The opinion of the court was delivered by: Elizabeth M. Timothy United States Magistrate Judge
ORDER, SECOND REPORT AND RECOMMENDATION
Plaintiff Taurean Xavier Proch ("Proch"), a federal inmate, proceeds pro se and in forma pauperis in this action brought pursuant to 42 U.S.C. § 1983 against Defendant Robert R. DeRoche ("DeRoche"), a police officer in the Crestview Police Department, Crestview, Florida.*fn1 The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive motions. See N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B)(C), and Fed. R. Civ. P. 72(b). Presently before the court are the cross-motions for summary judgment filed by Proch (Doc. 94), and DeRoche (Doc. 105). For the reasons set forth below, the court recommends that Proch's motion for summary judgment be denied and that DeRoche's motion for summary judgment be granted.
On May 26, 2011, adopting this court's recommendation, the district
court denied DeRoche's motion to dismiss Proch's first amended
complaint (see Docs. 12, 33, 50, and 56).*fn2
Subsequently, this court granted Proch's motion for leave to file a
second amended complaint (Docs. 62, 63).*fn3 DeRoche
answered, asserting, inter alia, the affirmative defense of qualified
immunity (Doc. 64 at 3).*fn4 In the second amended complaint Proch alleges
the following. On May 12, 2008, DeRoche and another Crestview Police
Department officer, Donna Collins ("Collins"), came to the Crestview
apartment at which Proch resided with his girlfriend, Dana McKinney
("McKinney"). Without explanation or introduction, DeRoche ordered
Proch to turn around and place his hands behind his back. Proch turned
but did not comply with the order to place his hands behind him
because, under the circumstances, he was uncertain of DeRoche's
authority to issue it. Proch instead placed his hands on the foyer
wall of his apartment and waited as Collins approached to handcuff
him. Without warning, DeRoche shot Proch in the back with a taser.*fn5
Proch asserts that DeRoche thereby subjected him to excessive
force in violation of the Fourth Amendment and Fla. Stat. § 943.1717.
Proch claims that DeRoche's action caused him to suffer physical
injuries, financial loss, and mental/emotional harm.*fn6
As relief, Proch seeks monetary damages and other remedies
(Doc. 63 at 10--12).
The parties engaged in discovery as instructed in this court's March 11, 2011, Case Management and Scheduling Order (Doc. 51). After resolving several discovery disputes and allowing several extensions of the discovery deadline, the court directed the parties to conclude discovery no later than October 18, 2011 (see Docs. 66--82; 86; 89--93). The clerk docketed Proch's instant motion for summary judgment pursuant to Fed. R. Civ. P. 56 on October 6, 2011 (Doc. 94), and DeRoche timely filed his Rule 56 motion on November 1, 2011 (Doc. 105). The court issued advisement orders concerning summary judgment which provided the parties with information about Rule 56 review (see Docs. 100, 106). The court's Case Management and Scheduling Order also instructed the parties as to the requirements and importance of summary judgment consideration (see Doc. 51 at 3). DeRoche did not file a separate response to Proch's motion but advises that his own motion additionally serves as a response (Doc. 105 at 1, n.1). The court gave Proch through November 22, 2011, in which to file a response to DeRoche's motion (Doc. 106), but he failed to timely do so. Rather, in a motion dated November 30, 2011 [received by the clerk on December 5, 2011], Proch sought leave of court to file out-of-time his twenty-five page typewritten response (accompanied by 130 pages of exhibits) (see Docs. 108, 109). DeRoche has responded, stating that he neither opposes nor supports Proch's request for an enlargement of time in which to file his response (Doc. 111).
The court first court addresses Proch's motion to file his response to DeRoche's motion for summary judgment out-of-time. Proch submits with his motion a declaration in which he states that he did not receive an order from the court directing him to file a response and that he submitted the response as quickly as possible after learning from a staff member in the office of DeRoche's counsel during a November 30, 2011, telephone conversation that the response was late (Doc. 108 at 3). Based on this representation by Proch, the court finds good cause for the late filing. See Fed. R. Civ. P. 6(b)(1)(B). The court also notes the lack of opposition by DeRoche. Proch's motion to file his response out-of-time (Doc. 108) is therefore granted, to the extent Document # 109 shall be considered as Proch's response to DeRoche's motion for summary judgment.*fn7
The court next considers DeRoche's argument that Proch's motion for summary judgment should be denied on the ground it contains no separate statement of facts, a requirement established by this district's local rules and ordered by the court. DeRoche also argues that the motion is deficient because it does not contain adequately specific references to the record evidence.
