Opinion
C/A No.: 1:17-2930-TLW-SVH
07-03-2019
LaKrystal Coats, as Personal Representative of the Estate of Demetric Cowan, Plaintiff, v. Ray Pope, in his individual capacity; FNU Nichols, in his individual capacity; FNU Cardarelli, in his individual capacity; FNU White, in his individual capacity; Gerald Brooks, in his official Capacity as Chief of Police of the City of Greenwood; Sidney Montgomery, in his individual capacity; Roy Murray, in his individual capacity; Pamela Osborne, in her individual capacity; and Tony Davis, in his official capacity as Sheriff of Greenwood County, Defendants.
REPORT AND RECOMMENDATION
LaKrystal Coats ("Plaintiff"), as personal representative of the estate of her husband Demetric Cowan ("Decedent"), filed this action pursuant to 42 U.S.C. § 1983 and South Carolina state law, alleging constitutional violations and tort law causes of action arising from Decedent's arrest and subsequent detention and death at Greenwood County Detention Center ("GCDC"). Plaintiff filed this case against the following City of Greenwood police officers in their individual capacities: Officer Ray Pope ("Officer Pope"), Sergeant Steven Nichols ("Sergeant Nichols"), Officer Daniel Cardarelli ("Officer Cardarelli"), and Officer Brandon White ("Officer White") (collectively "Arresting Officers"). Plaintiff also sues the following GCDC officers in their individual capacities: Sergeant Sidney Montgomery ("Sergeant Montgomery"), Officer Roy Murray ("Officer Murray"), and Officer Pamela Osborne ("Officer Osborne") (collectively "GCDC Officers"). In addition, Plaintiff sues Gerald Brooks ("Police Chief") in his official capacity as City of Greenwood Chief of Police and Tony Davis ("Sheriff") in his official capacity as Sheriff of Greenwood County (all defendants collectively "Defendants").
This matter is before the court on motions for summary judgment by Sergeant Montgomery, Officer Murray, and Sheriff [ECF No. 32]; Arresting Officers and Police Chief [ECF No. 33]; and Officer Osborne [ECF No. 35]. Having been fully briefed [ECF Nos. 38, 41, 43, 44], the motions are ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendants' motions for summary judgment. I. Factual Background
The following facts are taken in the light most favorable to Plaintiff, to the extent supported by the record.
A. The Traffic Stop
On March 12, 2016, at 9:20 p.m., Officer Pope initiated a traffic stop after observing Decedent's car cross the center lane. [Pope Aff. at ¶ 3 (available at ECF No. 33-2)]. After Decedent stopped the car, Officer Pope and Sergeant Nichols smelled marijuana emanating from the car. Id. at ¶¶ 5-6. They removed Decedent from the car after he repeatedly refused to exit or to take his hands out of his pockets, and they placed him face-down on the ground. [Id.; Pope Dep. 14:16-15:2 (available at ECF No. 38-4)].
To the extent Defendants' affidavits and statements are numbered by paragraph, the paragraph is cited. Otherwise, the citation refers to the page.
While on the ground, Decedent continued to resist the officers' instructions and, prior to being handcuffed, he attempted to place a bag of ecstasy 47 pills under the car. Pope Aff. at ¶ 8. While face-down and being handcuffed, Decedent stated he was choking, although no officer was restricting his airway or otherwise harming him. [Nichols Stmt. at 2 (available at ECF No. 38-6)]. Arresting Officers assumed Decedent was not choking and assisted him to his feet. Pope Dep. 15:9-11.
Officer Pope checked Decedent's mouth, toward the back and underneath the tongue, primarily for evidence of additional marijuana, and did not observe anything unusual. Pope Aff. at ¶ 10. Sergeant Nichols spoke with Decedent for several minutes, then placed him in the back seat of Officer Cardarelli's patrol car. [Nichols Stmt. at 2; Nichols Dep. 25:16-18 (available at ECF No. 38-5)]. At that time, Decedent was talking and breathing normally and indicated he was claustrophobic, and the officers ensured the window was rolled down during the transport to GCDC. Nichols Dep. 25:12-14; Pope Dep. 19:21-24, 21:11-14; Nichols Stmt. at 2.
