Ellinger v. Napier

• Decision Date: 10 April 2023
• Docket Number: 6:22-CV-19
• Parties: GREGORY SCOTT ELLINGER, Plaintiff, v. DEPUTY SHERIFF ERIN NAPIER, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

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GREGORY SCOTT ELLINGER, Plaintiff, v. DEPUTY SHERIFF ERIN NAPIER, et al., Defendants.

No. 6:22-CV-19

United States District Court, W.D. Virginia, Lynchburg Division

April 10, 2023

MEMORANDUM OPINION

NORMAN K. MOON, UNITED STATES DISTRICT JUDGE.

This case comes before the Court on cross-motions for summary judgment, Dkts. 24, 26. plaintiff brings a due process claim gross negligence claim, and vicarious liability claim plaintiff's motion for summary judgment will be denied and Defendants' motion for summary judgment will be granted because (1) plaintiff fails to establish a due process claim; (2) there is no cognizable state law claim underlying the gross negligence claim; and (3) without underlying tortious conduct by Defendant Deputy Napier, there is no action for which Defendant Sheriff Viar can be held vicariously liable.

Background

Defendant Erin Napier, while an Amherst County Deputy Sheriff, stopped plaintiff Gregory Ellinger on August 7, 2020 because he was driving with a broken taillight. Dkt. 25 (Ex. 1) at 9 (Napier Dep.). Deputy Joseph H. Napier was also involved in the incident. Dkt. 27 (Ex. A) (Napier Decl.). There was no summons issued for a broken taillight. Dkt. 25 (Ex. 1) at 9. And Defendant Napier knew Ellinger from an arrest in 2018. Id. at 8. Defendant Napier requested consent to search Ellinger's truck, which Ellinger provided. Id. at 10. Defendant uncovered “a little antique” gun under the driver's seat during his search. Id.; Dkt. 25 (Ex. 2) at 14:23-24 (Body Camera Video). Ellinger denied being aware of the pistol. Id. at 12:25-13:19 (“I did not know it was in there.... See I'm bear hunting, and uh, so . . .”). He acknowledged he had a prior non-violent felony conviction and he elaborated that he was not on probation and almost had his gun rights back. Id. at 13:19-33. Defendant Napier had already found a marijuana pipe in the car, and after Ellinger told her that he did not have the gun purposefully, Defendant Napier accused Ellinger of lying to her about having a marijuana pipe in his car. Id. at 13:36-52 (“So you were just so high that you forgot you had a pipe in there, too? So you lied to me about that.”).

Defendant Napier filed an incident report stating that Ellinger “forgot [the pistol] was in there” and that he “takes the pistol with him while he's bear hunting for protection.” Dkt. 25 (Ex. 3) at 2. Ellinger was charged with possession of a weapon within 10 years of a non-violent felony in violation of Virginia Code § 18.2-308.2. Dkt. 25 (Ex. 4) at 11 (Carwile Dep.). Defendant Napier's report was “not intended to serve as a verbatim transcript of the event.” Dkt. 27 (Ex. A) ¶ 5 (Napier Decl.).^[1]

Assistant Commonwealth Attorney Carwile, who prosecuted Ellinger, relied on Defendant Napier's incident report and did not interview her prior to trial. Id. at 7. But he also confirmed that he would not typically meet with the arresting officer for this kind of case, and he understood her incident report to be a summary of the event based on her memory, rather than a verbatim report. Dkt. 27 (Ex. D) at 7:5-16, 17:20-18:3. Judge Michael Garrett of the Amherst County Circuit Court found Ellinger guilty of the charged offense. Dkt. 25 (Ex. 5) at 45:21-25; 47:5-49:21 (finding that Ellinger knew the pistol was operable based on his statement in the incident report and that he “basically admit[ed] possession of the firearm,” based on the incident report statements).

Assistant Commonwealth Attorney Carwile has explained that (1) he may have been “peripherally” aware that body camera footage existed, (2) that video was not in the file he provided to Ellinger's initial defense counsel as discovery, (3) a defense attorney could have asked for the video, and (4) Carwile would have made it available if asked. Dkt. 25 (Ex. 4) at 7:19-21 (Carwile Dep.); Dkt. 27 (Ex. D) at 7:19-25, 8:1-4, 15:10-13 (Carwile Dep.).^[2] Ellinger's court-appointed attorney, Michael Lovell, confirmed that the Commonwealth Attorney's Office had an open file policy, and the practice for obtaining exculpatory evidence was to communicate directly with the prosecutor's office rather than with law enforcement. Dkt. 27 (Ex. E) at 7:4-10, 11:7-13, 19:5-10 (Lovell Dep.).^[3]

Further, Michael G. Weigland, Jr., the IT administrator responsible for the body worn camera and dash camera systems for the Amherst County Sheriff's Office, has confirmed the following: Joseph Napier's camera footage of the incident was uploaded on August 8, 2020. Dkt. 27 (Ex. B) ¶ 4 (Weigland Decl.). Erin Napier's footage was uploaded October 1, 2020. Id. The Amherst County Commonwealth's Attorney had immediate access to this footage once uploaded. Id. ¶ 2. And deputies did not have the ability or authority to delete the footage or deny or alter the Commonwealth Attorney's Office's access to it. Id. ¶ 3.