The pleadings of a pro se party are held to a less stringent standard than is applied to pleadings prepared by an attorney, and they must be construed liberally. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). Nevertheless, a pro se party must follow procedural rules and requirements. See McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993) (while pleadings prepared by prisoners who do not have access to counsel must be construed liberally, the Supreme Court has "never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); see also Nelson v. Barden, 145 Fed. App'x 303, 311 n.10 (11th Cir. 2005) (courts generally will not excuse a pro se party's mistakes regarding procedural rules); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) ("once a pro se litigant is in court, he is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure"). The only leeway the court may grant a pro se party is in liberally construing his pleadings in order to compensate for their inartfulness. See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008); see also Loren v. Sasser, 309 F.3d 1296, 1301 (11th Cir. 2002) (stating that "[i]n the summary-judgment context, we construe pro se pleadings more liberally than those of a represented party").
Here, as DeRoche asserts, Proch's five-page motion for summary judgment (to which are attached some twenty-three pages of exhibits) does not contain a separate statement of undisputed material facts. Nevertheless, the eight-paragraph, five-page motion (although also improperly interlaced with legal arguments and conclusions), does briefly set forth the material facts of Proch's claim: that while Proch stood with his hands on the foyer wall of his apartment in a submissive posture, admittedly having failed to place his hands behind his back as ordered by DeRoche but having displayed no violence or aggression, DeRoche shot him with a taser (see Doc. 94 at ¶¶ 1, 2, 4, and 6). In this court's view, this account or statement by Proch is sufficient to put DeRoche on notice that he must respond or risk having such factual statements deemed to have been admitted, as provided in N.D. Fla. Loc. R. 56.1 ("All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement requirement to be filed and served by the opposing party."). Indeed, DeRoche did adequately respond, in the form of his cross-motion for summary judgment containing a statement of materials facts and a "refu[ation of] each disputed factual allegation . . . ." (Doc. 105 at 7, n.3). Additionally, Proch's motion contains references to the exhibits which, while general, are adequate for locating the pertinent source. For these reasons, the court declines to recommend denial of Proch's summary judgment motion based on the procedural ground suggested by DeRoche.
On cross-motions for summary judgment, the court must construe facts and draw inferences "in favor of the party against whom the motion under consideration is made." Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051 (7th Cir. 2008) (internal quotation marks omitted). The court does so here, referring to the parties' statements of facts (see Doc. 105 at 2--5; Doc. 94 at 1-- 3; Doc. 109 at 3--4), and taking those facts from the parties' pleadings and summary judgment materials of record.*fn8 Fed. R. Civ. P. 56(c); N.D. Fla. Loc. R. 56.1. Nevertheless, the court observes that what are stated as "facts" herein for purposes of summary judgment review may not be the actual facts. See Montoute v. Carr, 114 F.3d 181, 182 (11th Cir. 1997).
The initial sequence of events is not in dispute. At approximately 1:00 p.m., on May 12, 2008, DeRoche and Collins approached and knocked on the front door of the Crestview apartment in which Proch lived with McKinney (Doc. 63 at 5; Doc. 64 at 1). Both officers were dressed in Crestview Police Department uniforms (Doc. 105-5 at 2--3, 7). Shortly prior to going to the Proch/McKinney apartment, Collins had gone to another apartment in the same complex where Rene Stern ("Stern") resided, in response to a call from dispatch regarding a verbal disturbance (Doc 105-1 at 1; Doc. 105-2 at 2).