A search of Decedent's person and car revealed marijuana, the 47 ecstasy pills, a set of scales, and cash. Pope Aff. at ¶¶ 8-9. Officer Pope issued Decedent citations for disorderly conduct and resisting arrest and informed Decedent he would be seeking warrants for possession with intent to distribute ecstasy and possession of marijuana. Id. at ¶ 11.
B. The Detention Center
At 10:07 p.m., Sergeant Montgomery booked Decedent into GCDC. [Montgomery Aff. at 1 (available at ECF No. 32-2)]. During booking, Sergeant Montgomery questioned Decedent regarding his medical history and then-current condition and completed a Medical Staff Receiving Screening Form. Id. at 2-3, 5. Decedent informed Sergeant Montgomery he had smoked a small quantity of marijuana and taken a small quantity of ecstasy earlier in the day. Id. at 3, 5. Throughout booking, Decedent answered questions appropriately, signed documents, and exhibited normal behavior. Id. Because of the time of day, no medical personnel were present in GCDC. [ECF No. 38 at 4].
At 10:28 p.m., Decedent was placed in Holding Cell One. Montgomery Aff. at 3. Holding Cell One and Holding Cell Two are adjacent to each other and located directly across from the control room. [Montgomery Dep. 29:9-17 (available at ECF No. 38-7)]. Both cells have large windows, allowing officers in the control room to directly observe the detainees inside. Montgomery Aff. at 3.
At 1:00 a.m., Decedent asked Officer Murray to turn off the lights in Holding Cell One. [Murray Aff. at 2 (available at ECF No. 32-3)]. Officer Murray informed Decedent he could not turn off the lights, and Decedent appeared to go to sleep. Id.
At 3:06 a.m., another inmate, Duane Terry ("Inmate"), was placed in Holding Cell One with Decedent. [Montgomery Aff. at 3; Inmate Stmt. at 1 (available at ECF No. 38-11)]. Inmate and Decedent had a brief conversation and Decedent spoke coherently. Inmate Stmt. at 1. Approximately thirty minutes later, Decedent told Inmate he did not feel well. Id. Decedent began to sweat heavily and visibly shake. Id. He attempted to vomit in the toilet and asked Inmate to summon a guard. Id. Decedent then informed Inmate he had swallowed "a bag of cocaine." Id.
Around 3:30 a.m., Inmate told Sergeant Montgomery Decedent had vomited. Montgomery Aff. at 3. Sergeant Montgomery instructed Officer Murray to check on Decedent and isolate him in Holding Cell Two. [Murray Dep. 13:8-11 (available at ECF No. 38-12)]. Officer Murray observed Decedent crawling on the floor of Holding Cell One, "acting strange" and shaking. Murray Aff. at 3. Officer Murray directed Decedent to stand up, and Decedent refused. Murray Dep. 13:13-17. Officer Murray opened the cell door, and Decedent began to crawl out of Holding Cell One and into Holding Cell Two with a dazed look on his face. [Murray Incident Rep., ECF No. 38-14 at 2]. Decedent told Murray he was "high" and had been using drugs all day. [ECF No. 1 at 5]. Sergeant Montgomery overheard Decedent's statement. Id. Decedent mumbled and signaled to Officer Murray he would like some water. Murray Dep. 13:24-14:2. Officer Murray gave Decedent a cup of water and secured him in Holding Cell Two. [Murray Incident Rep., ECF No. 38-14 at 2]. Officer Murray created an observation log and began preparing an incident report regarding Decedent's perceived detoxing. [Murray Dep. 15:9-12; Murray Incident Rep., ECF No. 38-14 at 1 (showing title of incident report as "Inmate Detoxing"); Observation Log, ECF No. 38-15 at 1]. At 3:45 a.m., Officer Murray noted on the observation log that Decedent was "laying down." [ECF No. 38-15 at 1].
Approximately ten minutes later, Officer Murray observed Decedent lying on the floor and shaking. [Murray Incident Rep., ECF No. 38-14 at 2]. Officer Murray, unsure if Decedent was pretending to have a seizure, instructed Decedent to stop shaking. Murray Dep. 21:15-22:8. When Decedent did not reply, Officer Murray set up a camera in the control room window with a clear view of Decedent inside Holding Cell Two. Murray Dep. 18:25-19:24. Officer Murray returned to the control room and continued preparing the incident report while Sergeant Montgomery monitored Decedent. Murray Dep. 19:25-20:19.