Ellinger hired new counsel, Aaron Peake, before his sentencing, and Peake sought, received, and viewed the body camera footage. Dkt. 25 (Ex. 4) at 15 (Carwile Dep.). Peake moved for a new trial, and after Judge Garrett reviewed the body camera footage, he vacated the conviction. Id. at 10:14-18 (“Judge Garrett basically said that he had hung his hat on . . . when Ellinger said I forgot and that it was different than if Ellinger was saying I didn't know. But he also said that it was close enough that he could understand why Officer Napier would remember it that way.”).

Defendant Napier has since acknowledged after viewing the video that Ellinger never admitted to knowing the gun was in the vehicle, “but the totality of the events and what was spoken . . . infers that he had knowledge of the weapon is where [her] memory went while [she] was writing this incident report.” Dkt. 25 (Ex. 1) at 17:8-16 (Napier Dep.). She has explained that when writing her report she “inferred” that Ellinger used the gun for protection, based on his comments about bear hunting, and in her deposition she maintained that he said he uses the gun to go bear hunting. Id. at 15:9-16:3 (“The difference was that I had noted in my report from my memory that he goes bear hunting and uses it for protection. So I have - when I was writing the report, I inferred that he was using it for protection. And then when I viewed the body camera footage yesterday, he had said that he uses it to go bear hunting.”).

Standard of Review

Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if a reasonable [fact finder] could return a verdict for the nonmoving party,” and “[a] fact is material if it might affect the outcome of the suit under the governing law.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018).

The moving party bears the burden of establishing that summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the moving party meets this burden, the nonmoving party must set forth specific, admissible facts to demonstrate a genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-movant may not rest on allegations in the pleadings; rather, it must present sufficient evidence such that a reasonable fact finder could find by a preponderance of the evidence for the non-movant. See Celotex Corp., 477 U.S. at 322-24; Sylvia Dev. Corp. v. Calvert Cnty, Md., 48 F.3d 810, 818 (4th Cir. 1995). The district court must “view the evidence in the light most favorable to the nonmoving party” and “refrain from weighing the evidence or making credibility determinations.” Variety Stores, Inc., 888 F.3d at 659.

When cross-motions for summary judgment are before a court, a court must “consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Defs. of Wildlife v. N.C. DOT, 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir. 2007) (internal quotation marks omitted)).

Analysis

A. Evidence Does Not Support That Defendant Napier Violated Plaintiff's Due Process Rights

Law enforcement officers can violate a defendant's due process rights by withholding exculpatory material, but Defendant Napier did not do so. Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (“[A] police officer violates a criminal defendant's constitutional rights by withholding exculpatory evidence from prosecutors.”). There is no evidence that Defendant Napier withheld exculpatory evidence. The Assistant Commonwealth's Attorney, the IT administrator responsible for body camera and dash camera systems, and Ellinger's initial defense attorney admitted as much. Erin Napier's body camera footage was uploaded on October 1, 2020, four months before Ellinger's trial, which began February 3, 2021, and Joe Napier's footage had been uploaded on August 8, 2020. Dkt. 27 (Ex. B) ¶ 4 (Weigland Decl.). The prosecutor's office had an open file policy. Dkt. 27 (Ex. C) at 5:14 (Carwile Dep.); Dkt. 27 (Ex. E) at 7:4-10, 11:7-13, 19:5-10 (Lovell Dep.). And the Supreme Court has held that when a prosecutor maintains an open file policy “defense counsel may reasonably rely on that file to contain all materials the State is constitutionally obligated to disclose under Brady.” Strickler v. Greene, 527 U.S. 263, 283 n.23 (1999) (referencing Brady v. Maryland, 373 U.S. 83 (1963)); Long v. Hooks, 972 F.3d 442, 468-69 (4th Cir. 2020).

“To make out a claim that [a law enforcement officer] violated his constitutional rights by suppressing exculpatory evidence, [a plaintiff] must allege, and ultimately prove that (1) the evidence at issue was favorable to...