Scottie Pennington v. Bob Terry

644 F. App'x 533
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 23, 2016
Docket15-5314
StatusUnpublished
Cited by24 cases

This text of 644 F. App'x 533 (Scottie Pennington v. Bob Terry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scottie Pennington v. Bob Terry, 644 F. App'x 533 (6th Cir. 2016).

Opinions

SUHRHEINRICH, Circuit Judge.

Plaintiff-Appellant Scottie Pennington (“Pennington”) appeals the district court’s decision granting summary judgment to Defendant-Appellees Sergeant James Harris (“Sergeant Harris”) and Officer Brian Long (“Officer Long”) (collectively “Defendants”) in his § 1983 action alleging excessive force. On March 2, 2012, Sergeant Harris made a routine traffic stop of a vehicle in which Pennington was a passenger. During the traffic stop, the officers attempted to prevent Pennington from swallowing drugs in an apparent effort to destroy evidence. Although the incident was recorded by the dashboard camera mounted on Officer Long’s vehicle, the parties dispute whether Sergeant Harris discharged his Taser against Pennington’s torso in the course of the struggle. The district court ruled that even if Sergeant Harris did deploy his Taser, using a Taser to prevent Pennington’s destruction of evidence and potential drug overdose was objectively reasonable and did not violate the Constitution. We affirm, but for different reasons.

I. BACKGROUND

A. Facts

On the evening of March 2, 2012, Sergeant Harris pulled over Robert Caudill (“Caudill”) for driving with a revoked license. Pennington was á passenger in . Caudill’s truck. Officer Chris Lynn (“Offi[535]*535cer Lynn”)1 and Officer Long arrived soon after Sergeant Harris made the stop. Officer Lynn stood by the driver’s side of the truck, while Officer Long stood next to the passenger side, where Pennington was sitting.

Officer Long’s dashboard camera recorded most of the ensuing events. R.29. The parties stipulated that this video accurately shows Pennington’s arrest. Although the audio from the video recording is not always distinct, the visual image clearly depicts all of the material facts. Moreover, the video is the only evidence on which Pennington relies to support his version of the facts. Appellant Reply Br. 4-8. Therefore, unless otherwise specified, we relate the following facts as gleaned from the video recording.

According to his affidavit, Officer Long noticed that Pennington appeared to be “trying to hide something” and asked Pennington to step outside the truck. R.29, at 2:08. Pennington voluntarily exited the vehicle. Id. at 2:10-2:15. Shortly after stepping outside the truck, Pennington turned away from Officer Long, bent over, coughed, and transferred something from his right hand to his mouth. Id. at 2:15-2:19. Observing Pennington’s behavior, Sergeant Harris rushed over and grabbed Pennington’s right arm and neck, attempting to prevent Pennington from swallowing what Sergeant Harris believed to be pills. Id. at 2:20-2:28. Pennington admitted in his deposition that he was trying to swallow the pills because he did not have a prescription for them. Officer Long held Pennington’s arms behind his back while Sergeant Harris grasped Pennington’s neck. Id. at 2:27. The officers repeatedly ordered Pennington to “spit it out.” Id. at 2:27-2:55.

After about thirty seconds of restraining Pennington in this manner, the officers placed Pennington face-down on the ground. Id. at' 2:56. Sergeant Harris again instructed Pennington to “spit it out.” Id. at 2:59. While Sergeant Harris continued to hold Pennington’s neck, Officer Long handcuffed Pennington. Id. at 2:57-3:46. Once Pennington was handcuffed, Sergeant Harris rolled Pennington onto his back and asked Pennington if he had swallowed the pills. Pennington stated he had not swallowed anything. Id. at 3:50-3:56. Sergeant Harris inspected Pennington’s mouth with Officer Long’s flashlight. Id. at 4:03-4:07. Officer Long pointed to Pennington’s mouth and said, “It’s right there on your teeth.” Id. at 4:07.

Sergeant Harris returned Officer Long’s flashlight. Id. at 4:09. He then removed an object from his left holster and disassembled it into two pieces. Id. at 4:09-4:11. According to the district court, Sergeant Harris held a flashlight in his left hand and what appeared to be a Taser in his right hand. Although difficult to discern with certainty from the video, we assume that Sergeant Harris did retrieve a Taser from his holster because Sergeant Harris concedes both- in his appellate brief and in his affidavit before the district court that he removed a Taser from his holster during the arrest. Appellee Br. 11.

After retrieving these two items, Sergeant Harris turned Pennington from his back onto his left side. R.29, at 4:12. Sergeant Harris then placed his feet on either side of Pennington’s body and leaned slightly to the right, making his [536]*536Taser-bearing right hand roughly parallel with Pennington’s stomach. Id. at 4:13. Sergeant Harris’s left hand, still grasping the flashlight,2 pressed Pennington’s right side. Id. Sergeant Harris again commanded Pennington to “spit it out.” Id. The video shows that Sergeant Harris’s right hand, holding the Taser, came close to the right side of Pennington’s stomach but never touched it. As the district court observed, “[t]he video indicates Plaintiff did not convulse and remained lucid throughout the struggle.” Pennington did not exhibit any signs of pain or physical agitation at the moment of the alleged tasing. Nor did he make any verbal statement expressing pain or requesting the officers to stop what they were doing. Pennington merely continued to insist he had no pills. Id. at 4:14-4:19. During this span of time, Officer Long stood next to Pennington, leaning over him and shining his flashlight near Pennington’s face. Id. at 4:10-18. Officer Long was not touching Pennington or forcing him to the ground at this point.

Sergeant Harris then stood upright, reconnected the flashlight to the Taser, and holstered it. . Id at 4:19-4:25. He stepped away from Pennington and instructed him to lie on his stomach. Id. at 4:37. The video next shows Sergeant Harris bending over Pennington; picking up two or three long, thin objects from Pennington’s lower back area; and discarding the objects onto the ground nearby. Id. at 4:42-4:47. The district court ventured that these objects were “perhaps taser prongs.”

Officer Long searched the passenger seat of Caudill’s truck and found two syringes. Id. at 4:44-5:30. Sergeant Harris searched the ground around Pennington and Pennington’s pockets. Id. at 5:14— 6:53. Sergeant Harris’s statement on the video indicates he found one pill in Pennington’s pocket. Id. at 6:53-7:03. The officers state in their affidavits that Sergeant Harris found pills on the ground that Pennington either dropped or spit out.

During and after this search, the officers asked Pennington several times if he needed medical attention because of the drugs he ingested. Id. at 6:45-8:47. Each time, Pennington insisted that he was “fine.” Id. at 6:45-8:47.

The officers took Pennington to Putnam County Jail. On the inmate medical form, Pennington indicated he had no “injuries that need treatment at this time.” The drugs Sergeant Harris recovered at the scene were sent to the crime lab and identified as a Schedule III narcotic. Pennington pled guilty to possession of a Schedule III narcotic.

B. Procedural History

Pennington filed this § 1983 action pro se against Sergeant Harris and Officer Long alleging excessive force in the course of his arrest.

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