The camera began recording at 3:55 a.m. [Camera Video at 00:01 (available at ECF No. 38-1)]. At 3:56 a.m., Officer Osborne opened Holding Cell One and escorted Inmate out of the cell to call his wife. [Id. at 00:02; Osborne Dep. 14:23-16:9 (available at ECF No. 38-18)]. Officer Osborne asked Officer Murray what was wrong with Decedent and Officer Murray told her Decedent was detoxing. Osborne Dep. 23:1-5. At 3:58 a.m., while Inmate spoke to his wife, Officer Osborne observed Decedent lying on the floor of Holding Cell Two, shaking in a way that resembled a seizure. Camera Video at 02:57; Osborne Dep. 21:22-22:25. From 3:55 a.m. until approximately 4:09 a.m., Decedent's arms lifted and his body seized and shook for several seconds every minute. Camera Video at 00:12-13:47. Then his arms fell back to the floor and he lay motionless until the next episode. Id.
The court takes judicial notice that daylight savings time began on March 13, 2016. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (court may "properly take judicial notice of matters of public record"). Thus, the time stamp on the video is one hour behind.
At 4:01 a.m., Officer Osborne returned Inmate to Holding Cell One and told Officer Murray they needed to position Decedent away from the wall so he would not hit his head. Id. at 05:47; Osborne Dep. 40:20-41:10. Inmate informed Officer Osborne Decedent had vomited around the toilet in Holding Cell One. Osborne Dep. 41:22-42:8. Officer Osborne advised Officer Murray Decedent had vomited and said they needed to re-position him from his back to his side in case he vomited again to prevent him from choking. Id. 42:13-25.
At 4:03 a.m., Officer Osborne and Sergeant Montgomery opened Holding Cell Two and checked on Decedent. Camera Video at 07:58. At Sergeant Montgomery's instruction, Officer Murray pointed the camera at the floor from 4:03 a.m. to 4:04 a.m. Id. at 07:58-08:42. Neither Officer Osborne nor Sergeant Montgomery entered Holding Cell Two at that time. [SLED Add. to Osborne Rep., ECF No. 38-22 at 2 (noting GCDC's surveillance camera captured Holding Cell Two's door and "no one entered the cell at the time the body camera was pointed down at the floor")]. Sergeant Montgomery instructed Decedent to "stop faking it." Id. at 1. Sergeant Montgomery observed Decedent breathing, moving, and attempting to speak. Montgomery Dep. 66:4-22, 68:2-6.
From 4:04 a.m. to 4:05 a.m., Officer Osborne cleaned the vomit in Holding Cell One while Sergeant Montgomery spoke with Inmate, held the Holding Cell One door open, and watched Decedent. Camera Video at 08:45-09:53.
At 4:07 a.m., Officer Osborne and Sergeant Montgomery entered Holding Cell Two, moved Decedent away from the wall, and placed Decedent on his side on a mat. Osborne Dep. 44:9-16; Camera Video at 11:52-13:08. When they rolled Decedent onto his side, vomit fell from the corner of Decedent's mouth. Osborne Dep. 44:17-22. Sergeant Montgomery noted Decedent's pulse was slow and instructed Officer Osborne to obtain a cold, wet towel so he could clean Decedent's face and try to elicit a response from him. Montgomery Dep. 67:4-9.
Sergeant Montgomery and Officer Osborne continued to tend to Decedent until 4:12 a.m., when Sergeant Montgomery left Holding Cell Two to notify the shift lieutenant, who was not in the detention center, of the situation. Camera Video at 16:30; Osborne Dep. 45:8-12. Officer Osborne remained with Decedent and continued to check his pulse. Camera Video at 16:53-17:48. At 4:13 a.m., Officer Osborne indicated she could not find a pulse and did not observe Decedent's stomach rising and falling. Id. at 17:48. Officer Murray activated emergency medical services ("EMS") at 4:13 a.m. Id. at 18:14. Officer Murray told the EMS dispatcher the officers believed Decedent had taken drugs before arriving at GCDC and may be detoxing. Id. Officer Osborne continued to check Decedent's pulse, pat his face, and attempt to elicit a response. Id. at 18:14-20:14. At 4:15 a.m., Sergeant Montgomery called the shift lieutenant. [Murray Incident Rep., ECF No. 38-14 at 3]. At 4:18 a.m., EMS arrived. Id. Decedent's death certificate lists his time of death as 4:17 a.m. [Death Certificate, ECF No. 32-6 at 1].
