Russ v. Causey

• Decision Date: 05 August 2010
• Docket Number: No. 7:09-CV-17-FL,7:09-CV-17-FL
• Citation: 732 F.Supp.2d 589
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Peggy RUSS and Taffy Gause, Plaintiffs, v. Sid CAUSEY, in his individual and official capacity as Sheriff of New Hanover County; Ed McMahon, in his individual and official capacity as Chief Deputy Sheriff of Hanover County; Lachlan MacNeish, in his individual and official capacity as Deputy Sheriff of New Hanover County; Doug Price, in his individual and official capacity as Deputy Sheriff of New Hanover County; Eric Brown, in his individual and official capacity as Deputy Sheriff of New Hanover County; B. Matt Jordan, in his individual and official capacity as Deputy Sheriff of New Hanover County; and Ohio Casualty Insurance Company, Defendants.

732 F.Supp.2d 589

Peggy RUSS and Taffy Gause, Plaintiffs,
v.
Sid CAUSEY, in his individual and official capacity as Sheriff of New Hanover County; Ed McMahon, in his individual and official capacity as Chief Deputy Sheriff of Hanover County; Lachlan MacNeish, in his individual and official capacity as Deputy Sheriff of New Hanover County; Doug Price, in his individual and official capacity as Deputy Sheriff of New Hanover County; Eric Brown, in his individual and official capacity as Deputy Sheriff of New Hanover County; B. Matt Jordan, in his individual and official capacity as Deputy Sheriff of New Hanover County; and Ohio Casualty Insurance Company, Defendants.

No. 7:09-CV-17-FL.

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

Aug. 5, 2010.

732 F.Supp.2d 596

Gary K. Shipman, Matthew W. Buckmiller, Shipman & Associates, LLP, Wilmington, NC, for Plaintiffs.

James R. Morgan, Jr., Bradley Owen Wood, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, NC, Julie B. Bradburn, Womble Carlyle Sandridge & Rice, PLLC, Raleigh, NC, for Defendants.

ORDER

LOUISE W. FLANAGAN, Chief Judge.

This matter comes before the court on defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (DE # 52). Plaintiffs have responded, and defendants have replied. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court grants in part and denies in part defendants' motion for summary judgment.¹

STATEMENT OF THE CASE

Plaintiffs Russ and Gause are the widow and the daughter, respectively, of Mr.

732 F.Supp.2d 597

Gladwyn T. Russ, Jr. Defendants are the former Sheriff of New Hanover County and a number of his deputies who allegedly acted inappropriately in planning and effectuating the arrest of Mr. Gladwyn T. Russ, III ("Mr. Russ" or "GT Russ") during decedent's funeral.² Mr. Russ is the son of plaintiff Russ and decedent, and the brother of plaintiff Gause. He is not a party to this action.

In their amended complaint, filed October 1, 2009, plaintiffs assert a number of claims for relief against defendants premised on defendants' conduct during the arrest of Mr. Russ. Specifically, plaintiffs allege: (1) deprivation of their constitutional right to privacy in violation of 42 U.S.C. § 1983; (2) assault; (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress; (5) invasion of privacy; and (6) negligence.³ The assault claim is asserted only against defendant Jordan; the other claims are asserted against all defendants. Plaintiffs seek compensatory and punitive damages, attorneys' fees, and costs.

Defendants generally deny the allegations in the amended complaint and assert a number of affirmative defenses. On March 18, 2010, defendants moved for summary judgment on all of plaintiffs' claims. Defendants contend that plaintiffs' claims fail as a matter of law in light of the undisputed facts underlying those claims, and also assert immunity from suit in both their individual and official capacities. In support of their motion, defendants rely on a number of depositions and declarations of both parties and non-party witnesses. Plaintiffs responded in opposition on April 8, 2010, also relying on a number of depositions and affidavits, as well as other materials. Defendants replied on April 19, 2010.

