896 F.Supp.2d 432 (E.D.N.C. 2012), 7:10-CV-14-D, Cooper v. Brunswick County Sheriff's Dept.

Docket Nº:7:10-CV-14-D.
Citation:896 F.Supp.2d 432
Opinion Judge:JAMES C. DEVER, III, Chief Judge.
Party Name:George COOPER, Sr., and George Cooper, Jr., Plaintiffs, v. BRUNSWICK COUNTY SHERIFF'S DEPARTMENT, James Sheehan, Brian Carlisle, Ronald Hewett, David Crocker, Gene Caison, Kevin Holder, and John Ingram, Defendants.
Attorney:Robert Marion Tatum, Laura E. Conner, Tatum & Atkinson, PLLC, Raleigh, NC, for Plaintiffs. Christopher J. Geis, James A. Dean, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, NC, Norwood P. Blanchard, III, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendants.
Case Date:September 27, 2012
Court:United States District Courts, 4th Circuit, Eastern District of North Carolina
 
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Page 432

896 F.Supp.2d 432 (E.D.N.C. 2012)

George COOPER, Sr., and George Cooper, Jr., Plaintiffs,

v.

BRUNSWICK COUNTY SHERIFF'S DEPARTMENT, James Sheehan, Brian Carlisle, Ronald Hewett, David Crocker, Gene Caison, Kevin Holder, and John Ingram, Defendants.

No. 7:10-CV-14-D.

United States District Court, E.D. North Carolina, Southern Division.

September 27, 2012

Page 433

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Robert Marion Tatum, Laura E. Conner, Tatum & Atkinson, PLLC, Raleigh, NC, for Plaintiffs.

Christopher J. Geis, James A. Dean, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, NC, Norwood P. Blanchard, III, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendants.

ORDER

JAMES C. DEVER, III, Chief Judge.

On January 29, 2010, George Cooper, Sr. (" Cooper Sr." ) and George Cooper, Jr. (" Cooper Jr." ) filed a complaint asserting claims under federal and North Carolina law [D.E. 1]. The complaint arises from a shooting that took place in Brunswick County, North Carolina on May 2, 2007, and the events leading to the shooting are hotly contested. Plaintiffs sued the Brunswick County Sheriff's Department (" BCSD" ), as well as several BCSD employees, in their individual and official capacities, including Deputy Sheriff James Sheehan (" Sheehan" ), Deputy Sheriff Brian Carlisle (" Carlisle" ), Sheriff John Ingram (" Ingram" ), Deputy Sheriff David Crocker (" Crocker" ), Deputy Sheriff Gene Caison (" Caison" ), and Deputy Sheriff Kevin Holden (" Holden" ) (collectively, " defendants" ). Plaintiffs also sued, in his official and individual capacities, the former Brunswick County sheriff, Ronald Hewett (" Hewett" ).1 On April 2 and April 6, 2010,

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defendants and Hewett, respectively, filed answers [D.E. 1314].

On July 15, 2010, Cooper Sr. filed a motion for leave to file an amended complaint and a supporting memorandum [D.E. 2425]. On November 3, 2010, the court referred Cooper Sr.'s motion for leave to amend the complaint to Magistrate Judge Daniel for disposition, and referred BCSD's motion to dismiss to Judge Daniel for a memorandum and recommendation (" M & R" ) [D.E. 33]. On February 7, 2011, 2011 WL 738610, Judge Daniel denied Cooper Sr.'s motion without prejudice and recommended that the court grant BCSD's motion to dismiss [D.E. 36]. No party timely objected to the M & R, and on February 23, 2011, 2011 WL 736670, the court adopted Judge Daniel's conclusions and dismissed plaintiffs' claims against BCSD [D.E. 37].

In the M & R, Judge Daniel noted that Cooper Sr. failed to comply with the proper procedure under North Carolina law for his appointment as a guardian to pursue the case on behalf of his son, Cooper Jr. See M & R 34 (collecting cases). Because Cooper Sr. never complied with North Carolina law and was never appointed to represent Cooper Jr. in the case, Cooper Sr. is the sole plaintiff.

On February 1, 2012, defendants filed a motion for summary judgment as to Cooper Sr.'s claims [D.E. 4453]. Hewett also filed a motion for summary judgment as to Cooper Sr.'s claims against him [D.E. 5455]. On March 7, 2012, Cooper Sr. responded in opposition to the motions for summary judgment [D.E. 5860]. Thereafter, defendants and Hewett replied. As explained below, the court grants in part and denies in part summary judgment to defendants on the federal and state claims. Specifically, the court denies summary judgment as to Cooper Sr.'s federal claim against Sheehan and Carlisle under 42 U.S.C. § 1983 and the Fourth Amendment for unreasonable seizure and for some of Cooper Sr.'s state law claims against Sheehan and Carlisle for their use of force against Cooper Sr. The court grants summary judgment to the defendants and Hewett on all other claims.

I.

Cooper Sr. is fifty-seven years old and a resident of Leland, North Carolina. Cooper Dep. [D.E. 47-8-10] 8, 13. Although he worked as a longshoreman, he has been unemployed since 2007. Id. 12-13. In May 2007, Cooper Sr. resided in a mobile home (" Cooper residence" ) located at 2403 Maco Road, Leland. Id. 14-15. Until sometime after May 2007, Cooper Sr.'s son, Cooper Jr., lived with him. Id. 16-17. In May 2007, Cooper Jr. was eight years old. Id. 16.