The coroner determined Decedent died from an apparent gran mal seizure followed by cardiac arrest due to cocaine toxicity. [Autopsy Rep., ECF No. 32-4 at 3-4]. A toxicology report found 6.4 mg/L cocaine in Decedent's system, along with cocaine metabolite and tetrahydrocannabinol. [ECF No. 32-5 at 3].
Plaintiff alleges causes of action for Fourteenth Amendment substantive due process violations, negligence, gross negligence, loss of filial services, infliction of emotional distress, and conscious pain and suffering. [See ECF No. 1 at 6-10]. She requests monetary damages. Id. at 11. 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 non-moving 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Fourteenth Amendment Claims
Plaintiff alleges Arresting Officers and GCDC Officers violated Decedent's substantive due process rights by delaying or failing to provide medical care. [ECF No. 1 at 6].
As a pretrial detainee, Decedent was entitled to adequate medical care under the Fourteenth Amendment. Martin v. Gentile, 849 F.2d 863, 866 (4th Cir. 1988) (explaining denial of medical care by state officials can give rise to claims under the Fourteenth Amendment's Due Process Clause); City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (holding pretrial detainees have at least the same protections under the Fourteenth Amendment as convicted prisoners have under the Eighth Amendment). To establish a constitutional violation, Plaintiff must show Defendants exhibited "deliberate indifference" to Decedent's "serious medical needs." Farmer v. Brennan, 511 U.S. 825, 835 (1994); Wilson v. Seiter, 501 U.S. 294, 297 (1991). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle v. Gamble, 429 U.S. 97, 105-06 (1976), and "more than ordinary lack of due care for the prisoner's interests or safety," Whitley v. Albers, 475 U.S. 312, 319 (1986). Rather, Plaintiff must show Defendants were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists" and that Defendants actually drew that inference. Farmer, 511 U.S. at 837. Thus, "[i]f an officer fails to act in the face of an obvious risk of which he should have known, but did not, the officer has not violated the Eighth or Fourteenth Amendments." Watkins v. City of Battle Creek, 273 F.3d 682, 686 (6th Cir. 2001).
a. Arresting Officers
Plaintiff alleges Arresting Officers "were on notice that [Decedent] had ingested illegal substances (drugs) but did not seek medical care for him or inform the booking officers of this information." [ECF No. 1 at 6]. Arresting Officers assert the facts do not support Plaintiff's allegations and Plaintiff cannot show deliberate indifference. [ECF No. 33-1 at 4]. In support, Arresting Officers rely on Brown v. Middleton, 362 F. App'x 340 (4th Cir. Jan. 15, 2010) (unpublished).
In Brown, officers discovered a bag of cocaine inside an arrestee's mouth during a traffic stop. Id. at 342. The officers asked the arrestee whether he had ingested any of the drug and cautioned him he would need immediate medical care if he had. Id. The arrestee admitted to smoking several marijuana cigars laced with cocaine earlier in the day, but denied ingesting cocaine and declined medical care. Id. The arrestee "appeared calm, acted in a normal manner, and carried on friendly conversation with the officers." Id. When the arrestee arrived at the detention center, officers again asked and he denied having ingested any drugs. Id. at 342-43. Detention center officers noted arrestee was "acting calm and compliant, without the abnormal behavior that is normally associated with cocaine use." Id. at 343. Approximately one hour after his arrival at the detention center, arrestee fell out of a shower and suffered a series of seizures that rendered him unconscious. Id. The arrestee received immediate medical attention, but never regained consciousness and died several days later from cerebral hypoxia due to subacute myocardial infarction secondary to acute cocaine toxicity. Id.