There is some disagreement between the parties as to the events that occurred just prior to DeRoche's and Collins' arrival at the Proch/McKinney apartment. According to DeRoche, Stern informed Collins that Proch, who was "her girlfriend's boyfriend," had entered her apartment earlier, uninvited (Doc. 105-1 at 2). Proch had become upset with Stern after learning that McKinney had discussed with Stern problems she was having in her relationship with Proch. Angry and cursing at Stern, Proch threw Stern's cell phone, valued at $200.00, against a door, causing it to shatter into "many pieces" (Doc. 105-3 at 2--3; Doc. 105-2 at 2; Doc. 105-4 at 1). Proch denies that the cell phone belonged to Stern or that he entered her apartment without permission (Doc. 105-5 at 2, 7); rather, he maintains that the phone in fact was his and merely on loan to Stern and that he, Stern, and McKinney "regularly entered each others['] apartments without knocking or requesting admittance verbally" as was their "custom as friends" (id.; Doc. 94 at 15; Doc. 109 at 3). Proch also asserts that he did not threaten Stern (Doc. 109 at 3, citing Exhs. 1, 6).
Based on Stern's statements to her, Collins believed that Proch had
committed criminal acts (Doc. 105-3 at 3). Collins therefore prepared
an affidavit of complaint for Stern to complete and sign. The
information alleged by Proch-that he owned the cell phone and had a
standing invitation to enter Stern's apartment-was not the information
Stern relayed in the affidavit she signed (see Doc. 109-1 at 22, Exh.
6). As the affidavit was being processed, DeRoche arrived at Stern's
apartment (Doc. 105-3 at 3). After confirming Stern's statements with
her and collecting pieces of the broken cell phone as evidence,
DeRoche-along with Collins-proceeded to the Proch/McKinney residence
(to which Stern thought Proch had returned after the incident) with
the intention of arresting Proch for burglary and criminal mischief
(Doc. 105-2 at 2). At DeRoche's knock, McKinney opened the front door
of the apartment. DeRoche asked McKinney whether
"Tray"-which is Proch's nickname-was there (Doc. 63 at 5),*fn9
and Proch came forward (id.; Doc. 105-2 at 2). According to
DeRoche, Proch stepped outside the apartment at that time and stood
next to the doorway (Doc. 105-2 at 3). Proch disputes DeRoche's
assertion that he exited the apartment; rather, Proch contends that in
approaching DeRoche he stayed inside the foyer of the apartment and
did not cross the threshold of the doorway (Doc. 63 at 5). Proch began
to light a cigarette but was immediately ordered to stop doing so (id.
at 5--6). According to Proch, he could not "fathom why [his] liberty
was being restrained" (id. at 6), but the parties agree that he
quickly complied with the order.
DeRoche and Proch disagree sharply as to what occurred next. According to DeRoche, he explained to Proch the contents of Stern's affidavit (Doc. 105-3 at 3). DeRoche contends that he directed Proch to turn around and place his hands behind his back (id.; Doc. 105-2 at 3). When Proch failed to comply, DeRoche grasped Proch's left wrist to place him into handcuffs (Doc. 105-2 at 3; Doc. 105-4 at 3). Proch pulled away from DeRoche and retreated into the apartment (Doc. 105-2 at 3; Doc. 105-4 at 3). As Proch entered the apartment, DeRoche drew his taser, and Proch stopped (Doc. 105-2 at 3). DeRoche again ordered Proch to place his hands behind his back, but instead Proch turned and placed his hands on the nearby foyer wall. Proch continued to refuse to comply with DeRoche's command to place his hands behind his back (id.). As DeRoche recalls, Proch began to remove and then replace his hands on the wall, all the while moving toward the interior of the apartment (id.). In her affidavit, Collins remembers that after Proch failed to comply with the repeated command to place his hands behind his back, Proch "began to slide his hands along the wall in the direction of the inside of the apartment" Doc. 105-3 at 3--4). In her report, Collins also states that after initially placing his hands on the foyer wall, Proch "pulled his hands from the wall about 4", but never put them behind his back" (Doc. 105-1 at 2). According to DeRoche, "[b]elieving that Proch had no intention of complying with my commands, and fearful that he may flee or that there may be weapons in the apartment [ ] which Proch could use to attack myself or others, I deployed the Taser" (Doc. 105-2 at 3). DeRoche fired the taser one time, releasing two probes that struck Proch in the left side/shoulder area (Doc. 105-4 at 3; Doc. 105-3 at 4).
