Opinion
C. A. 3:20-3737-JMC-SVH
09-01-2022
Anthony Gagliani, Individually and as Personal Representative of the Estate of Stephen Walter Gagliani, Plaintiff, v. Lexington County Sheriff's Department, South Carolina Law Enforcement Division, Deputy Brandon Kinder, Deputy Jason Wilkes, State Constable Lawrence Markey, and Lance Thomas, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Before the sun rose on September 18, 2019, law enforcement was called for a welfare check on their neighbor who was shirtless and acting erratically in the roadway of their neighborhood. The man was in his trailer when two police officers arrived to question him. Within minutes, the police officers struggled to handcuff him, tasing him four times and unloading a can of pepper spray in his face. He lost consciousness and officers attempted CPR while awaiting an ambulance. He never regained consciousness and was removed from a ventilator days later. In this case, the man's father asserts federal and state claims to recover damages from the events of that morning that led to his son's death.
Anthony Gagliani (“Plaintiff”), individually and as personal representative of the estate of Stephen Walter Gagliani (“Decedent”), originally filed this case in the Court of Common Pleas for Richland County, South Carolina. The case was removed to this court on October 23, 2020. Plaintiff asserts claims against Lexington County Sheriff's Department (“LCSD”), South Carolina Law Enforcement Division (“SLED”), Deputy Brandon Kinder (“Kinder”), Deputy Jason Wilkes (“Wilkes”), State Constable Lawrence Markey (“Markey”), and Lance Thomas (“Thomas”) pursuant to the South Carolina Tort Claims Act, SC Code Ann. § 15-78-70 (“SCTCA”) and 42 U.S.C. § 1983, all stemming from the interactions of Kinder, Wilkes, Markey, and Thomas with Decedent on September 18, 2019, that resulted in his death. Plaintiff asserts the following claims: (1) grossly negligent hiring, training, and employment (against LCSD and SLED); (2) grossly negligent failure to acquire, maintain, furnish, and utilize properly-functioning equipment (against LCSD, SLED, Kinder, Wilkes, and Markey); (3) deliberate indifference (against LCSD and SLED; (4) improper search and seizure and excessive force and due process violations (against Kinder, Wilkes, and Markey); (5) gross negligence- wrongful death and survival (against LCSD, SLED, Kinder, Wilkes, and Markey); (6) grossly negligent provision of medical and lifesaving care (against LCSD, SLED, Kinder, Wilkes, and Markey); and (7) deliberate indifference- violation of the Eighth and Fourteenth Amendments (against Kinder, Wilkes, and Markey). [See ECF No. 23].
Plaintiff's claims against Lexington County, South Carolina, were dismissed. [See ECF No. 17].
The case is before the court on the summary judgment motions filed by SLED [ECF No. 39] and LCSD, Kinder, Wilkes, Markey, and Thomas (collectively, “Sheriff Defendants”) [ECF No. 40]. The motions are fully briefed [ECF Nos. 46, 47, 48, 51] and ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). Because the motions are dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends the district judge grant SLED's motion for summary judgment and grant in part and deny in part Sheriff Defendants' motion for summary judgment.
I. Factual Background
On September 18, 2019, at approximately 6:30 a.m., Kinder and Markey were dispatched to conduct a welfare check at 204 Crestridge Drive in Lexington, South Carolina, following reports that a shirtless, white male was observed “screaming down the road,” “attacking cars,” “punching his chest,” and “screaming like he is Jesus.” [ECF No. 47-1 at 1, 7]. The dispatcher was not able to ascertain whether the behavior was indicative of a physical, medical, or mental condition. See id. at 7.
At the time of the call, Kinder and Markey were responding to a car break-in at another location. [ECF No. 47-2 at 95:3-96:3]. Shortly after receiving the call from dispatch, Wilkes requested Kinder and Markey leave the car break-in and conduct the welfare check. Id. at 96:9-97:4.
Wilkes supervised Kinder, Markey, and Thomas. [ECF No. 40-9 at 146:6-13].
With lights and sirens on, Kinder and Markey arrived on scene and encountered neighbor Teresa Mills, who stated that the man had “walked into the 204 [Crestridge] address.” [ECF No. 47-2 at 100:25-101:22, 103:20-23]. Kinder and Markey proceeded to 204 Crestridge, and Kinder “knock[ed] on the side of the trailer.” Id. at 104:23-24, 106:14-21. After the knock, Decedent opened the door, exited, and descended the stairs into the yard. Id. at 107:11108:16. While Decedent descended the stairs, Kinder scanned him for weapons. Id. at 109:2-110:3. Kinder saw no weapons and did not believe Decedent was a threat to himself or others. Id. at 109:2-111:8.
The following exchange occurred:
Kinder: Hey man, you want to come out and talk to us?
Decedent: Yes.
Kinder: What you got going on today?
Decedent: Nothing much what do you have going on today?
Kinder: Depends what are you doing in the road yelling and screaming at people, jumping in front of cars?
Decedent: I'm gonna be going to work here shortly. If not, that's fine. If y'all want to take me to jail, then go ahead.
Kinder: What are you doing, is my question.
Decedent: What am I doing? . . . I'm not sure what you mean.
Kinder: We got three or four people calling here saying a shirtless male with black shorts on is screaming and jumping in front of cars. I'm asking you-
Decedent: What else did I have on, cause I might have had something else on and might not have.
Kinder: Was that not you ....
Decedent: I don't know. Was it?
Kinder: You tell me.
Decedent: I don't know. You tell me.
[Kinder Body Camera at 10:44:45].
The parties have submitted to the court one copy each of the body camera footage from Kinder, Wilkes, and Thomas, upon which both Plaintiff and Sheriff Defendants rely. The time reflected on the body camera footage is not accurate, as it reflects having been recorded four hours later than when the events occurred. [See ECF No. 40-13 at 8].
The body camera footage reflects Decedent's manner was calm, while Kinder's voice became increasingly agitated. Kinder testified he felt Decedent did not understand the questions and that Decedent's “pupils were pinpoint.” [ECF No. 47-2 at 114:12-23]. Kinder also testified he did not believe Decedent posed a threat to himself or others. Id. at 113:9-114:7, 116:14-117:20.
Shortly after Kinder began questioning Decedent, Wilkes arrived on scene, exited his police vehicle, and walked up to Decedent's residence. [ECF No. 47-3 at 105:24-108:16, Wilkes Body Camera at 10:45:13]. As he walked up to the residence, Wilkes was able to hear Kinder asking Decedent questions and to observe Decedent's physical appearance, noting that he only had on a pair of black shorts. [ECF No. 47-3 at 110:6-25]. Wilkes noted Decedent appeared calm, specifically that Decedent's voice was not elevated and that he was not screaming or yelling, but his answers to Kinder's questions were “standoffish,” “a little off,” or illogical. Id. at 111:1-112:21.
Wilkes states that when he arrived, visibility was somewhat limited because the sun was not fully up, but that visibility gradually improved during the officers' response to the incident. [ECF No. 40-10 at 4].
Kinder then asked Decedent “what are you on right now?” and Decedent indicated he had not taken anything. Kinder stated “Really? Your pupils are always about that big? Pinpoint?” [Kinder Body Camera at 10:45:51]. Kinder asked if anyone was inside Decedent's home, and Decedent offered to let the officers look inside. Id. at 10:46:10. Wilkes testified that “it seemed more like a narcotic related issue than a mental health related issue at that point.” [ECF No. 47-3 at 113:7-114:6].
Almost immediately after Wilkes arrived, and following his short interaction above, Kinder walked away to interview the neighbors after telling Wilkes and Markey to stay with Decedent. [ECF No. 47-2 at 124:1-8, Wilkes Body Camera at 10:46:20]. Kinder testified that when he made the decision to walk away from Decedent, he still did not perceive him to be a threat to himself or others. [ECF No. 47-2 at 124:9-12]. Kinder testified that had he believed Decedent to be a threat, he would not have walked away. [ECF No. 47-2 at 124:13-24]. Wilkes immediately took over questioning Decedent and asked for his identification. Decedent asked “what ID?” and Wilkes replied “your South Carolina or other state identification card.” [Wilkes Body Camera at 10:46:25]. Decedent asked “what do you mean?” Id. at 10:46:33.
Wilkes testified that, at this point, he felt Decedent was giving him the “thousand-yard stare,” which he stated was the basis for deciding to seize him, even though Decedent had not threatened Wilkes, taken a fighting stance, or raised his hands. [ECF No. 47-3 at 109:11-24, 127:12-22, 133:2-18, 137:2-11]. Wilkes testified that, at this point, he “made the decision that it would probably be safer for us, we need to get EMS out there as soon as we could I felt . . . to try to kind of control Mr. Gagliani.” Id. at 109:19-23; see also id. at 167:4-6, 174:11-15 (Wilkes testifying he made the decision to “detain the subject and call Lexington County EMS [] so that EMTs could assess his condition.”). Wilkes further testified he seized Decedent out of concern for everyone's safety by making sure that Decedent “was contained where he [could not] take off and go running,” even though Wilkes also testified he did not believe Decedent was going to flee. Id. at 127:17-24, 166:11-24. Wilkes testified he did not inform Decedent that they were going to detain him, but that it was his “intention . . . to tell him after we had control of his hands.” Id. at 142:20-143:5.