In assessing whether the arresting officers were deliberately indifferent to the arrestee's serious medical need, the Fourth Circuit found the evidence did "not support the inference that the arresting officers knew that [the arrestee] was in need of urgent medical attention as a result of cocaine consumption." Id. at 344. Specifically, the court noted (1) the officers did not see the arrestee ingest any cocaine; (2) the arrestee did not have any tell-tale signs in or around his mouth of cocaine ingestion; (3) the arrestee admitted to earlier drug use, but did not admit to having swallowed cocaine; and (4) throughout his interactions with the officers and during the several hours prior to his collapse, the arrestee acted normally and did not show any of the behavioral symptoms associated with cocaine ingestion. Id. at 344-45. On this record, the court concluded the evidence did "not create a triable issue of fact concerning whether the arresting officers in fact knew that [the arrestee] was in need of urgent medical attention" and, thus, "did not sufficiently support the claim that the arresting officers violated [the arrestee's] constitutional rights." Id. at 345 (emphasis in original).
Notably, the court also found the evidence "insufficient to support the inference that [the detention center officer] knew [the arrestee] was in need of urgent medical attention" and, thus, insufficient to "create a triable issue of fact as to whether [the detention center officer] was 'deliberately indifferent.'" Id. at 345-46 (emphasis in original).
In considering the Brown elements, the court finds Plaintiff cannot support a claim for violation of Decedent's constitutional rights. Arresting Officers did not see Decedent ingest cocaine and had no reason to suspect Decedent had handled or come into contact with cocaine. Arresting Officers found marijuana and ecstasy on Decedent and in his car after they stopped his car and smelled marijuana. Further, despite telling officers he was choking, Decedent continued to speak, breathe, and act normally throughout the encounter. Arresting Officers had no reason to suspect Decedent had an urgent medical need due to having ingested a bag of cocaine, and the evidence is insufficient to create a triable fact as to whether Arresting Officers were deliberately indifferent to Decedent's serious medical need. Accordingly, the undersigned recommends granting Arresting Officers summary judgment as to Plaintiff's Fourteenth Amendment claim.
b. GCDC Officers
Likewise, GCDC Officers had no reason to suspect Decedent had ingested cocaine. He denied having consumed anything other than a small quantity of marijuana and a small quantity of ecstasy earlier in the day prior to the traffic stop. Decedent did not exhibit symptoms until 3:30 a.m., when he advised his cellmate that he did not feel well and vomited in Holding Cell One. Beginning at 3:30 a.m., GCDC Officers closely monitored Decedent's condition and tended to him and activated EMS at 4:13 a.m. Decedent died four minutes later. Plaintiff alleges GCDC Officers unduly delayed Decedent's access to medical care, stating GCDC Officers "were in the immediate vicinity and were aware that [Decedent] was experiencing extreme physical pain, but took no action to provide or request medical care for [Decedent], disregarding the obvious risk to his health." [ECF No. 1 at 6]. GCDC Officers contend Plaintiff cannot show a causal connection between their actions and Decedent's death and, thus, cannot show deliberate indifference. [ECF No. 32-1 at 6-9; ECF No. 35-1 at 3-4].
To survive summary judgment, a detainee asserting a deliberate indifference claim "must produce evidence of a serious or significant physical injury resulting from the challenged conditions." Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993) (emphasis added). "[A] significant delay in the treatment of a serious medical condition may, in the proper circumstances, indicate a[] [constitutional] violation." Webb v. Hamidullah, 281 F. App'x 159, 166 (4th Cir. 2008) (citing Estelle, 429 U.S. at 104-05). However, a constitutional violation only occurs "if the delay results in some substantial harm." Id.; see also Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) ("Delay in medical care only constitutes Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm."); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (same); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (same). Thus, to defeat summary judgment, Plaintiff must establish that the delay in activating EMS caused Decedent substantial harm. See Webb, 281 F. App'x at 167 ("Thus, in order to defeat summary judgment on the delay issue, [Plaintiff] was obligated to establish that the delay in his surgery caused him substantial harm").
i. Plaintiff's Submission of Online Article
As evidence of causation, Plaintiff offers a three-page online article titled "Sudden Cardiac Death of a Body Packer Due to Cocaine Cardiotoxicity." [ECF No. 38-23]. In the article, the authors examine "an uncommon case of sudden cardiac death of a cocaine body packer due to cocaine cardiotoxicity," recommend "sudden onset of chest pain or palpitation in any international traveler should be approached with suspicion of body packing," and conclude "[e]arly intervention and detection of drug body packs in such cases could possibly save a life." Id at 2, 5-6.