Proch's version of these events is markedly different. He asserts that after he extinguished his cigarette DeRoche immediately, with no introduction or explanation of any sort and without telling Proch he was under arrest, "aggressively" ordered Proch to turn around and place his hands behind his back (Doc. 63 at 6; Doc. 109-1 at 18--19). Unconvinced of the officers' "authenticity of authority," Proch-who maintains he was within the apartment at that time-decided to turn around and place his hands on the foyer wall just inside the door (id.). Proch states that this action was meant to convey his "lack of intention to cause [the officers] any harm or trouble. I did, as any reasonable, free citizen would expect, some sort of explanation prior to being placed in restraints, though" (id.). Proch states that immediately upon placing his hands on the wall in what he describes as a "submissive" position, DeRoche forcefully pushed the door fully open, slamming McKinney into the wall, and unholstered and pointed a weapon at him*fn10 (id. at 7). DeRoche screamed at Proch to put his hands behind his back but Proch did not. According to Proch, his hands remained on the wall until the moment DeRoche deployed the taser (Doc. 109-1 at 19). Moreover, Proch contends, prior to the discharge of the taser, he and DeRoche had no physical contact, i.e., DeRoche did not grasp his wrist (Doc. 109 at 3; see Doc. 109-1 at 19). Proch also denies that he began to slide his hands along the foyer wall in the direction of the center of the apartment (Doc. 105-5 at 4, 9). Proch maintains that as these events unfolded-with DeRoche, Collins, Proch, and McKinney all standing within "the close confines of the foyer" (Doc. 63 at 7)-McKinney and Proch repeatedly asked the officers what was going on. More specifically, Proch asserts that, frightened and with his hands still on the wall, he pleaded, "'I'm in my own home and I've done nothing wrong. Please, tell me what's going on.'" (Id.). The officers did not respond. Proch asserts that DeRoche did not warn him that his noncompliance with the order to place his hands behind his back could result in a taser deployment. Proch states that although he did not place his hands behind him as commanded he "fully intended to comply" with the handcuffing, had ceased pleading for information, had not been violent, and had not attempted to flee (id. at 8--9; Doc. 109 at 4; Doc. 109-1 at 19). Collins told DeRoche to cover her while she handcuffed Proch. According to Proch, as Collins approached to handcuff him, with Proch displaying no aggression and his hands located on the foyer wall, DeRoche deployed the taser, shooting Proch in the back (id. at 8).
DeRoche outlines some additional events not mentioned by Proch in his complaints but which Proch acknowledges, although disagrees with at least in part, in his response to the motion for summary judgment. As DeRoche describes it, when Proch was struck by the taser probes, he momentarily fell but immediately rose to his knees, and then to his feet and charged toward DeRoche, pushing past Collins (id.; Doc. 105-4 at 3). Collins recalled that Proch did not fall to the floor but rather went down in a "crouching" position, rising immediately and was "like a lion" (Doc. 105-3 at 4). According to Collins, Proch slammed her into the foyer wall as he ran by her (id.). Proch and DeRoche struggled for possession of the taser, with Proch ultimately grabbing it and fleeing the residence (Doc. 105-2 at 3). As he fled, Proch threw the taser against an outside wall or to the ground, breaking it into pieces; he continued running through the complex parking lot and ultimately off the premises (id.; Doc. 105-3 at 4). DeRoche pursued Proch on foot but was unsuccessful in apprehending him (Doc. 105-4 at 3). Four days later, on May 16, 2008, after a manhunt that included the use of a helicopter and K-9 trackers, Crestview Police Department officers, assisted by the Walton County Sheriff's Office, located Proch in a wooded area and arrested him (see Doc. 105-7 at 1--4).
In response, Proch contends that he in fact fell to the floor after DeRoche tased him and was more than just briefly stunned (Doc. 105-5 at 4, 9). Proch submits that he was subjected to "the worst pain" he has ever felt; moreover, as a result of the experience, he now suffers from post-traumatic stress disorder (Doc. 109 at 4; Doc. 109-1 at 20). In his second amended complaint Proch alleges that subsequent to his arrest, he was charged with numerous felony offenses and incarcerated for six months as he awaited disposition of the charges (Doc. 63 at 10). Ultimately, according to Proch's allegation in the second amended complaint, he entered a plea to misdemeanor trespass (with the other charges pertaining to his encounter with DeRoche being dismissed), was sentenced to time served on that charge, and released from confinement (id.).*fn11