Wilkes testified the “thousand-yard stare” did not occur until he requested Decedent's identification and that he did not perceive Decedent to be a threat prior to that moment. [ECF No. 47-3 at 155:8-157:8, 159:15-23]. When asked to define and/or explain the “thousand-yard stare” and where officers are taught to recognize it, Wilkes testified it was completely subjective and was not something he was trained on either at the South Carolina Criminal Justice Academy or through continuing education courses. Id. at 128:4-129:19.
Markey observed children waiting for the school bus and other adults in the area when he and Kinder arrived. [ECF No. 40-7 at 120:3-11].
The body camera evidence shows that in the time span of less than two minutes, Wilkes arrived on the scene, asked Decedent about his ID, gestured for Kinder to walk back towards him and Decedent, and moved to grab Decedent's left arm, ordering him to place his hands behind his back. [Wilkes Body Camera at 10:45:13-10:46:44, see also Kinder Body Camera at 10:46:35]. When Wilkes grabbed Decedent's left arm, Kinder grabbed Plaintiff's right arm and ordered him to stop resisting. [Wilkes Body Camera at 10:46:44, ECF No. 47-2 at 128:9-25]. Decedent resisted being handcuffed and tried to pull away. [Wilkes Body Camera at 10:46:44].
As the physical altercation began, Wilkes' body camera fell on the ground such that only the audio can be heard for the remainder of the recording, not a video of the interaction. [Wilkes Body Camera at 10:47:00]. Kinder's body camera also apparently malfunctioned and turned off for less than a minute. [See ECF No. 40-13 at 14]. When Kinder's body camera reactivated, it was on the ground and shows Decedent lying near the camera with a deputy standing over him. [Kinder Body Camera at 10:47:27].
Kinder testified that at that point, he and “Wilkes both decided that we need to take the individual to the ground to try to better control him,” and Kinder told Wilkes aloud that they needed to take Decedent to the ground. [ECF No. 40-5 at 134:24-135:6]. Kinder testified he, Wilkes, and Decedent ended up on the ground, with Decedent on his stomach, and Kinder and Wilkes on each side of him, as Kinder tried to move Decedent's right arm behind his back. Id. at 135:7-136:15. The body camera reflects officers warning Decedent to put his hands behind his back or he would be tased. [Kinder Body Camera at 10:47:27]. Markey, standing to the side, also orders Decedent to “comply” with the officers' orders. Id. at 10:47:35. Kinder testified Decedent had done nothing to be placed under arrest and that “[w]e were still just trying to get medical profession-get him detained and the scene secured so medical professionals could come and evaluate him.” [ECF No. 40-5 at 137:7-12].
Over the next minute, the following is heard, and it appears Decedent and the officers are at a standstill, with Decedent on all fours during all or part of the following exchange and the officers standing above him:
Officer: Are you going to put them behind your back?
Decedent: (Quietly) No.
Officer: You are going to get tased, you hear me? You are about to get tased.
Decedent: (Calmly) Go for it. (Long Pause) Go for it.
Officer: (Yelling) Sir, I'm giving you one last chance. Put your hand behind your back or you are going to get tased.
Decedent: (Quietly) Go for it.
Kinder: Y'all ready?
Wilkes: Hold on.
Officers: (Inaudible)
Wilkes: Let go of my hand. Let go of my hand. Let go of my hand.[Kinder Body Camera at 10:47:47, see also ECF No. 40-6 at 8]. Wilkes testified Decedent grabbed his hand, but that eventually he was able to get his hand away prior to Kinder tasing Decedent. [See, e.g., ECF No. 40-9 at 184:19-22, 190:20-191:8].
Kinder testified that after Decedent grabbed Wilkes' hand, he stood up “and applied pressure to the back of the subject's head to try to keep him down on all fours and not get up any further” and pulled his taser out. [ECF No. 405 at 137:17-23]. Markey testified as follows:
Q: Just so I understand, this man is lying on the ground on his stomach and just simply not putting his arms behind his back?
A: Right.
Q: And Deputy Kinder tases him?
A: Yes ....
Q: When you say resist, the subject continued to resist, you just simply mean I'm not putting my arms behind my back?
A: He-he wasn't putting his arms behind his back.[ECF No. 40-7 at 189:14-190:3].
Kinder deployed his taser, tasing Decedent for the first time, and then told him to roll over, as Decedent screamed multiple times. [Kinder Body Camera at 10:48:42, see also ECF No. 40-13 at 19 (taser report)]. Kinder stated as follows regarding this moment:
The prongs from the cartridge impacted the subject, and the taser appeared to have at least some effect as he momentarily stopped resisting our efforts to detain him. I then went right back on the ground to detain the subject before the five (5) second cycle of the taser completed.[ECF No. 40-6 at 8]. It appears Decedent was then raised to his knees and then taken back to the ground. Multiple people then yell “roll over,” and Decedent continued to scream. [Kinder Body Camera at 10:48:50].
Kinder then requested backup, and someone yelled “you are going to get hit again.” Id. at 10:49:01. The following exchange then occurs, and the body camera evidence indicates that during the following exchange, the parties are at a standstill again:
Wilkes: I don't know what is wrong with you dude. (Inaudible) But we are trying to help you.
Decedent: No, you're not.
Wilkes: Obviously, you don't want our help.
Decedent: (Quietly) No.
Wilkes: Obviously you are running around the neighborhood causing mischief.
Decedent: (Quietly) No.
Wilkes: So you are under arrest for public disorderly conduct.
Decedent: (Quietly) No.[Kinder Body Camera at 10:49:27, see also ECF No. 47-3 at 138:18-139:7 (Wilkes testifying he “spoke out of turn” by saying “public disorderly conduct”)].
After the above exchange, Kinder immediately tased Decedent a second time as Decedent screamed. [Kinder Body Camera at 10:49:45, see also ECF No. 40-13 at 19, ECF No. 40-6 at 9 (“I'm not sure what happened with my taser, but it appeared that my second deployment of it did not affect the subject in the slightest”)]. Someone then says “again,” and someone yells “you are about to get it again.” [Kinder Body Camera at 10:49:50].
At this point, Kinder's body camera showed Decedent slowly standing up, multiple people yelling “get down,” and Wilkes deploying his taser, tasing Decedent for the third time. During this tasing, Decedent is standing, arms by his side, somewhat swaying, and then pulling the taser prongs out of his body. [Kinder Body Camera at 10:50:00, see also ECF No. 40-13 at 19, ECF No. 4010 at 6]. Someone then yells “you are under arrest” and “get down on the ground right now.” [Kinder Body Camera at 10:50:14]. Wilkes then orders Markey to “hit him” with his oleoresin capsicum spray (“OC spray”). Id. at 10:50:17. In his voluntary statement, submitted after the incident, Markey stated that he used the entire can of OC spray on Decedent's eyes and face to no effect. [ECF No. 40-8 at 5].
Thereafter, Wilkes deployed his taser again, tasing Decedent for the fourth time, Decedent screams, someone yells “get on the ground,” and someone calls into dispatch as follows: “county, we have multiple taser deployments, he is still up. Pulling the wires out.” [Kinder Body Camera at 10:50:27, see also ECF No. 40-13 at 19]. For the next few moments, although nothing can be seen on the body camera recording, officers can be heard repeatedly yelling for Decedent to get on the ground and that he is under arrest, although there are no sounds of fighting. [Kinder Body Camera at 10:50:54-10:51:27; see also ECF No. 51-3 at 6:50:29-6:51:28 (surveillance video from across the street showing Decedent slowly moving toward the road, away from the officers)]. Kinder provided in his voluntary statement, after Wilkes deployed his taser twice and “[a]fter Constable Markey unsuccessfully deployed his OC spray, the subject would move towards one of us. After a few steps, the subject would change direction and move towards a different deputy.” [ECF No. 40-6 at 9].
Next, Kinder's body camera records in rapid succession the sounds of a struggle, someone say “get that handcuff on right now,” and someone say “choke him out, choke him.” [Kinder Body Camera at 10:51:27]. According to a neighbor witness, either Wilkes or Kinder “snuck a chokehold takedown” on Decedent. [ECF No. 47-10 at 39:12-42:5]. She indicated the officer “placed his arm around Stephen's neck” and that there was nothing “in between that officer's arm and Stephen's neck.” Id. at 42:6-17. Also, at some point, Wilkes punched Decedent, fracturing the metacarpal of his right punching hand. [ECF No. 46-6 at 192:13-19; see also id. at 3].
Around this time, Markey was able to place one handcuff on Decedent's left wrist, and chain the open handcuff to another set, to “secure subject's arms without his arms being fully extended behind his back.” [ECF No. 40-8 at 6].
In contrast, Wilkes states that he “grabbed the subject around the shoulder area to once again try to take him to the ground,” causing them both to fall backwards. [ECF No. 40-10 at 7].
In his voluntary statement, Wilkes indicates Decedent grabbed Wilkes' fingers of his right hand and bent them back; thereafter when he punched Decedent in the head, Wilkes “immediately experienced more excruciating pain in [his] right hand.” [ECF No. 40-10 at 6, 8]. Wilkes reported a surgeon installed a plate and six screws to repair the fractured bone in his right hand. Id. at 9.