To the extent Plaintiff also relies on a report by corrections expert, James Aiken, Aiken specifically stated in his deposition he was not offering an opinion regarding the cause of Decedent's death or what interventions could have changed the outcome. Aiken Dep. 96:19-97:12 (available at ECF No. 38-24). Therefore, the court finds Aiken's report irrelevant to the issue of causation and possible interventions.
GCDC Officers assert Plaintiff's evidence is both irrelevant and inadmissible. [ECF No. 44 at 1]. As presented, Plaintiff's article constitutes inadmissible hearsay. See, e.g., Perry v. Jones, C/A No. 3:14-71, 2016 WL 2747262, at *2 (E.D. Va. May 10, 2016) (finding unauthenticated medical article and front page of brochure on diabetes inadmissible hearsay); Hogge v. Stephens, C/A No. 3:09-582, 2011 WL 2161100, at *6 (E.D. Va. June 1, 2011) ("Plaintiff submits several medical articles . . . . However, these documents are not authenticated and constitute hearsay."). While the Federal Rules of Evidence provide a hearsay exception for learned treatises, such documents are only admissible if they are "called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination." Fed. R. Evid. 803(18).
Plaintiff has not presented the article in conjunction with expert testimony, nor has she "either authenticat[ed] the document[] or propose[d] a method to do so at trial." Grimes v. Merritt, C/A No. JKB-11-2687, 2015 WL 5158722, at *4 (D. Md. Aug. 31, 2015) (finding when a party's evidentiary support is challenged on the grounds of admissibility, the party bears the burden of "either authenticat[ing] the document or propos[ing] a method to do so at trial"). The article's authors appear to be in Jamaica and India, and Plaintiff does not contend they have any knowledge of the facts of this case or would be available to testify at trial. Further, the article's conclusion has no bearing on the question of causation here because Decedent was not an international traveler and nothing in the record suggests he complained of chest pain prior to his death. Thus, even if the article were admissible, it would not support Plaintiff's allegations.
See ECF No. 38-23 at 1 (indicating Parthasarathi Pramanik is associated with the Institute of Forensic Science and Legal Medicine Ministry of National Security, Jamaica and Raghvendra Kumar Vidua is associated with the Department of Forensic Medicine AIIMS BHOPAL, India).
In response to Plaintiff's proffered evidence, GCDC Officers provide an affidavit and report from Dr. Kim Collins, an experienced, board-certified forensic pathologist who has been qualified as an expert in forensic pathology approximately 250 times in state, federal, and military courts. [ECF No. 44-2 at 51]. Dr. Collins reviewed the relevant records and video footage from this case and found:
As evidenced by the video tapes and records, [Decedent's] actions and behavior were not those of an individual with acute cocaine toxicity. He vomited, was crawling, and, near the time of his death, was shaking. These signs are non-specific and could be due to other entities including alcohol detoxing. Only by [Decedent] reporting to the officers that he swallowed a bag of cocaine, could any life-saving treatment be administered. By the time he started shaking and became unresponsive, not only was the diagnosis impossible to confirm but it was too late to successfully treat the toxicity.Id. at 53. Dr. Collins concluded:
In my opinion, to a degree of medical certainty the signs and symptoms of toxicity in an incident such as this would appear within seconds to minutes after the rupture of the bag. The signs and symptoms to expect would be chest pain, delirium,
hyperactivity, muscle rigidity, seizures, respiratory arrest and coma. In my opinion, to a reasonable degree of medical certainty, death in such circumstances, and in this case particularly, is usually rapid and secondary to acute effects on the brain, the heart, and the respiratory system.Id. at 4.
Most probably to a degree of reasonable medical certainty even if officers had summoned emergency assistance at or around 3:30 a.m. on the morning of March 13, 2016 when [Decedent] first exhibited signs and symptoms of any type of medical issue, [Decedent's] death was most probably not preventable due to his having ingested cocaine as shown on the autopsy and by toxicology, which was not known by those on scene.
As Dr. Collins noted [ECF No. 44-2 at 52-53], Decedent did not behave in a manner that would or should have alerted any officer to believe he was in need of medical care prior to having vomited. Since being placed in the patrol car at 10:00 p.m. and prior to vomiting at 3:30 a.m., Decedent had been respectful and compliant; his behavior was not consistent with an individual with alcohol or drug intoxication or toxicity; he did not appear excited, agitated, violent, psychotic, or delirious such that an officer would have been placed on notice to his need for medical attention. Decedent had critical knowledge of having swallowed a bag of cocaine that he did not share with his caretakers. In fact, the officers did not know Decedent had swallowed a bag of cocaine until Inmate informed them—after Decedent had died.
