Wingate v. Byrd

• Decision Date: 30 September 2016
• Docket Number: Civil Action No.: 4:13-3343-BHH
• Parties: Ernestine WINGATE as the Personal Representative of the Estate of Ernest Russell, Plaintiff, v. Wayne BYRD, both individually and in his Official capacity as the Sherriff of Darlington County; Darlington County Sherriff's Office; the County of Darlington; The City of Darlington Police Department; the City of Darlington; Ben Weatherford; Clyde M Shephard; and John Does 1-10, Defendants.
• Court: U.S. District Court — District of South Carolina

211 F.Supp.3d 816

Ernestine WINGATE as the Personal Representative of the Estate of Ernest Russell, Plaintiff,

v.Wayne BYRD, both individually and in his Official capacity as the Sherriff of Darlington County; Darlington County Sherriff's Office; the County of Darlington; The City of Darlington Police Department; the City of Darlington; Ben Weatherford; Clyde M Shephard; and John Does 1-10, Defendants.

Civil Action No.: 4:13-3343-BHH

United States District Court, D. South Carolina, Florence Division.

Signed September 30, 2016

Robert V. Phillips, McGowan Hood and Felder, Rock Hill, SC, Gerald Malloy, Malloy Law Firm, Hartsville, SC, for Plaintiff.

Samuel F. Arthur, III, Aiken Bridges Nunn Elliott and Tyler, Florence, SC, Lisa Arlene Thomas, Thompson and Henry, Conway, SC, Adam Christopher Ness, Allison Dennis Hood Norma A. Turner Jett, Richard B. Ness, Ness and Jett, Bamberg, SC, for Defendants.

ORDER AND OPINION

Bruce Howe Hendricks, United States District Judge

This action arises out of the execution of a search warrant, resulting in the death of Ernest Russell ("Russell"). On October 18, 2013, Plaintiff Ernestine Wingate ("Plaintiff"), as personal representative of the estate of Russell, filed this 42 U.S.C. § 1983 action alleging Defendants violated Russell's Fourth and Fourteenth Amendment rights. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Kaymani D. West, for consideration of pretrial matters. The Magistrate Judge prepared three thorough Report and Recommendations, addressing Defendants' various motions for summary judgment. The first Report and Recommendation, ("Report One"), recommended granting in part and denying in part Defendant Ben Weatherford's ("Weatherford") motion for summary judgment. (ECF No. 116.) Specifically, the Magistrate Judge recommended granting Weatherford summary judgment on Plaintiff's § 1983 claim for Fourth Amendment knock-and-announce violations based on qualified immunity. (Id. at 41.) However, she recommended denying Weatherford summary judgment on Plaintiff's Fourth Amendment cause of action for excessive force and for all remaining causes of action. (Id. at 41–42.) The second Report and Recommendation, ("Report Two"), recommended granting Defendants Wayne Byrd, Darlington County Sherriff's Office, and the County of Darlington's motion for summary judgment and dismissing these Defendants. (ECF No. 118.) The third Report and Recommendation, ("Report Three"), recommended granting Defendants City of Darlington, Darlington Police Department, and Clyde M. Sheppard's motion for summary judgment and dismissing these Defendants. (ECF No. 119.) Defendant Weatherford filed timely objections to Report One (ECF No. 125), and Plaintiff filed timely objections to Reports One and Two (ECF Nos. 124; 126).

For the reasons set forth herein, the Court adopts Report One in part. Specifically, the Court adopts the portion of Report One denying Weatherford summary judgment on Plaintiff's excessive force claims and claims for wrongful death, survivorship, and civil conspiracy, and granting Weatherford summary judgment on Plaintiff's claim for Fourth Amendment knock-and-announce violations. However, the Court modifies Report One by dismissing Plaintiff's § 1983 conspiracy claim against Weatherford. The Court adopts Reports Two and Three and dismisses Defendants Wayne Byrd, Darlington County Sherriff's Office, County of Darlington, City of Darlington, Darlington Police Department, and Clyde M. Sheppard from this action.