Over the next few minutes, officers can be heard screaming, yelling, or stating “stop fighting,” “you are under arrest,” and “stop resisting.” [Kinder Body Camera at 10:51:38]. Sirens can be heard approaching, and someone screams “stop, stop, stop moving, stop moving.” Id. at 10:53:19.
Next, Thomas arrived on the scene. [Thomas Body Camera at 10:54:18]. Thomas' body camera shows Decedent on the ground, on his back, near the street, with Kinder and Wilkes on either side of him, kneeling, struggling with him, and Markey standing at Decedent's feet. [Thomas Body Camera at 10:54:18, ECF No. 40-11 at 60:6-62:17]. Thomas observed blood running down Wilkes' face. [ECF No. 40-12 at 6].
Thomas testified he heard Wilkes ask via radio for assistance and was in transit when he responded to the request. [ECF No. 47-5 at 56:4-15].
Thomas also observed that Kinder had been bitten; however, Kinder reported that his “left elbow wound up near the subject's mouth, and I'm not entirely sure if the subject bit me or if his teeth were just pressing against and into my left arm.” [ECF No. 40-6 at 10].
Almost immediately after arriving, Thomas knelt and assisted in subduing Decedent. [Thomas Body Camera at 10:54:35]. During this time, Decedent can be heard breathing heavily and crying out for “help.” [Kinder Body Camera at 10:54:25-10:54:37]. Thomas testified he pushed Decedent's head to the side and placed his hand or knee into Decedent's left arm. [ECF No. 40-11 at 63:4-65:19, ECF No. 40-12 at 6]
Plaintiff has submitted a still picture from Thomas' body camera, arguing it depicts Decedent's airway was obstructed by officers placing their hands and arms across Decedent's neck, taken at 10:54:32. [ECF No. 47-14].
The body camera evidence shows Markey standing at Decedent's feet, holding onto one end of handcuffs that are presumably attached to Decedent's left arm and then handing that end of the handcuffs to Thomas. [Thomas Body Camera at 10:55:01, ECF No. 40-11 at 81:11-23]. The other officers appear to be trying to place Decedent's other arm in handcuffs, and someone says, “get on your fucking wrists.” [Thomas Body Camera at 10:55:19]. Someone then yells “stop,” someone says “we gotta flip him over,” and someone orders Decedent to “lay down,” the last recorded order given to Decedent. Id. at 10:55:19-10:55:44.
Following being told to “lay down,” it appears that Decedent is motionless, lying on his back, with Kinder and other officers continuing to hold him down. Id. at 10:55:44. While still holding Decedent down, the following occurs:
Kinder: (Talking to Thomas) We've already hit him four times. We've hit him with pepper spray. It's not working. (Long pause and discussion with dispatch where Thomas asks who is coming to the scene, dispatch replies “everybody is coming” and Kinder yells “give me an ETA”).
Kinder: (Yelling) You calming down? (Long pause)
Wilkes: (Muffled) Hold on a minute, I've got my arm on his neck.
Thomas: I think he's not out.
Officer: Is he conscious?
Thomas: It's just. Hey, buddy. (Guttural sound).
Officer: Is he conscious?
Thomas: Hey, buddy. That or he's acting. We'll just wait until more get here then try to roll him.[Thomas Body Camera at 10:55:44-10:56:45, see also ECF No. 47-1 at 7 (transcript of discussion with dispatch)].
When asked why Wilkes had his arm across Decedent's neck, Kinder stated “I can't answer that question. I don't know .... I'm not Sergeant Wilkes. So I can't answer that.” [ECF No. 47-2 at 164:11-19].
Officers continue to hold down Decedent, Thomas calls for an ambulance to respond to the scene, and the following is heard, although muffled, spoken by multiple officers: “Is he still-Is he breathing? Get off his neck. Is he breathing? I don't think so. He's not breathing?” [Thomas Body Camera at 10:57:21-10:57:35]. Kinder then begins CPR. Id. at 10:57:35.
Plaintiff argues that instead of “get off his neck,” the recording is “get fucking off his neck.” [See ECF No. 47 at 11]. As stated above, the recording is muffled.
Over a minute later, someone yells “Narcan, you have Narcan?” and Thomas runs to his vehicle to retrieve the Narcan and administers it twice, but Decedent remains unresponsive. [Thomas Body Camera at 10:59:13, ECF No. 40-12 at 7]. Multiple people take turns administering CPR until EMS arrived. [Thomas Body Camera at 11:00:10, ECF No. 40-12 at 7].
Narcan is used to reverse an opioid overdose. [See ECF No. 40-13 at 5].
Decedent remained unconscious, unresponsive, and on a ventilator until taken off life support six days later, on September 24, 2019. Decedent's death was determined to be the result of an “undetermined cause while in custody of law enforcement.” His blood tested “negative during toxicological analysis,” although there was an insufficient amount to test for synthetic cannabinoid. [See ECF No. 40-13 at 20].
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
1. Sheriff Defendants' Motion for Summary Judgment a. Fourth Amendment Excessive Force Claim
The court analyzes claims of excessive force by law enforcement in the course of an arrest under the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). Determining whether the force used to carry out a particular arrest is “unreasonable” under the Fourth Amendment requires “balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985). The outcome of this balancing test necessarily depends on the facts and circumstances of the particular case. Id. at 8-9 (holding question is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure”). The court considers factors including the severity of the crime, 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. Graham, 490 U.S. at 396. Further, the analysis “must embody allowances 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.” Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009) (citation omitted); see also Jones v. Buchanan, 325 F.3d 520, 530-31 (4th Cir. 2003) (holding the extent of injuries to the plaintiff “is another consideration in determining whether force was excessive”).
Plaintiff's claims of excessive force pursuant to the Fourteenth Amendment are without basis, as all excessive force claims during an arrest are governed by the reasonableness standard under the Fourth Amendment, not a substantive due process approach under the Fourteenth Amendment. Graham, 490 U.S. at 395 (“[A]ll claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under a ‘substantive due process' approach.”).
Additionally, under the qualified immunity defense, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case. Id.
In briefing, Plaintiff does not specifically address Sheriff Defendants' argument that Wilkes had the authority to detain Decedent so he could be evaluated by emergency medical services pursuant to S.C. Code Ann. § 44-13- 05(A). This statute provides in part as follows:
if a law enforcement officer observes a person conducting himself in a manner that causes the law enforcement officer to reasonably believe that the person is mentally ill or is suffering from chemical dependency and because of that condition poses a likelihood of serious harm to himself or others . . ., the law enforcement officer may take the person into protective custody and transport the person to the local mental health center . . . for examination and pre-admission screening and evaluation of psychiatric and
chemical dependency emergencies.S.C. Code Ann. § 44-13-05(A).
The court has addressed this statute once, granting summary judgment on the relevant issue, and holding as follows:
Given Childress's erratic demeanor at CPD, her long history of mental and emotional instability, her decision to stop taking her medication, and her neighbors expressing their concerns for their own safety, it was entirely reasonable for CPD officials to take Childress into emergency protective custody.Childress v. City of Charleston Police Dep't, C/A No. 2:13-01225-DCN, 2015 WL 5231625, at *5 (D.S.C. Sept. 8, 2015), aff'd in relevant part, vacated in part, remanded, 657 Fed.Appx. 160 (4th Cir. 2016).
Given the reports of Decedent's behavior prior to the officers' arrival, as well as Decedent's somewhat erratic answers to the officers' questions and pupil size, it appears the officers complied with the above statute in attempting to take Decedent into protective custody. See Childress, 2015 WL 5231625, at *5 (“the information available to CPD officials at the time they took her into protective custody would lead a ‘law enforcement officer to reasonably believe that [Childress] is mentally ill or is suffering from a chemical dependency and because of that condition poses a likelihood of serious harm to [herself] or others.'”) (citing S.C. Code Ann. § 44-13-05(A)).
However, Plaintiff takes issue with the way in which the officers attempted to detain Decedent. Generally, the parties address the following discrete events regarding Plaintiff's Fourth Amendment excessive force claim: (1) Wilkes' initial seizure, (2) Kinder's two taser deployments, (3) Wilkes' two taser deployments, (4) Markey's use of pepper spray, (5) Wilkes' chokehold takedown, and (6) the weight placed on Decedent's neck.
As discussed more below, Sheriff Defendants do not seek summary judgment as to the chokehold takedown or the weight placed on Decedent's neck.
i. Initial Seizure
Sheriff Defendants do not appear to dispute the first Graham factor- the severity of the crime at issue-weighs in Plaintiff's favor. They do not argue, nor does the record reveal, that Decedent committed a crime or that there existed probable cause to arrest him for a crime. “Even in a case in which the plaintiff has committed a crime,” the Fourth Circuit has found that “the first Graham factor weighs in plaintiff's favor” when the underlying offense is minor. Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 899-900 (4th Cir. 2016) (citation omitted); see also id. at 901 (“When ‘a mentally disturbed individual not wanted for any crime . . . [i]s being taken into custody to prevent injury to himself[,] [d]irectly causing [that individual] grievous injury does not serve th[e officers'] objective in any respect.'”) (citing Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003)).
