Bumpass v. Birkhead

Decision Date28 February 2022
Docket Number1:21CV394
PartiesHERMENA MILES BUMPASS, as Administratrix of the Estate of J'Mauri Jysha Bumpass and in her individual capacity, et al., Plaintiffs, v. CLARENCE F. BIRKHEAD, in his Individual and official capacity as Sheriff of Durham County, et al., Defendants.
CourtU.S. District Court — Middle District of North Carolina

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Joe L Webster United States Magistrate Judge

J'Mauri Jysha Bumpass ("Bumpass") died from a fatal gunshot wound to his head after he was pulled over by a Durham County Sheriffs deputy and trainee. Bumpass' parents ("Plaintiffs") bring this action against Durham County Sheriff Clarence F. Birkhead ("Defendant Birkhead"), Durham County, five Durham County Sheriffs deputies—Anthony L Sharp, Jr ("Defendant Sharp"), Robert W. Osborne, III ("Defendant Osborne")[1], Brent Crider ("Defendant Crider"), Bryce D. Meyers ("Defendant Meyers"), Jimmy D. Butler ("Defendant Butler")—and Travelers Casualty and Surety Company of America ("Travelers"), the surety on the Durham County Sheriffs official bond (collectively "Defendants"). (See generally Amended Complaint, Docket Entry 18.) This matter is before the Court upon two motions: (1) Defendants' Motion to Dismiss the Amended Complaint pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure for lack of jurisdiction and for failure to state a claim upon which relief can be granted (Docket Entry 30); and (2) Defendants' Motion to Strike several paragraphs from Plaintiffs' Amended Complaint pursuant Rule 12(f) on grounds that they are immaterial impertinent, and inflammatory and/or scandalous in nature (Docket Entry 32). These matters are ripe for consideration. For the reasons stated below, the undersigned recommends that Defendants' motion to strike be granted in part and denied in part and that Defendants' motion to dismiss be granted in part and denied in part.

I. BACKGROUND

The following allegations are set forth in the Amended Complaint. On the morning of December 15, 2019, at or about 12:39 a.m., Bumpass, an African American eighteen-year-old man, was pulled over by Defendants Sharp and Osborne. (Am. Compl. ¶¶ 1, 87.) Only Defendants Sharp and Osborne along with Bumpass were present at the traffic stop. (Id. ¶ 2.) At the time of the stop, Defendant Osborne reported the stop as a suspicious vehicle. (Id. ¶ 96.) Bumpass was on the phone with a friend during the traffic stop. (Id. ¶ 88.) As he was pulled over, Bumpass told his friend that "something didn't feel right." (Id.) Through the phone, Bumpass' friend heard Bumpass interact with Defendants Sharp and Osborne. (Id. ¶ 89.) "Bumpass' friend heard Defendants Sharp and Osborne speak to [ ] Bumpass, heard a gunshot, heard the car crash, and then heard either Defendant Sharp or Osborne tell the other deputy: 'Oh shit, he was on the phone.'" (Id.) Plaintiffs allege that during this time, either Defendant Sharp or Defendant Osborne "intentionally put a gun to [ ] Bumpass' head and then . . . pulled the trigger while the other provided cover." (Id. ¶ 270.) "By Defendants Sharp's and Osborne's own statements, there was no justification whatsoever for Defendants Sharp and Osborne to use deadly force against [] Bumpass." (Id. ¶ 273.)

At the scene, Defendants Sharp and Osborne reported "shots fired" to Durham Communications, called for backup, and Defendant Sharp specifically requested that only Defendant Crider report to the scene as backup. (Id. ¶¶ 90, 92.) Defendants Sharp and Osborne claimed they did not approach Bumpass' vehicle until after backup units arrived. (Id. ¶ 93). When backup arrived, Bumpass was found in his vehicle "with a backpack covering [his] head [and] concealing his injury." (Id. ¶109.) Immediately before emergency medical services ("EMS") arrived, Defendant Meyers told Defendant Sharp that Bumpass "was moving inside the wrecked car." (Id. ¶ 105.) According to EMS, when they arrived on the scene a sheriffs deputy told EMS that "there was a possible DOA inside the vehicle with a possible [gunshot wound] to the head . . . [and] a firearm was visible under [Bumpass'] leg . . . ." (Id. ¶¶ 103-04.) Plaintiffs allege that based on Defendant Sharp's representations that the vehicle occupant was a possible "DOA" or "armed and dangerous," there was no urgency in removing Bumpass from the car to render medical aid. (Id. ¶ 105.)

Despite such, Bumpass was found alive in the vehicle, removed from the vehicle, and transported to the hospital where he later died from his injuries. (Id. ¶¶ 106, 120-22.) The medical examiner later found that Bumpass died of a "contact gunshot wound to the head, a bullet having entered the right side of his skull and exited the left side" (id. ¶ 123) and reported that Bumpass's death was "consistent with suicide," which Plaintiffs assert was based on Defendants' rendition of the incident (id. ¶ 200). Bumpass had no history of depression or other mental health issues, violence, or drug or alcohol dependence, (id. ¶ 77) and did not have any warrants for his arrest, contraband on his person or in his car, or drugs or alcohol in his system (id. ¶ 77).