On May 2, 2007, Cooper Sr. spent most of the day repairing the floor of his aunt's house. Id. 4850; see id., Ex. 9 (" Cooper SBI Statement" ) 1. Cooper Jr. and Cooper Sr.'s cousin, Paul Herring (" Herring" ), assisted Cooper Sr. with this work. Cooper Dep. 48-50. Herring recently had moved to North Carolina from Connecticut. Id. 77. At the end of the day, Herring agreed to join Cooper Sr. and Cooper Jr. for dinner at the Cooper residence and stay the night. Id. 61, 7778. On the way home, Cooper Sr. drove to a friend's residence and purchased some marijuana, id. 6163, and then purchased alcohol at a store. Id. 63-65.

Cooper Sr., Cooper Jr., and Herring arrived at the Cooper residence around 9:00 p.m. Cooper Sr. and Herring stood outside in the yard, drinking alcohol, smoking marijuana, and talking loudly about " [f]ootball games, [and] old fights." Id. 6971, 82. Before smoking the marijuana, Cooper Sr. laced the marijuana cigarette with powder cocaine that he stored in

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his residence. Id. 66, 72, 78. At this time, Cooper Jr. was at the nearby home of Cooper Sr.'s sister. Id. 7071. While outside, Cooper Sr. smoked marijuana, consumed some powder cocaine, and drank three or four beers and a pint of brandy. Id. 7275.

At some point, Cooper Sr. and Herring went inside the residence. Id. 7879. Cooper Sr. went to the kitchen and prepared to grill pork chops and chicken. Id. When Cooper Sr. was in the kitchen, Cooper Jr. came home and went to his bedroom. Id. 7980. Herring sat in the living room. Id. 79.

Around 11:30 p.m., Cooper Sr. heard a " banging on the side of the house." Id. 105; see id. 80, 98. Cooper Sr. thought that a relative was knocking on his window. Id. 83, 86, 116. Cooper Sr. peered out the back door (the Cooper residence's primary entrance), but did not see anyone. Id. 84. Cooper Sr. asked that anyone outside identify himself, but received no response. Id. 83, 97, 117. Cooper Sr. decided to go outside to investigate the noise. See id. 92. Before going outside, Cooper Sr. picked up his twenty-gauge shotgun (" shotgun" ), which was located near the door. See id. 9293. According to Cooper Sr., the shotgun was not loaded. See id. 96, 141.

With the butt of the shotgun in his right hand and the barrel pointing down, Cooper Sr. opened the back door and took two or three steps on to his darkened porch. Id. 10001. The porch is approximately eighteen inches above the ground. Id. 124. Cooper Sr. stood and called out, " Who is it?" Id. 10102. Cooper Sr. heard no response. Id. There were no lights outside the Cooper mobile home, and Cooper Sr. could not see anyone. Id.; see id. 3334. While on the porch, Cooper Sr. held the shotgun in his right hand with the barrel towards the floor and did not raise the shotgun. Id. 103.

The loud noise that Cooper Sr. heard was the sound of Sheehan striking a rear window of the Cooper residence with his flashlight. Sheehan Dep. [D.E. 47-2] 18-19; see Carlisle Dep. [D.E. 47-67] 23. On May 2, 2007, Sheehan and Carlisle were BCSD deputy sheriffs. Sheehan Dep. 13-14; Carlisle Dep. 15-16. Sheehan joined Carlisle in responding to a reported " disturbance" at the Cooper property, and each was in uniform. Sheehan Dep. 17; Carlisle Dep. 20. 2 The 911 dispatcher told Sheehan and Carlisle that it " [s]ounds like two males screaming at each other." Francisco Aff., Ex. 1 (" Dispatcher Recording 2" ). With Carlisle driving a marked patrol car and Sheehan driving an " unmarked black Crown Victoria," the deputies drove to the Cooper property. Sheehan SBI Statement 4; see Carlisle Dep. 21; Sheehan Dep. 17-18.

As Carlisle approached the Cooper property in his cruiser, he " could hear screaming ... coming from this property." Carlisle Dep. 20. Carlisle saw " a black male standing on the back porch [of the Cooper residence] screaming into ... the house" as he drove up. Id. 2122. According to Carlisle, this individual observed the two vehicles before entering the Cooper residence. Id. 22. When Sheehan pulled his vehicle on to the Cooper property, he

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saw " a figure on the back porch get up and go inside the house." Sheehan Dep. 18. Sheehan also heard yelling inside the residence. Id.

Cooper Sr. denied that he saw the deputies arrive and testified that he was in the kitchen. Cooper Dep. 81-82. Both Sheehan and Carlisle agree that their vehicles' blue lights were not activated. See Sheehan Dep., Ex. 1 (" Sheehan SBI Statement" ) 4; Carlisle Dep. 22.

Sheehan and Carlisle parked their vehicles on the grass of the Cooper property, and approached the residence on foot. Sheehan Dep. 18; Carlisle Dep. 22-23. As they approached, Sheehan continued to hear a heated argument, but he could not discern any words. Sheehan Dep. 18. Carlisle also heard " screaming" and " people walking around inside the trailer." Carlisle Dep. 23. To alert the residence's occupants of his and Carlisle's presence, Sheehan " tapp[ed] on the window" with his flashlight. Sheehan Dep. 18-19; see Carlisle Dep. 23-24. But neither Sheehan nor Carlisle called out to identify themselves as sheriffs deputies. See Sheehan Dep. 18-19; Carlisle Dep., Ex. 1 (" Carlisle SBI Statement" ) 3, 7.

According to Sheehan, someone inside the Cooper residence responded to the tap by shouting obscenities. Sheehan Dep. 19. Cooper Sr. denied shouting obscenities, but admitted that he might have uttered obscenities when he first heard the loud noise and, due to the mobile home's thin walls, someone...

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