The second Graham factor-whether Decedent posed “an immediate threat to the safety of the officers or others”-also weighs in Plaintiff's favor. All parties agree that prior to Wilkes' seeing Decedent's “thousand-yard stare” and seizing Decedent, Decedent was not a threat, and that Decedent made no comments nor engaged in actions that could have been construed as threatening. Additionally, Decedent was in his front yard, with no potential weapons in view, unarmed, wearing only shorts with no shoes, surrounded by three armed officers.
Likewise, as to the third factor-whether Decedent was resisting or attempting to escape at the time of the initial seizure-Decedent was conversational, even if his answers were, at times, irrational. He had willingly exited his residence to speak with Kinder and Markey and had not attempted to leave, although he was not under arrest, and all parties agree he was under no obligation to answer the officer's questions. [See, e.g., ECF No. 47-2 at 110:4-23, ECF No. 47-3 at 113:2-6].
Accordingly, a reasonable juror could conclude that Wilkes, who failed to inform Decedent that he was being detained for assessment, failed to issue any orders to Decedent prior to grabbing him, and grabbed Decedent's arm roughly two minutes after arriving on the scene, was unreasonable in initially seizing Decedent.
Plaintiff additionally argues that following Wilkes' initial seizure, Decedent pulled his arm away, and “[t]his passive, non-violent resistance led the Defendants to immediately pull Mr. Gagliani to the ground,” which Plaintiff further argues violated Decedent's rights. [See ECF No. 47 at 15-16, 23-24]. Taking the evidence in the light most favorable to Plaintiff, Decedent was forced to the ground after he resisted officers trying to handcuff him. The Fourth Circuit has held “[a]n arrestee ‘yank[ing] his arm away' from a police officer . . . does not justify ‘being tackled.'” Armstrong, 810 F.3d at 904 (citing Goodson v. City of Corpus Christi, 202 F.3d 730, 733, 740 (5th Cir. 2000)); see also id. (holding “an arrestee pulling her arm away when a police officer grab[s] her without explanation” an insufficient “that to the arresting officer to justify physical striking the arrestee”) (citing Smith v. Ray, 781 F.3d 95, 103 (4th Cir. 2015)).
This conclusion is further buttressed by additional considerations beyond the nonexclusive Graham factors. Here, officers were attempting to detain Decedent for the purposes of protective custody, as opposed to arrest. As the Fourth Circuit explains:
Mental illness, of course, describes a broad spectrum of conditions and does not dictate the same police response in all situations. But “in some circumstances at least,” it means that “increasing the use of force may . . . exacerbate the situation.” [Deorle v. Rutherford,272 F.3d 1272, 1283 (9th Cir. 2001)]. Accordingly, “the use of officers and others trained in the art of counseling is ordinarily advisable, where feasible, and may provide the best means of ending a crisis.” Id. And even when this ideal course is not feasible, officers who encounter an unarmed and minimally threatening individual who is “exhibit[ing] conspicuous signs that he [i]s mentally unstable” must “de-escalate the situation and adjust the application of force downward.” Martin v. City of Broadview Heights, 712 F.3d 951, 962 (6th Cir. 2013).
Armstrong, 810 F.3d at 900.
The officers' arguments that they believed Decedent to be under the influence of drugs, as opposed to having a mental health crisis, does not alter the court's analysis.
ii. Repeated Tasings and OC Spray
Turning to the events following the initial seizure and the parties ending up on the ground, the record indicates that Decedent continued to resist for roughly ten minutes, repeatedly refusing orders to place his hands behind his back, roll over, lay down, and stop moving, as the altercation evolved, and, in response, officers repeatedly tased Decedent and deployed OC spray. Therefore, at this time and onward, the third Graham factor weighs in Sheriff Defendants' favor, while the first Graham factor continues to weigh in Plaintiff's favor.
The second Graham factor-whether Decedent posed an immediate threat to the safety of officers or others-“is undoubtedly the ‘most important' [factor] in determining the objective reasonableness of an officer's use of force.” See Pauly v. White, 874 F.3d 1197, 1215-16 (10th Cir. 2017) (citing Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). The parties' dispute as to this factor hinges on whether Decedent's resistance to being detained was active or passive, threatening or not. The Fourth Circuit's opinions in Meyers v. Baltimore Cty., Md., 713 F.3d 723 (4th Cir. 2013), and Armstrong, 810 F.3d 892, are instructive.
In Meyers, the court held that the officer's
first three deployments of his taser did not amount to an unreasonable or excessive use of force. During the period that Officer Mee administered the first three taser shocks, Ryan was acting erratically, was holding a baseball bat that he did not relinquish until after he received the second shock, and was advancing toward the officers until the third shock caused him to fall to the ground. Under these circumstances, Ryan posed an immediate threat to the officers' safety, and was actively resisting arrest.713 F.3d at 733. The court held, however, that the ensuing seven taser shocks were not objectively reasonable and violated the decedent's clearly-established constitutional rights in that:
It is an excessive and unreasonable use of force for a police officer repeatedly to administer electrical shocks with a taser on an individual who no longer is armed, has been brought to the ground, has been restrained physically by several other officers, and no longer is actively resisting arrest.Id. at 734.
In Armstrong, the Fourth Circuit again addressed the use of a taser, but against a noncompliant, but unarmed, suspect, as follows:
While the questions whether an arrestee has been restrained and is complying with police directives are, of course, relevant to any inquiry into the extent to which the arrestee “pose[s] a continuing threat to the officers' safety,” they are not dispositive. A rule limiting taser use to situations involving a proportional safety threat does not countenance use in situations where an unrestrained arrestee, though resistant, presents no serious safety threat.
Indeed, application of physical restraints cannot be the only way to ensure that an arrestee does not pose a sufficient safety threat to justify a tasing. If it were, use of a taser would be justified at the outset of every lawful seizure, before an arrestee has been restrained. This, of course, is not the law. Courts recognize that different seizures present different risks of danger .... Firing a taser “almost immediately upon arrival” at the scene of an altercation, before an officer “could . . . have known what was going on,” is, consequently, constitutionally proscribed. Casey v. City of Fed. Heights, 509 F.3d 1278, 1285 (10th Cir.2007); see also id. at 1286 (“[I]t is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force-or a verbal command-could not exact compliance.”). Painful, injurious, serious inflictions of force, like the use of a taser, do not become reasonable simply because officers have authorization to arrest a subject who is unrestrained.
Even noncompliance with police directives and nonviolent physical resistance do not necessarily create “a continuing threat to the officers' safety.” .... other circuits have held that taser use can constitute excessive force when used in response to non-violent resistance. The subject of a seizure “refus[ing] to release his arms for handcuffing,” for example, “is no[t] evidence suggesting that [he] violently resisted the officers' attempts to handcuff him.” Such a refusal, therefore, does not justify deploying a taser when the subject “[i]s unarmed and there [i]s little risk [he] could access a weapon ....
In all of these cases, we declined to equate conduct that a police
officer characterized as resistance with an objective threat to safety entitling the officer to escalate force. Our precedent, then, leads to the conclusion that a police officer may only use serious injurious force, like a taser, when an objectively reasonable officer would conclude that the circumstances present a risk of immediate danger that could be mitigated by the use of force. At bottom, “physical resistance” is not synonymous with “risk of immediate danger.”Armstrong, 810 F.3d at 903-05 (some citations omitted, emphasis in original); see also Livingston v. Kehagias, 803 Fed.Appx. 673, 684 (4th Cir. 2020) (“Livingston's only resistance was of the passive variety, in the form of refusing to give up his hands for handcuffs.”); Goodson, 202 F.3d at 733, 740 (holding an arrestee yanking his arm away from a police officer does not justify being tackled); Cyrus v. Town of Mukwongo, 624 F.3d 856, 863 (7th Cir. 2010) (holding that a subject's refusal to release his arms for handcuffing was not evidence which suggested that he violently resisted the officer's attempts to handcuff him, and which could not have properly premised taser applications).
Plaintiff has submitted evidence that Kinder and Wilkes had been trained on the holdings of Armstrong prior to encountering Decedent. [See ECF No. 47 at 25 (citing ECF No. 47-15 (Armstrong training video))].
Sheriff Defendants offer statements from Kinder, Wilkes, and Markey, as well as eyewitnesses, to support their argument that Decedent's resistance to being detained was an immediate threat to the safety of the officers. Kinder stated Decedent grabbed Wilkes' hand and “begin to bend it backwards” and was “fighting, resisting, pulling away” [ECF No. 40-5 at 141:12-14, 150:5]; Wilkes testified that Decedent was “[p]ulling away, taking up fighting stances,” painfully pulled his hand back, and “was physically kicking us off of him, pushing, whatever” [ECF No. 40-9 at 177:13, 181:3-182:16]; and Markey testified Decedent was “fighting, shaking us off, throwing us down.” [ECF No. 40-7 at 179:22-23].