During the investigation of the scene, Defendant Osborne removed a gun from Bumpass' vehicle when EMS removed Bumpass from the vehicle. (Id. ¶ 106.) Law enforcement officers reported that they were only able to locate one shell casing from the scene, a .380 shell casing found in Bumpass' vehicle. (Id. ¶¶ 143-44.) Defendant Birkhead reported that law enforcement later found a 9-millimeter shell casing in a bag of trash swept up by the tow truck driver who arrived at the scene hours after the shooting. (Id. ¶ 145.) The State Crime Lab reported that the 9-millimeter shell casing found at the scene had been fired from the gun that Defendants claimed was found in Bumpass' vehicle. (Id. ¶ 146.) Defendants Sharp and Osborne maintained that they did not fire shots at the scene. (Id. ¶¶ 116-17.)

Plaintiffs allege that Defendants Sharp and Osborne provided inconsistent statements regarding the reason for the traffic stop (id. ¶¶ 96-97, 99-100, 125) and the events occurring during the stop (id. ¶¶ 109, 113, 115, 117, 126-27). When investigator Ryan Lounsberry responded to the scene of the incident, he told Defendant Butler that the investigation "needed to be handled by the [State Bureau of Investigation]" and "asked Defendant Buder to call the [State Bureau of Investigation] to the scene." (Id. ¶ 204.) Defendant Buder responded "no." (Id.)

Plaintiffs also allege that Defendants violated Durham County Sheriffs Office policy in their investigation into Bumpass' death. First, Defendants Sharp and Osborne tampered with Defendant Sharp's in-car camera system such that the footage of the traffic stop could not be retrieved. (Id. ¶¶ 155-174, 282.) Although policy requires deputies to keep their microphones on when the MVR system is activated, Defendants Crider and Meyers "both manually muted the wireless microphones to their in-car recording system when speaking with Defendant Sharp or with Defendant Osborne about what had just occurred." (Id. ¶¶ 186-87.) In addition, Defendant Meyers allowed Defendant Osborne to leave the crime scene and put gloves on before a gunshot residue test could be performed on his hands. (Id. ¶ 152.) The gunshot residue tests of Defendant Sharp and Defendant Osborne were inconclusive. (Id. ¶ 153.) Moreover, the gunshot residue test conducted on Bumpass' hands was never analyzed. (Id ¶154.)

In addition to the alleged inconsistencies at the scene of the investigation, Plaintiffs allege that Defendant Birkhead created a false and misleading record of events through press releases (id. ¶ 194-97), his communications with the State Bureau of Investigation (id. ¶¶ 208-10), his misrepresentations to Plaintiffs (id. ¶¶ 245, 253-261), and false statements made in court (id. ¶¶224-232).

Plaintiffs allege that Defendant Sharp has a history with the Bumpass family. Defendant Sharp had previously pointed his gun at one of J'Mauri Bumpass' distant cousins with the surname Bumpass and told him, "The Bumpasses — y'all have a drug ring going on. I'm fixing to bring you motherfuckers down." (Id. ¶ 69.) Further, "when Defendants Sharp and Osborne pulled J'Mauri Bumpass over, Defendant Sharp was scheduled to testify at a suppression hearing [the next week] in the criminal case of State v. Timothy Bumpass," another distant cousin of J'Mauri Bumpass. (Id. ¶¶ 67, 69.) At the scheduled hearing, "Timothy Bumpass, Sr. was challenging the legality of [a] traffic stop conducted by Defendant Sharp." (Id.)

Based on the actions of Defendants, Plaintiffs assert eight claims: (1) a claim of excessive force in violation of the Fourth Amendment against Defendants Sharp and Osborne; (2) a claim regarding the cover up of the use of excessive force in violation of the Fourteenth Amendment against Defendants Birkhead, Sharp, Osborne, Odder, Meyers, and Butier; (3) a claim against Defendants Birkhead and Durham County for executing a policy of covering up the use of excessive force by Defendants Sharp and Osborne; (4) a claim against Defendants Birkhead and Durham County for approving, ratifying and Defendant Birkhead's personal participation in a policy of covering up the use of excessive force by sheriff deputies; (5) a wrongful death claim against Defendants Sharp and Osborne; (6) a common law obstruction of justice claim against Defendants Birkhead, Sharp, Osborne, Crider, Meyers, and Butier; (7) a claim for reckless infliction of emotional distress against Defendants Birkhead, Sharp, Osborne, Crider, Meyers, and Butier; and (8) and action on official bond against Defendants Birkhead and Travelers. (Id. ¶¶ 264-330.)

Plaintiffs initiated this action on May 18, 2021. (Docket...

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