at 2.
However, both Merrell and Nielsen aver that they did not participate in plaintiff's arrest. Nielsen arrived on the scene after plaintiff had been arrested, and did not have any interaction with plaintiff. Defendants' Memorandum in Support of their Motion for Summary Judgment ("Defs.' Mem.") [Dkt. 61], Ex. 2 (Nielsen Aff.) ¶ 2. Merrell, although he was on duty on May 21, 2012, was not dispatched to assist in plaintiff's arrest. He thus did not have any interaction with the plaintiff on the night of his arrest. Defs.' Mem., Ex. 1 (Merrell Aff.) ¶ 2.
II. Procedural History
Plaintiff initially brought claims for excessive force, malicious prosecution, and false arrest. He also initially sought to hold David Nye, Chief of the Fredericksburg Police Department; the City of Fredericksburg; several additional police officers; the Commonwealth's Attorney; Victoria Pruitt; and several other private citizens liable as defendants. The Court sent waivers of service to defendants Nielsen and Merrell on March 10, 2014, and dismissed all other claims against all other defendants. Since then, the plaintiff has filed a Motion to Amend his complaint, which the Court denied on June 16, 2014. Dkt. 52. The Court also denied plaintiff's numerous requests for the Court to amend its Orders and allow service on other defendants and for additional claims. See, e.g., Dkts. 52, 59. Accordingly, at this stage of the litigation, Nielsen and Merrell are the only remaining defendants, and plaintiff's excessive force claim is the only remaining claim.
III. Defendant Nielsen
The parties agree that defendant Nielsen should be dismissed from this action. It is undisputed that Nielsen was not present at the scene of plaintiff's arrest, and therefore did not have any interaction or physical contact with plaintiff. See Defs.' Mem., Ex. 2 ¶¶ 2-3. In addition, plaintiff has stated numerous times that Nielsen should no longer be a defendant in this action. See, e.g., Pl.'s Resp., at 4 ("Officer R. Merrell should be the only defendant in this action...."); Plaintiff's Mem. in Supp. of his Mot. to Sustain Defendants Acting under Color in Violation of § 1983 Fed.R.Civ.P. 8(a)(2) ("Pl.'s Mem.") [Dkt. 35], at 14 ("If the court can when possible Nielsen... mabe [sic] dismissed."). Accordingly, the claim against Nielsen will be dismissed.
IV. Standard of Review
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The moving party bears the burden of proving that judgment as a matter of law is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet that burden, the moving party must demonstrate that no genuine issues of material fact are present for resolution. Id. at 322. Once a moving party has met its burden to show that it is entitled to judgment as a matter of law, the burden shifts to the nonmoving party to point out the specific facts that create disputed factual issues. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party must present some evidence, other than its initial pleadings, to show that there is more than just a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Celotex, 477 U.S. at 324 (quoting Rule 56(e) ("Rule 56(e)... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by [other evidence] designate specific ...