In interviews taken shortly after the incident, three witnesses stated that Decedent was “throwing them all over the place . . . trying to get away”; that Decedent “started fighting them,” that Decedent could not be controlled, and that Decedent was “absolutely aggressive” and kept “fighting and fighting”; and that Decedent acted “like a monster,” that it was “the scariest thing she had seen in her life,” and that he was “fighting the whole time.” [See ECF No. 51 at 1-3 (citing ECF No. 51-1 at 30:43-31:11, ECF No. 50-2 at 8:008:45, 11:1-11:20, 22:30-24:58); see also id. (citing ECF No. 51-3 at 6:50:296:51:28 (surveillance video from across the street showing Decedent slowly moving toward the road, away from the officers, following the four tasings and OC spraying, based on the time stamp))].
Sheriff Defendants additionally argue that “[e]ven Plaintiff's own expert testified that Gagliani was exhibiting ‘active resistance.'” [ECF No. 51 at 3, 5 n.5]. However, the court's review of Plaintiff's expert's testimony shows that he actually testified that Decedent “was actively resisting in the sense that he was trying to prevent the officers from handcuffing him,” but that active resistance is different than “life threatening resistance, where they're doing something that would cause a reasonable officer to believe that their life or another life-life of another is at risk of imminent death or serious bodily injury.” [ECF No. 51-4 at 75:4-24].
Much of this evidence is non-specific, references unknown moments in the roughly ten-minute struggle between Decedent and the officers, and does not address the relevant question to be answered: whether Decedent posed an immediate threat to the officers or others when officers tased and pepper sprayed him. See Yates v. Terry, 817 F.3d 877, 885 (4th Cir. 2016) (“Our inquiry into the reasonableness of the force also requires us to ‘consider the facts at the moment that the challenged force was employed' ‘with an eye toward the proportionality of the force in light of all the circumstances.'”) (citing Smith, 781 F.3d at 101)); see also, e.g., Maney v. Garrison, 681 Fed.Appx. 210, 228 (4th Cir. 2017) (Traxler, J., concurring) (referencing the “factintensive nature of the Graham test for excessive force”). At best, this evidence creates a genuine dispute of material fact, precluding a grant of summary judgment.
Sheriff Defendants also argue that “Wilkes and Kinder were also transported to the hospital from the scene due to the injuries they received with Gagliani.” [ECF No. 51 at 5]. However, viewing the evidence in the light most favorable to Plaintiff, Wilkes' injury to his hand was a result of having punched Decedent, and Kinder stated that he was not bitten and instead pressed his arm into Decedent's teeth.
The court's review of the record, taken in light most favorable to Plaintiff, indicates that prior to the first tasing, Decedent grabbed Wilkes' hand, but let it go after repeatedly being told to do so, and otherwise did not hit, punch, kick, yell, lunge, or engage in any threatening behavior. As Markey testified, the only resistance Decedent engaged in prior to the first tasing was refusing to put his hands behind his back while lying on the ground on his stomach, surrounded by officers. [See ECF No. 40-7 at 189:14-190:3]. The body camera evidence likewise indicates that from the moment of initial seizure to Kinder deploying his taser both times-a roughly three-minute interval-Decedent and the officers were mostly at a standstill, with the officers standing over Decedent, talking to Decedent, and planning the first taser deployment among themselves, while Decedent refused to put his arms behind his back, repeatedly and quietly telling officers “no” and “go for it.” See also Deorle, 272 F.3d at 1283 (“Even when an emotionally disturbed individual is ‘acting out' and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.”).
After Kinder deployed his taser twice, the body camera evidence shows Decedent standing up. Over the next minute, as officers yell at Decedent to get back on the ground, he says nothing. Wilkes tases Decedent twice while he is standing. During this time, Decedent does not appear to do anything beyond stand, sway slightly, and scream after being tased. At this point, Markey also sprays Decedent with a full can of OC spray. And again, there is no indication that Decedent engages in any threatening behavior during this period.
In sum, from the moment Wilkes initially attempted to seize Decedent through Kinder and Wilkes' deploying their tasers four times and Markey's deploying an entire canister of OC spray, the facts taken in light most favorable to Plaintiff indicate that Decedent did not pose an immediate threat to the officers or others. Instead, the evidence indicates three armed officers attempted to seize an unarmed, barely-clothed man who had committed no crime, without warning or discussion as to the seizure, and, in so doing, Decedent repeatedly, but passively, resisted being seized, as the officers escalated the use of force to seize him for a noncriminal arrest.
Although Sheriff Defendants argue otherwise, Decedent's actions during this period are more akin to those found in Armstrong, as opposed to that found in Meyers:
Under these facts, when Officer Gatling deployed his taser, Armstrong was a mentally ill man being seized for his own protection, was seated on the ground, was hugging a post to ensure his immobility, was surrounded by three police officers and two Hospital security guards, and had failed to submit to a lawful seizure for only 30 seconds. A reasonable officer would have perceived a static stalemate with few, if any, exigencies-not an immediate danger so severe that the officer must beget the exact
harm the seizure was intended to avoid. Armstrong, 810 F.3d at 906.
iii. Chokehold Takedown and Weight on Neck
Following the use of tasers and OC spray, the body camera evidence indicates a struggle, followed almost immediately by someone saying, “choke him out, choke him.” Taking the evidence in the light most favorable to Plaintiff, it appears at this point, as stated by a neighbor, Decedent was taken down in chokehold and weight may have been placed on Decedent's neck by Kinder, Wilkes, and/or Thomas. As to these two alleged events, Sheriff Defendants deny they occurred, but do not move for summary judgment on them, conceding that “choke him out, choke him” is heard on Kinder's body camera and that the word “neck” is heard on two occasions in the body camera video. [See ECF No. 40-1 at 14-15].
Sheriff Defendants argue, however, that the body camera shows that Markey was at all relevant times at Decedent's feet and nowhere near his head or neck region; therefore, Markey is entitled to summary judgment as to allegations of weight being placed on Decedent's neck. [See ECF No. 40-1 at 14]. Because the evidence shows that Markey was at all relevant times at Decedent' feet and nowhere near his head or neck [see Thomas Body Camera], the undersigned recommends the district judge grant Sheriff Defendants' motion for summary judgment as to Plaintiff's excessive force claim against Markey for placing weight on Decedent's neck.
Based on all of the record evidence, there appears little doubt that Decedent was not cooperative, as he did not comply with the officers' instructions, but there is a dispute of fact as to whether Decedent therefore posed an immediate threat to the officers or others. See, e.g., Armstrong, 810 F.3d at 901 (“Noncompliance with lawful orders justifies some use of force, but the level of justified force varies based on the risks posed by the resistance.”); see also Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) (“‘Resistance,' however, should not be understood as a binary state, with resistance being either completely passive or active .... Even purely passive resistance can support the use of some force, but the level of force an individual's resistance will support is dependent on the factual circumstances underlying that resistance.”); see also Yates, 817 F.3d at 888 (“Rather, there was a commotion attributable to Terry's excessive and unjustifiable use of force, which unnecessarily escalated tension during what can at best be described as a routine traffic stop”); Smith, 781 F.3d at 103 (“Not only did [the officer's] violent response subject [the arrestee] to an obvious risk of immediate injury, it also created the very real possibility that . . . the attack would continue to meet with frightened resistance, leading to an even further escalation of the violence.”); Id. at 104 (“[O]ur determination . . . in Rowland [v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)] . . . was based on the simple fact that the officer took a situation where there obviously was no need for the use of any significant force and yet took an unreasonably aggressive tack that quickly escalated it to a violent exchange when the suspect instinctively attempted to defend himself.”).
The court rejects Sheriff Defendants' arguments that the officers' use of force was justified where, at the time Wilkes decided to detain Decedent, there were school-age children in the vicinity and where video surveillance shows Decedent attempting to move away from the officers as they were trying to put him in handcuffs. [See ECF No. 51 at 5 & n.6]. Sheriff Defendants have not submitted evidence that during Decedent's encounter with the officers, Decedent posed a threat to anyone in the surrounding area, where, at all times, Decedent was unarmed, moving slowly if at all, and surrounded by officers. The undersigned additionally notes that the time referenced by Sheriff Defendants as to the video surveillance video appears to have occurred after the tasings and OC spraying.
Additionally, the officers are not entitled to qualified immunity at this time, where the Fourth Amendment rights violated were clearly established at the time the force was deployed. See, e.g., Bailey v. Kennedy, 349 F.3d 731, 745 (4th Cir. 2003) (“Kennedy and Whitley violated clearly established law in using force to seize Michael when he had committed no crime and when they had no reason to believe he was a danger to himself or others.”); Armstrong, 810 F.3d at 910 (“Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force. While qualified immunity shields the officers in this case from liability, law enforcement officers should now be on notice that such taser use violates the Fourth Amendment.”); Park v Shfett, 250 F.3d 843, 852-53 (4th Cir. 2001) (concluding that an officer's use of “pepper spray” to subdue an unarmed subject was excessive when the subject was not a threat to the officer or the public, and that the officer was not entitled to qualified immunity): see also Barfield v. Kershaw Cty. Sheriff's Office, 638 Fed.Appx. 196, 204 (4th Cir. 2016) (“As in Rowland, Threatt ‘took a situation where there obviously was no need for the use of any significant force and yet took an unreasonably aggressive tack.' This objectively unreasonable application of force, combined with the weakness of the Graham factors, puts the ‘constitutional question beyond debate.'”) (citing Smith, 781 F.3d at 100, 104)).