Plaintiff fails to show GCDC Officers caused Decedent substantial harm. Thus, the evidence does not create a triable issue of fact regarding whether GCDC Officers were deliberately indifferent in waiting to activate EMS while assessing Decedent's condition, and the undersigned recommends granting GCDC Officers summary judgment on Plaintiff's Fourteenth Amendment claim.
2. Qualified Immunity
Defendants assert they are entitled to qualified immunity for Plaintiff's Fourteenth Amendment claims. 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 defendants' 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 at hand. Id.
In this case, Defendants did not violate Decedent's constitutional rights. Without any evidence demonstrating Defendants had actual knowledge that Decedent was in urgent need of medical care, Defendants cannot have violated a clearly-established constitutional right. See Brown, 362 F. App'x at 346 (affirming district court's grant of qualified immunity where neither arresting nor detention center officers had knowledge arrestee had ingested cocaine). Therefore, the undersigned recommends the district judge find Defendants are entitled to qualified immunity on Plaintiff's Fourteenth Amendment claim.
3. State Law Claims
Plaintiff's remaining claims of negligence, gross negligence, infliction of emotional distress, loss of filial services, and conscious pain and suffering fall under the South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-10, et seq. ("SCTCA"). See § 15-78-70 (stating SCTCA "constitutes the exclusive remedy for any tort committed by an employee of a governmental entity"). Pursuant to the SCTCA, "[a]n employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor" unless "it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude." Id.
Plaintiff alleges state law claims against Sheriff and Police Chief in their official capacities and Arresting Officers and Officer Osborne in their individual capacities. [See ECF No. 38 at 23 (stating Sheriff sued in his official capacity for the causes of action brought pursuant to the SCTCA), 23-24 (clarifying the complaint does not allege a § 1983 cause of action against Police Chief and Sheriff based on supervisory liability, but does contain claims pursuant to the SCTCA), 25 ("the complaint does not allege state law claims against Sergeant Montgomery and Officer Murray")].
a. Sheriff and Police Chief
Sheriff and Police Chief, sued in their official capacities, are immune from civil liability in federal court under the Eleventh Amendment. The Eleventh Amendment provides, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001).
Because Police Chief and Sheriff are employees of a South Carolina county, when acting in their official capacities, they are considered an arm of the state. See Pennington v. Kershaw Cnty., S.C., No. 3:12-1509-JFA-SVH, 2013 WL 2423120, at *4 (D.S.C. June 4, 2013) (citing S.C. Code Ann. § 4-1-10 and applying the Eleventh Amendment to a county as "a political subdivision of the State"); Chisolm v. Cannon, C/A No. 4:02-3473-RBH, 2006 WL 361375, at *5-6 (D.S.C. Feb. 15, 2006) (finding Charleston County Detention Center entitled to Eleventh Amendment immunity as an arm of the state); Cone v. Nettles, 417 S.E.2d 523, 525 (S.C. 1992) (employees of a county Sheriff are state officials).
A state cannot, without its consent, be sued in a United States district court by one of its own citizens. Edelman, 415 U.S. at 663. While the SCTCA waives immunity for certain tort claims, it expressly does not waive "the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States." S.C. Code Ann. § 15-78-20(e). Thus, Sheriff and Police Chief are immune from Plaintiff's claims. See Huang v. Board of Governors of University of North Carolina, 902 F.2d 1134, 1138 (4th Cir. 1990) (finding Eleventh Amendment bars pendant state monetary damages claims against state defendants as well as claims under § 1983); McCall v. Williams, 52 F. Supp. 2d 611, 614-15 (D.S.C. 1999) (finding state law claims against deputy sheriff in his official capacity barred by Eleventh Amendment). Accordingly, the undersigned recommends granting summary judgment for Sheriff and Police Chief as to all of Plaintiff's claims.