BACKGROUND AND PROCEDURAL HISTORY

The Report sets forth in exhaustive detail the relevant facts and standards of law, and the Court incorporates them and summarizes below only in relevant part. Plaintiff filed this matter on October 18, 2013, bringing § 1983 claims for: (1) unlawful search, excessive force, and a violation of due process under the Fourth and Fourteenth Amendments against all Defendants; (2) deliberate indifference against Defendants Byrd, Darlington County Sherriff's Office, and Darlington County; and, (3) conspiracy against the state actors and civil conspiracy against the non-state actors. (ECF No. 1-1 ¶¶ 46–47, 56–57, 67–68.) Plaintiff also brings claims under South Carolina law for: (1) civil conspiracy; (2) negligence and gross negligence against Defendants Byrd, Darlington County Sherriff's Office, Darlington County, Darlington County Police, and the City of Darlington; (3) wrongful death; and (4) a "survivorship action." (Id. ¶¶ 64–66, 73–78.)

On January 12, 2016, Defendant Weatherford moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 59.) On January 13, 2016, the remaining Defendants also moved for summary judgment. (ECF Nos. 63; 64.) After consideration of Plaintiff's response filed in opposition to these motions for summary judgment (ECF No. 76) and Defendants' replies (ECF Nos. 80; 82), the Magistrate Judge prepared three thorough Report and Recommendations. (ECF Nos. 116; 118; 119.) The Court has reviewed the objections to the Reports,¹ and finds them to be largely without merit. Therefore, it will enter judgment accordingly.²

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber , 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson , 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005).

DISCUSSION

A. Report One

In Report One, the Magistrate Judge recommended granting Defendant Weatherford summary judgment on Plaintiff's § 1983 claim for Fourth Amendment knock-and-announce violations based on qualified immunity. (Id. at 41.) However, she recommended denying Defendant Weatherford summary judgment on Plaintiff's Fourth Amendment cause of action for excessive force and § 1983 conspiracy cause of action. (Id. at 41–42.) She also recommended denying Weatherford summary judgment on Plaintiff's state law claims for civil conspiracy, wrongful death, and her survivorship action. (Id. at 33–34.)

1. Defendant Weatherford's Objections

Defendant Weatherford objects to Report One on two grounds, arguing that the Magistrate Judge erred in: (1) finding that a question of fact remains as to whether Weatherford used excessive force in executing the search warrant; and, (2) finding that Plaintiff's civil conspiracy claim should survive summary judgment. (ECF No. 125 at 1–13.) The Court addresses these objections in turn.

a. Excessive Force Claim

Plaintiff alleges that Defendant Weatherford used excessive force by fatally shooting Russell when executing the search warrant. (ECF No. 1-1 ¶ 46–47.) "The Fourth Amendment governs claims of excessive force during the course of an arrest, investigatory stop, or other ‘seizure’ of a person." Riley v. Dorton , 115 F.3d 1159, 1161 (4th Cir. 1997) (citing Graham v. Connor , 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ), abrogated on other grounds by Wilkins v. Gaddy , 559 U.S. 34, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) ; see also Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus, claims that law enforcement officers have used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment and its reasonableness standard. See Graham , 490 U.S. at 395, 109 S.Ct. 1865. In determining whether the force used in the context of an arrest is reasonable under the Fourth Amendment, the Court must pay "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396, 109 S.Ct. 1865 (citing Garner , 471 U.S. at 8–9, 105 S.Ct. 1694 ). Moreover, "the ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citing Terry v. Ohio , 392 U.S. 1, 20–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 396–97, 109 S.Ct. 1865. And the "reasonableness" inquiry in the context of the Fourth Amendment is an objective one: "the question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their intent or motivation." Id. at 397, 109 S.Ct. 1865.

Here, the Magistrate Judge found that the Graham factors did not conclusively establish the reasonableness of Weatherford's actions in using deadly force against Russell. (ECF No. 116 at 29.) She found that the first factor—the severity of the crime— weighed in favor of Russell. (Id. ) As she correctly noted, Russell was suspected of taking part in illegal gambling activities, a non-violent crime. (I...