Accordingly, the undersigned recommends the district judge grant Sheriff Defendants' motion for summary judgment as to Plaintiff's excessive force claim for placing weight on Decedent's neck only as to Markey and deny it as to Plaintiff's remaining excessive force claims against Kinder, Wilkes, Markey, and Thomas.
Because Sheriff Defendants do not seek summary judgment as to weight being placed on Decedent's neck except as to Markey, and it appears Plaintiff's excessive force claim as to Thomas concerns only this incident [see ECF No. 47 at 11, 20], the undersigned recommends this claim against Thomas survive Sheriff Defendants' motion for summary judgment.
b. Fourteenth Amendment Deliberate Indifference Claim
The court evaluates actions brought pursuant to 42 U.S.C. § 1983 by pretrial detainees under the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535, 537 n. 16 (1979); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Decedent's rights under the Fourteenth Amendment are at least as great as Eighth Amendment protections available to prisoners. Martin, 849 F.2d at 870.
To succeed on a 42 U.S.C. § 1983 claim for deprivation of medical care, Plaintiff must plead sufficient facts to establish both a subjective component and an objective component under the applicable two-part test. Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (citation omitted). As to the objective component, Plaintiff must show Decedent suffered a “serious medical need.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “[A] medical condition is serious when it has ‘been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'” Id. (citing Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)).
As to the subjective component, Plaintiff must show “that the defendant . . . acted with ‘deliberate indifference.'” Id. (citing Estelle, 429 U.S. at 104). “The Supreme Court has explained that ‘deliberate indifference entails something more than mere negligence,' but the standard ‘is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'” Id. at 357 (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A defendant acts with deliberate indifference sufficient to establish a deprivation of medical care claim where the defendant has “actual knowledge of the [plaintiff's] serious medical needs and the related risks, but nevertheless disregarded them.” Id. (citing DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018)). “A defendant's subjective knowledge can be proven ‘through direct evidence of [his or her] actual knowledge or circumstantial evidence tending to establish such knowledge, including evidence that [he or she] knew of a substantial risk from the very fact that the risk was obvious.'” Id. (citing Scinto, 841 F.3d at 226)).
Here, the parties do not dispute that Plaintiff has met the objective component described above. [See, e.g., ECF No. 40-1 at 22 (“The decedent's health condition when he ceased breathing during the encounter with Defendants Wilkes, Kinder, Thomas, and Markey meets the objective component of the test because it was ‘so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'”) (citing Gordon, 937 F.3d at 356))].
The question therefore become whether there is evidence that the officers were deliberately indifferent to Decedent no longer breathing. Sheriff Defendants argue there is not because “[t]he video evidence reveals that upon realizing that the decedent was no longer breathing, Defendants Kinder, Thomas, Wilkes, and Markey immediately began life saving measures.” Id. at 22-23. Plaintiff responds:
Specifically, the body camera depicts the officers articulating their decision to withhold the provision of medical care or other medical treatment until more officers arrive .... Given their training and the Defendants' admission that Mr. Gagiliani's physiological condition was dire, Plaintiff submits that he has established both the objective and subjective elements of a violation of due process under the United States Constitution and 42 U.S.C. §1983. Additionally, at the beginning of the encounter the Defendant officers were on notice that they were being dispatched to a scene involving a person who was mentally ill or experiencing some other personal crisis. Despite this knowledge, the officers did not call EMS at the outset of the encounter, and in fact waited until over a minute after they had rendered Mr. Gagliani unconscious before calling for medical help.[ECF No. 47 at 26 (citing Thomas Body Camera at 10:56:23-10:58:00)].
The record is not clear when Decedent became unconscious or stopped breathing. Taking the evidence in the light most favorable to Plaintiff, it appears that roughly two minutes may have elapsed between Decedent becoming unconscious and Kinder beginning CPR. [See Thomas Body Camera at 10:55:44-10:57:35].
In the first of these two minutes, the record indicates the officers believed Decedent was conscious and breathing, hence Kinder yelling at Decedent “you calmed down.” The officers were talking with dispatch about assistance being en route and had not begun to suspect that Decedent was unconscious. During the next minute, however, the officers began to suspect otherwise. Thomas states Decedent may be unconscious or acting, repeatedly speaks to Decedent, stating “[w]e'll just wait until more get here then try to roll him,” and calls for an ambulance for both Wilkes and Decedent. Thereafter, the officers realize Decedent is not breathing, and Kinder initiates CPR.
Plaintiff has not carried his burden to show officers violated Decedent's Fourteenth Amendment rights. Although the record indicates the officers had momentary doubt, and discussion, as to whether Decedent was unconscious, at no time did the officers have actual knowledge that Decedent had a serious medical need and then disregard that knowledge. Instead, the evidence shows that as soon as the officers realized Decedent was not breathing, they initiated CPR, and EMS had already been called.
This case stands in contrast to those where officers knew a person was unconscious and delayed in responding, even for a short amount of time. See, e.g., Est. of Booker v. Gomez, 745 F.3d 405, 434 (10th Cir. 2014) (“Here, the contours of the right are clearly established such that any reasonable officer in the Defendants' position (and with their training) would have known that failing to check Mr. Booker's vital signs, perform CPR, or seek medical care for three minutes when he was limp and unconscious as a result of the Defendants' use of force could violate the Constitution.”). Additionally, Plaintiff cites to no case law, nor is the court aware of any, indicating it is unconstitutional for officers to not call EMS at the outset of a wellness check.
Given the recommendation above, it is unnecessary to address Sheriff Defendants' further argument that EMS will not respond to a scene until it is secure. [ECF No. 51 at 6].
Accordingly, the undersigned recommends the district judge grant Sheriff Defendants' motion for summary judgment as to Plaintiff's claim for deliberate indifference.
Plaintiff has not responded to Defendants' argument that LCSD and individual defendants in their official capacities are immune from the federal claims. [See ECF No. 40-1 at 6-8 (citing McCall v Williams, 52 F.Supp.2d 611, 623 (D.S.C. 1999); Eng. v. Clarke, C/A No. 3:19-02491-JMC, 2021 WL 4398371, at *4 (D.S.C. Sept. 27, 2021); S.C. Code Ann. § 23-1-60): see also ECF No. 47]. Because Plaintiff's lack of response appears to concede the issue, see, e.g., Alvarez v. Lynch, 828 F.3d 288, 295 (4th Cir. 2016) (“an outright failure to join in the adversarial process would ordinarily result in wavier”); see also Oliver v. Baity, 208 F.Supp.3d 681, 690 (M.D. N.C. 2016) (“Courts have recognized that a party's failure to address an issue in its opposition brief concedes the issue.”); Taylor v. CVS, Inc., C/A No. 3:16-171, 2017 WL 6759625, at *1 n.3 (E.D. Va. Oct. 30, 2017) (collecting cases)), the undersigned recommends the district judge dismiss Plaintiff's federal claims against LCSD and against Wilkes, Kinder, Thomas, and Markey in their official capacities.
c. SCTCA Claims
The SCTCA is “the exclusive remedy for any tort committed by an employee of a governmental entity.” S.C. Code Ann. § 15-78-70(a). “The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained” within the SCTCA. S.C. Code Ann. § 15-78-40. As relevant here, the SCTCA additionally provides a “governmental entity is not liable for the loss resulting from . . . employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-60(17); see also id. at § 15-78-70(b). “[U]nder the SCTCA, for a given tort, either the governmental entity or the employee is liable but not both.” Newkirk v. Enzor, 240 F.Supp.3d 426, 436 (D.S.C. 2017).
Plaintiff and LCSD agree Kinder, Wilkes, Thomas, and Markey were “employees” of the Sheriff of Lexington County pursuant to the definition of employee contained in S.C. Code Ann. § 15-78-30(c) when conducting police activities while as law enforcement officers employed by the Sheriff of Lexington County. The parties also agree that Kinder, Wilkes, Thomas, and Markey were at all times acting within the course and scope of their official duties as a law enforcement officers employed by the Sheriff of Lexington County. [ECF No. 40-1 at 24, ECF No. 47 at 27-28, see also ECF No. 51]. Based on the parties' agreements, the undersigned recommends the district judge dismiss Kinder, Wilkes, Thomas, and Markey for purposes of Plaintiff's SCTCA claims only, and those claims should proceed exclusively against LCSD.
Sheriff Defendants inform the court “[t]here is no entity known as the Lexington County Sheriff's Department under the laws of South Carolina, and therefore, the only proper party for any state law claims is the Sheriff of Lexington County.” [ECF No. 40-1 at 24 n.6]. However, all parties name LCSD throughout briefing, including as to Plaintiff's state law claims; therefore, for ease of reference, the undersigned does, as well.
Plaintiff argues that Markey, as a state constable, was acting as an agent of both SLED and LCSD at the time of the incident in question. [See ECF No. 47 at 26]. This issue is addressed below in conjunction with SLED's motion for summary judgment.