b. Arresting Officers and Officer Osborne
Plaintiff does not allege Arresting Officers or Officer Osborne acted outside the scope of their official duties during Decedent's arrest or detention. Thus, to avoid the individual officers' immunity under the SCTCA, Plaintiff must show their actions constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. See S.C. Code Ann. § 15-78-70(b). Plaintiff's claims of negligence and gross negligence fail because they lack the requisite element of intent. See Smith v. Ozmint, 394 F. Supp. 2d 787, 792 (D.S.C. 2005) (finding negligence claim did not include "intent to harm" element and thus could not be asserted against employees in their individual capacities under SCTCA); Gallmon v. Cooper, C/A No. 3:17-59-TLW-PJG, 2018 WL 4957406, at *6-7 (April 19, 2018) (finding officer immune from gross negligence claim under SCTCA), finding adopted by 2018 WL 4403389 (D.S.C. Sept. 17, 2018).
Plaintiff's claim that Arresting Officers and Officer Osborne caused Decedent severe emotional distress also fails. To recover for intentional infliction of emotional distress, a plaintiff must establish the following elements:
(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct;Ford v. Hutson, 276 S.E.2d 776, 778 (S.C. 1981) (quoting Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (Me. 1979)). "[I]t is for the Court's determination whether the defendant's conduct may be considered so extreme and outrageous as to permit recovery, and only where reasonable minds might differ is the question one for the jury." Todd v. South Carolina Farm Bureau Mutual Ins., 321 S.E.2d 602, 609 (S.C. Ct. App. 1984), reversed in part on other grounds 336 S.E.2d 472 (S.C. 1985); see also Barber v. Whirlpool Corp., 34 F.3d 1268, 1276 (4th Cir. 1994) ("It is the court's responsibility to first determine as a matter of law whether or not the conduct was outrageous before submitting that question to the jury.").
(2) the conduct was so "extreme and outrageous" as to exceed "all possible bounds of decency" and must be regarded as "atrocious, and utterly intolerable in a civilized community";
(3) the actions of the defendant caused the plaintiff's emotional distress; and
(4) the emotional distress suffered by the plaintiff was "severe" so that "no reasonable man could be expected to endure it."
The evidence before the court shows Arresting Officers conducted a routine traffic stop and search incident to arrest and transported Decedent to the detention center. Plaintiff has not shown Arresting Officers' conduct was extreme or outrageous nor has she alleged how their conduct resulted in Decedent's alleged severe emotional distress.
The record shows Officer Osborne tended to Decedent, assisted her supervisor in caring for Decedent, and alerted other officers to call EMS when she failed to find Decedent's pulse. Plaintiff has not shown Officer Osborne's conduct was extreme or outrageous nor has she alleged how her conduct resulted in Decedent's alleged severe emotional distress.
Despite Defendants' contentions, Plaintiff may assert an action for loss of companionship under South Carolina law. Pursuant to S.C. Code Ann. § 15-75-20, "[a]ny person may maintain an action for damages arising from an intentional or tortious violation of the right to the companionship, aid, society and services of his or her spouse." Plaintiff alleges "[a]s a direct and proximate result of the acts of negligence, gross negligence, recklessness, willfulness and wantonness of the Defendants . . . , Plaintiff has suffered the loss of [Decedent's] services and earning capacity." [ECF No. 1 at 9]. However, Plaintiff fails to show Arresting Officers' or Officer Osborne's conduct rose to the level of "actual fraud, actual malice, intent to harm, or a crime involving moral turpitude." S.C. Code Ann. § 15-78-70.
Although Plaintiff labels her cause of action "loss of filial services," which is only applicable to parent-child relationships, she pleads the elements of loss of consortium under S.C. Code Ann. § 15-75-20.
Similarly, while the SCTCA does not preclude a survival action for conscious pain and suffering, see Boyle v. U.S., 948 F. Supp. 2d 577, 580 (D.S.C. 2012) ("In a survival action, the legal representative of the deceased may recover damages for the deceased's conscious pain and suffering"), the evidence does not support Plaintiff's allegation that "Defendants directed a course of extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, conscious pain and suffering to [Decedent]," [ECF No. 1 at 10].
Accordingly, the undersigned recommends granting Defendants' motions for summary judgment as to Plaintiff's state law claims. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motions for summary judgment [ECF Nos. 32, 33, 35].
IT IS SO RECOMMENDED. July 3, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
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).