STATEMENT OF THE UNDISPUTED FACTS

The undisputed facts, viewed in the light most favorable to plaintiffs, are as follows. On August 6, 2008, Glenda Sellars ("Ms. Sellars") swore out a criminal complaint against Mr. Russ, her husband, alleging that he had threatened to kill her the day before. (Pellom Decl. ¶ 3 & Ex. A; GT Russ Aff. ¶ 3.) Upon a finding that probable cause existed to believe the Mr. Russ had communicated a threat against Ms. Sellars in violation of N.C. Gen.Stat. § 14-277.1, New Hanover County Magistrate George Pellom issued a warrant for his arrest. (Pellom Decl. ¶ 4 & Ex. A.) The arrest warrant was received by the New Hanover County Sheriff's Office ("the Sheriff's Office") on August 7, 2008. (Gonzalez Decl. ¶ 4.)

Between August 8 and November 8, 2008, deputies from the Sheriff's Office attempted to serve the arrest warrant on Mr. Russ on at least ten occasions at his mobile home located behind his parents' house at 1304 Burnett Road in Wilmington, at his parents' house at that address, and at Ms. Sellars' given address. (Gonzalez Decl. ¶¶ 4-13 & Ex. B; Jordan Decl. ¶ 5; Jordan Dep. 11:2-12:2, 12:20-13:5.) On each of these occasions, the deputies were unable to locate Mr. Russ or otherwise serve the warrant. (Gonzalez Decl. ¶¶ 4-13 & Ex. B; Price Decl. ¶ 6). Plaintiff Russ witnessed three of these attempts, and informed one of the deputies that Mr. Russ and Ms. Sellars had reconciled and were in Tennessee, and that Ms. Sellars wanted to withdraw her complaint

732 F.Supp.2d 598

and drop the charges against Mr. Russ. (Peggy Russ Dep. 30:12-31:10, 40:9-16, 42:1-23.)

On November 1, 2008, Mr. Russ returned from Tennessee to be with his father, whose health was in decline. (GT Russ Aff. ¶ 11; Peggy Russ Dep. 12:22-23, 14:1-6.) Upon his return, he did not attempt to surrender or turn himself in, nor did plaintiff Russ inform anyone from the Sheriff's Office that Mr. Russ was back in town. (Peggy Russ Dep. 50:5-14, 51:3-7.) Plaintiffs and Mr. Russ appeared to believe-incorrectly-that Ms. Sellars had withdrawn the criminal complaint against Mr. Russ, and were otherwise preoccupied with the failing health of Mr. Russ's father. (GT Russ Aff. ¶ 7; Peggy Russ Dep. 50:15-20, 51:6-16.)

On November 8, 2008, the Sheriff's Office responded to a 911 call from Mr. Russ's son, who stated that his father had slashed the tires and smashed the windows of his car, and locked himself inside the house of plaintiff Russ. (Gonzalez Decl. ¶ 14; GT Russ Aff. ¶ 11.) Deputy Gonzalez, who had previously attempted to serve the arrest warrant on Mr. Russ on a number of occasions, was the first to arrive on the scene. (Gonzalez Decl. ¶ 15.) He verified the property damage and hoped to be able to serve the arrest warrant on Mr. Russ. ( Id.) Mr. Russ's son advised Deputy Gonzalez that Mr. Russ was alone in the house and that he had access to firearms. ( Id. at ¶ 16.) Deputy Gonzalez then radioed for backup. ( Id.)

After backup arrived, Deputy Gonzalez knocked on the door of the house and demanded that Mr. Russ surrender to him, but Mr. Russ refused to do so. (Gonzalez Decl. ¶ 18-19.) Plaintiff Gause arrived on the scene and spoke with Deputy Gonzalez, who told her that he was attempting to serve an arrest warrant on Mr. Russ. (Gonzalez Decl. ¶ 20; Gause Dep. 44:8-24, 45:8-9.) Deputy Gonzalez requested that plaintiff Gause talk to plaintiff Russ, who was at the hospital with her ailing husband, to give the Sheriffs Office permission to enter her house and arrest Mr. Russ. (Gonzalez Decl. ¶ 20; Gause Dep. 45:1-7, 48:9-49:4.)