Plaintiff “respectfully requests that the Court find as a binding matter of law that the officers' conduct was within the course and scope of their official duties during the subject encounter such that LCSD could not later argue to the contrary.” [ECF No. 47 at 28]. Sheriff Defendants do not argue otherwise in response [see ECF No. 51] and have stated that the “Amended Complaint does not allege nor is there any evidence that Defendants Kinder, Wilkes, Thomas, and Markey were acting outside the course and scope of their employment with the Sheriff of Lexington County.” [ECF No. 40-1 at 24].
Plaintiff asserts the following individual SCTCA claims against LCSD: (1) negligent hiring, training, and supervision, (2) negligent failure to acquire, maintain, furnish, and utilize properly functioning equipment, (3) gross negligence-wrongful death and survival; and (4) negligent provision of medical and lifesaving care.
i. Negligent Hiring, Training, and Supervision
The South Carolina Supreme Court has explained:
Just as an employee can act to cause another's injury in a tortious manner, so can an employer be independently liable in tort. In circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself
negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. As this recitation suggests, the employer's liability under such a theory does not rest on the negligence of another, but on the employer's own negligence. Stated differently, the employer's liability under this theory is not derivative, it is direct.James v. Kelly Trucking Co., 661 S.E.2d 329, 330-31 (S.C. 2008) (citations omitted). More specifically, “[n]egligent hiring cases ‘generally turn on two fundamental elements-knowledge of the employer and foreseeability of harm to third parties.'” Kase v. Ebert, 707 S.E.2d 456, 459 (S.C. Ct. App. 2011) (citing Doe v. ATC, 624 S.E.2d 447, 450 (S.C. Ct. App. 2005)). An employer is liable under a theory of negligent supervision when an employee:
(1) is upon the premises of the employer, or is using a chattel of the employer,
(2) the employer knows or has reason to know that he has the ability to control his employee, and
(3) the employer knows or should know of the necessity and opportunity for exercising such control.Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 12 (S.C. Ct. App. 1997) (citing Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992)). Whether negligent training and negligent supervision are distinct torts in South Carolina is not settled. See Holcombe v. Helena Chem. Co., C/A No. 2:15-2852-PMD, 2017 WL 713921, at *5 (D.S.C. Feb. 23, 2017) (holding that “negligent training is merely a specific negligent supervision theory by another name.”); Gainey v. Kingston Plantation, C/A No. 4:06-3373-RBH, 2008 WL 706916, at *7 n.4 (D.S.C. Mar. 14, 2008) (“It does not appear that South Carolina recognizes a claim for negligent training separate and apart from one for negligent supervision.”); but see Hamilton v. Charleston Cty. Sheriff's Dep't, 731 S.E.2d 727, 728 (S.C. Ct. App. 2012) (affirming the trial court, which “granted the [defendant's] directed verdict motion on the negligent training claim, but denied the [defendant's] motion on the negligent supervision claim”).
These cases “will ordinarily be determined by the factfinder, and not as a matter of law.” Doe, 624 S.E.2d at 450 (citations omitted); see also Kase, 707 S.E.2d at 459. “Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer's conduct to have fallen below the acceptable standard.” Doe, 624 S.E.2d at 450.
Plaintiff argues the court should deny summary judgment as to these set of claims because LCSD failed to ensure the officers were adequately trained, where Plaintiff's expert Jefferey Noble (“Noble”) described Wilkes' initial response as “tactical recklessness,” and where LCSD failed to supervise its officers to ensure they followed the policies and procedures in place, particularly where Wilkes “failed to either follow his training or possess adequate training to respond appropriates and oversee the other three officers.” [See ECF No. 47 at 28-30 (citing ECF No. 47-16 at 27:15-19)]. Plaintiff further argues his claims are supported by the use of a chokehold on Decedent. See id. Plaintiff generally argues that “[t]he fact that the encounter was initiated by LCSD's ranking officer at the scene and that the same officer was directly involved in the use of deadly force could cause a jury to conclude that LCSD has permitted the use of these impermissible tactics and encouraged them by promoting Wilkes to a position of authority over the other responding officers.” See id. In sum, Plaintiff argues “there is evidence in the record from which the jury could conclude that the deputies involved in Mr. Gagliani's death used improper tactics as a result of improper training and/or supervision.” Id.
Noble also testified, however, “this isn't a case where I'm criticizing their training.” [ECF No. 51-4 at 32:18-19].
There is no evidence in the record that LCSD was aware that individual defendants created an “undue risk of harm to the public,” that the training provided by LCSD was deficient in some way, or that LCSD “knew or should have known of the necessity to exercise control” over the individual defendants. Instead, Plaintiff appears to argue that because of what occurred, a jury could conclude LCSD failed in their responsibilities, indicating that no further evidence is needed.
This is insufficient to support a claim for negligent hiring, training, or supervision. See, e.g., Wingate v. Byrd, C/A No. 4:13-03343-BHH-KDW, 2016 WL 8711435, at *9 (D.S.C. Aug. 19, 2016) (“Rather, courts have examined specific evidence regarding an employee's history, behaviors, or pattern of behavior when examining causes of action for negligent supervision or negligent training”) (collecting cases), report and recommendation adopted, 211 F.Supp.3d 816 (D.S.C. 2016), opinion vacated in part on reconsideration, C/A No. 4:13-3343-BHH, 2016 WL 7012962 (D.S.C. Dec. 1, 2016); Kase, 707 S.E.2d at 459 (examining employee's poor driving record, insubordinate behavior, marital difficulties and resulting financial problems, and prior erratic behavior before holding that employer was not liable under negligent supervision and retention causes of action); Doe by Doe v. Greenville Hosp. Sys., 448 S.E.2d 564 (S.C. Ct. App. 1994) (holding hospital had prior notice of inappropriate sexual behavior on part of male employee so as to be liable for negligent hiring and supervision where the hospital was aware of allegations of inappropriate behavior even though employee denied it); see also James v. Kelly Trucking Co., 661 S.E.2d 329, 331 (S.C. 2008) (acknowledging that often pieces of evidence “such as a prior driving record, an arrest record, or other records of past mishaps or misbehavior by the employee” are offered to prove a negligent hiring, training, supervision, or entrustment claim).
Accordingly, the undersigned recommends dismissal of these claims as to LCSD.
ii. Negligence Claims as to Equipment
Plaintiff has failed to provide any evidence that any of the equipment used by the individual defendants was not functioning properly, and Sheriff Defendants have submitted evidence otherwise. [See ECF No. 51-5 at 122:24]. Plaintiff has also failed to respond to Sheriff Defendants' motion for summary judgment as to this issue. [See ECF No. 40-1 at 26-27, ECF No. 47]. Accordingly, the undersigned recommends dismissal of this claim as to LCSD.
iii. Gross Negligence-Wrongful Death and Survival
Sheriff Defendants state that “LCSD will not be moving for summary judgment as to Plaintiff's gross negligence claim as a question of fact exists due to the testimony of Defendants Wilkes, Kinder, and Thomas and certain statements heard on the body worn camera of Defendant Thomas.” [ECF No. 40-1 at 27]. Accordingly, the undersigned recommends this claim survives Sheriff Defendants' motion for summary judgment.
iv. Grossly Negligent Provision of Medical and Lifesaving Care
To maintain an action for negligence, “a plaintiff must show: (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached that duty by a negligent act or omission; (3) the defendant's breach was the actual 5 and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damages.” Roddey v. Wal-Mart Stores E., LP, 784 S.E.2d 670, 675 (S.C. 2016) (citation omitted). “Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.” Etheredge v. Richland Sch. Dist. One, 534 S.E.2d 275, 277 (S.C. 2000) (citation omitted). It is the failure to exercise even “slight care.” Id.; see also Hollins v. Richland Cty. Sch. Dist. One, 427 S.E.2d 654, 656 (S.C. 1993) (defining gross negligence as “the absence of care that is necessary under the circumstances”) (citations and emphasis omitted).
Plaintiff alleges in his operative complaint that Sheriff Defendants “departed from the duties of care required of law enforcement officers and the agencies that can and do provide life-saving services to those individuals it interacts with.” [ECF No. 23 ¶ 66]. In briefing, Plaintiff argues that even though the officers responded to a mental health check, they did not call EMS until after Decedent had stopped breathing. [ECF No. 47 at 31]. Similarly, Plaintiff argues that “a jury could find from the video that it was grossly negligent for the officers to fail to call EMS when they apparently determined that Mr. Gagliani needed to be restrained.” Id.
Plaintiff also argues that “[t]o the extent that the Defendants assert that they initiated such restraint in an attempt to provide medical and/or lifesaving assistance to Mr. Gagliani as he was experiencing a medical crisis, a jury could certainly find that the manner in which Defendants provided such ‘assistance' was grossly negligent in that their repeated administration of Electronic Control Devices, choking, punching and restricting Mr. Gagliani's airway ultimately resulted in his death.” [ECF No. 47 at 31]. However, the record indicates the officers sought to restrain Decedent in order for him to be evaluated by others, not to personally provide medical care.
For the reasons stated above, the undersigned does not find that the officers acted in a grossly negligent manner by not calling EMS sooner. The evidence does not show the requisite absence of care by the officers. Here, Plaintiff has failed to offer any evidence or argument that it was incumbent upon the officers to contact EMS sooner than they did.