More deputies arrived and formed a perimeter around the house. (Gonzalez Decl. ¶ 21; Price Decl. ¶¶ 7-8.) Plaintiffs returned to the scene, but were directed to stay away from the house. (Gonzalez Decl. ¶ 22; Peggy Russ Dep. 51:25-52:11; Gause Dep. 50:9-51:16.) Plaintiff Russ then gave the deputies from the Sheriff's Office the keys to her house so that they could enter and arrest Mr. Russ. (Peggy Russ Dep. 52:9-11, 56:14-16; Gause Dep. 51:17-24, 52:11-17.) The deputies declined to enter the house, however, believing that it would be dangerous to do so where Mr. Russ was thought to be armed. (Price Decl. ¶¶ 8-10; McMahon Decl. ¶¶ 5-6, 10.)

When defendant McMahon arrived on the scene, he spoke with Mr. Russ over the telephone. (McMahon Dep. 22:17-23:12; McMahon Decl. ¶ 8.) Mr. Russ informed defendant McMahon that he had recently returned to Wilmington to be with his father during surgery to be performed on November 10, 2008. (McMahon Decl. P; GT Russ Aff. ¶ 11.) Defendant McMahon verified this with plaintiffs and other family members at the scene, who also informed him that Ms. Sellars was not in North Carolina at the time. (McMahon Decl. ¶ 9.) Mr. Russ agreed to turn himself in following his father's surgery, and plaintiffs agreed to do everything in their power to ensure that Mr. Russ turned himself in as promised. (McMahon Decl. ¶¶ 8-10; GT Russ Aff. ¶ 12; Peggy Russ Dep. 57:2-13; Gause Dep. 55:17-25.) The deputies left the scene, and plaintiffs and Mr. Russ went back to the hospital. (McMahon Decl. ¶ 11; Gause Dep. 57:10-58:24.)

732 F.Supp.2d 599

Mr. Russ did not turn himself in on November 10, 2008. (McMahon Decl. ¶ 12.) On that day, his father took a turn for the worse, dying on November 11, 2008. (Peggy Russ Dep. 44:9-45:17; Peggy Russ Aff. ¶ 2; GT Russ Aff. ¶ 13.) When Deputy Gonzalez later returned to plaintiff Russ's house to serve the outstanding warrant on Mr. Russ, he was informed that Mr. Russ's father had died. (Gonzalez Decl. ¶ 29; Peggy Russ Dep. 45:18-47:5.) On November 12 or November 13, 2008, plaintiff Russ and Mr. Russ spoke with defendant McMahon and notified him that Mr. Russ's father had indeed died and that the family was busy making funeral arrangements. (Peggy Russ Dep. 47:6-48:6; McMahon Decl. ¶ ¶ 14-15.) Defendant McMahon agreed to allow Mr. Russ to turn himself in after his father's funeral.⁴ (Peggy Russ Dep. 48:10-11; GT Russ Aff. ¶¶ 15.)

On November 13, 2008, defendant McMahon and other senior law enforcement officers at the Sheriff's Office, worried that Mr. Russ would not turn himself in but would flee their jurisdiction to evade arrest and possibly harm Ms. Sellars, decided that their best chance to serve the arrest warrant was to do so after the funeral service, which they were confident Mr. Russ would attend. (McMahon Decl. ¶¶ 16-18; Price Decl. ¶ 13.) Defendant McMahon, after speaking with defendant Causey, authorized the arrest of Mr. Russ at some point after the funeral, in a manner to be carried out as discreetly and quickly as possible, but left the details of the arrest...