Plaintiff argues that because Sheriff Defendants “argued only for dismissal [of Plaintiff's gross negligence in providing medical care claim] under the [South Carolina Medical Malpractice Act] and Notice of Intent [pursuant to S.C. Code 15-36-100(G)(1)] grounds,” and because these grounds are inapplicable in the present instance, summary judgment is not appropriate. [ECF No. 47 at 30-31]. Even though Sheriff Defendants characterize Plaintiff's claim as a medical malpractice claim, they also generally argue that Plaintiff has failed to establish the duty of care owed, the breach, or resulting damages. [See ECF No. 40-1 at 28; see also ECF No. 51 at 6 n.7 (relying on SLED's reply as to this claim); ECF No. 48 at 5 (SLED arguing “[e]ven if Plaintiff is not attempting to bring a medical malpractice action, this cause of action is subject to dismissal as Plaintiff has failed to provide any qualified evidence to establish the standard of care for the incident in question, nor any qualified evidence establishing that the applicable standard of care was breached.”)]. Notwithstanding, for the reasons stated above, and to the extent necessary, it is recommended that this claim be dismissed sua sponte. See, e.g., Chastain v. S.C. Hi-way Patrol, C/A No. 5:10-2453-TLW-JRM, 2012 WL 761665, at *4 (D.S.C. Jan. 24, 2012) (recommending dismissal of negligence claim sua sponte where “Defendants have not specifically addressed such a claim.”), report and recommendation adopted, C/A No. 5:10-2453-TLW-JRM, 2012 WL 761653 (D.S.C. Mar. 7, 2012).
Accordingly, the undersigned recommends the district judge grant Sheriff Defendants' motion for summary judgment as to this claim.
2. SLED's Motion for Summary Judgment
Plaintiff has alleged five claims against SLED. Plaintiff “makes no return as to SLED's motion for summary judgment as to Section 1983 claims only” and concedes SLED did not provide equipment to Markey in connection with the incident, therefore the claim concerning this issue should be dismissed as to SLED. [ECF No. 46 at 10, 12-13]. Accordingly, the undersigned recommends the district judge grant SLED's motion for summary judgment as to Plaintiff's second and third causes of action as to SLED.
Plaintiff has three remaining claims against SLED: his first cause of action for grossly negligent hiring, training, and employment; fifth cause of action for gross negligence-wrongful death and survival; and sixth cause of action for grossly negligent provision of medical and lifesaving care.
As a preliminary matter, the parties dispute whether state constables are employees of SLED such that it can be held liable for the employees' actions taken within the scope of their employment. The court need not resolve this issue because Plaintiff's claims against SLED should be dismissed, even assuming SLED could be held liable for Markey's actions.
a. Grossly Negligent Hiring, Training, and Employment
First, as to the claim of negligent hiring, training, and employment, Plaintiff argues SLED is responsible for Markey and “failed to ensure that Markey attended the required coursework” of 46.5 hours of training in courses designed by SLED, including a 1.5-hour class entitled “Handling the Mentally Ill.” [ECF No. 46 at 7-8]. Although Plaintiff has submitted evidence Markey received 60.5 hours of training, Plaintiff argues “nothing in Markey's file indicates that he received the mental health training ....” Id. at 8, see also id. at 9 (“SLED failed to verify compliance with these requirements, and unfortunately State Constable Markey responded to a call for which he was not qualified and contributed to the death of Mr. Gagliani”)].
Plaintiff also argues SLED failed to “exercise its supervisory role in connection with his commission.” Id. at 9. Plaintiff argues SLED policy is that constables are not permitted to supplant trained police officers, but SLED did not inquire how LCSD was utilizing Markey, including that Markey was working close to 2,000 hours per year with LCSD for several years prior to the incident.
Plaintiff's evidence is insufficient to maintain a claim for grossly negligent hiring, training, and employment against SLED as to Markey. As with Plaintiff's same claim against LCSD above, there is no evidence in record that SLED was aware that Markey created an “undue risk of harm to the public” or that SLED “knew or should have known of the necessity to exercise control” over Markey. Also, Plaintiff provides no evidence connecting the one class Markey allegedly missed, or the hours he worked that he allegedly was not allowed to, and any specific action taken by Markey. See, e.g., Rothman v. Myrtle Beach Police Dep't, C/A No. 4:04-00060-TLW-JRM, 2007 WL 708805, at *9 (D.S.C. Feb. 28, 2007) (“Based on the evidence presented, plaintiffs have not shown that the allegation of failure to properly train the officers was closely related to the death of Jeffrey Rothman.”); Brooks v. S.C. Dep't of Corr., C/A No. 2:18-721-TMC, 2020 WL 3097356, at *3 (D.S.C. June 9, 2020) (“with respect to Plaintiff's . . . failure to train claim[], the magistrate judge found no evidence . . . that Lewis failed to train his subordinates or that such failure was linked in any way to Plaintiff's injuries”).
Accordingly, the undersigned recommends the district judge grant SLED's motion for summary judgment as to this claim.
b. Wrongful Death and Survival
Pursuant to S.C. Code Ann. § 15-51-10, one may recover damages for the wrongful death of a person “[w]henever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages ....” In a survival action, damages may be recovered for a decedent's conscious pain and suffering prior to death. Smalls v. S.C. Dep't of Educ., 528 S.E.2d 682, 686 (S.C. Ct. App. 2000).
To prevail on a wrongful death claim in South Carolina, a plaintiff must establish causation. Land v. Green Tree Servicing, LLC, 140 F.Supp.3d 539, 545 (D.S.C.2015) (“[T]he plaintiff in a wrongful death action must establish that the wrongful act or negligence of the defendant caused the death of the decedent. The standard tort principles that apply to causation in negligence cases apply to any action for wrongful death regardless of the basis of the underlying cause of action.”); see also Ford v. City of Myrtle Beach, C/A No. 9:18-00459-SAL, 2020 WL 5362131, at *6 n.6 (D.S.C. Sept. 8, 2020) (“the court is compelled to conclude that its analysis on proximate cause as to the wrongful death claim applies with equal force to the survival claim”) (citing McKnight v. S.C Dep't of Corrs., 684 S.E.2d 566, 572 (S.C. Ct. App. 2009) (“The trial court's findings on proximate cause and duty apply to the survival action as well ....”)). “Ordinarily, establishing proximate cause requires proof of (1) causation-in-fact, and (2) legal cause, which is proved by establishing foreseeability.” Wickersham v. Ford Motor Co., 738 Fed.Appx. 127, 131 (4th Cir. 2018) (citing Baggerly v. CSX Transp., Inc., 635 S.E.2d 97, 101 (S.C. 2006)).
SLED argues Markey is not an employee and there is no evidence that SLED, in administering, maintaining, and controlling the state constable program, allegedly improperly, proximately caused “injuries sustained by Plaintiff and his decedent.” [See ECF No. 39-1 at 9-11 (citing Hanselmann v. McCardle, 267 S.E.2d 531, 533 (S.C. 1980) (holding that negligence is not actionable unless it is a proximate cause of the injuries, and it may be deemed a proximate cause only when without such negligence the injury would not have occurred or could have been avoided))].
Plaintiff does not directly address SLED's proximate-cause argument, but disputes that Markey was not an employee, references “SLED's extensive oversight of Markey's qualification, training and certification,” and argues that “[b]eyond the specific Constable policies and procedures mandated by SLED, Markey was also required to follow SLED's own policies and procedures.” [ECF No. 46 at 11].
Plaintiff has not established causation sufficient to support a wrongful death/survival claim against SLED. Plaintiff had presented no evidence that SLED's allegedly negligent conduct-in not requiring Markey to attend a class and not tracking his hours-was a direct and proximate cause of any of Plaintiff's damages. See Wickersham v. Ford Motor Co., 853 S.E.2d 329, 332 (S.C. 2020) (holding that “foreseeability is considered the touchstone” of proximate cause and “it is determined by looking to the natural and probable consequences of the defendant's act or omission”) (citations omitted)).
Accordingly, the undersigned recommends the district judge grant SLED's motion for summary judgment as to this claim.
c. Grossly Negligent Provision of Medical and Lifesaving Care
Sheriff Defendants and SLED, in their respective motions for summary judgment, make the same arguments as to Plaintiff's claims for grossly negligent provision of medical and lifesaving care. [See ECF Nos. 39, 40, 48, 51]. For the reasons stated above, the undersigned recommends SLED's motion for summary judgment be granted as to this claim.
III. Conclusion and Recommendation
Accordingly, the undersigned recommends the district judge grant SLED's motion for summary judgment, dismissing SLED from this action [ECF No. 39], and grant in part and deny in part Sheriff Defendants' motion for summary judgment. [ECF No. 40]. More specifically, the undersigned recommends dismissal of Plaintiff's (1) federal claims against LCSD and Kinder, Wilkes, Markey, and Thomas, in their official capacities, (2) Fourth Amendment excessive force claim for placing weight on Decedent's neck only as to Markey, (3) Fourteenth Amendment deliberate indifference claim, and (4) SCTCA claims except for Plaintiff's wrongful death/survival claim as to LCSD. The undersigned further recommends allowing Plaintiff's remaining Fourth Amendment excessive force claims against Kinder, Wilkes, Markey, and Thomas in their individual capacities to proceed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).