Opinion
C. A. 6:21-cv-03346-JD-JDA
01-24-2024
Dianne M. Maros, Plaintiff, v. Ashley Elizabeth Cure, Greenville County, Greenville County Sheriff's Office, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on motions for summary judgment filed by Defendants. [Docs. 39; 40.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, represented by counsel, filed this action on October 13, 2021, based on Defendant Ashley Elizabeth Cure's accidental shooting of Plaintiff arising out of Cure's attempt to question and arrest Plaintiff's adult son in Plaintiff's home. [Doc. 1.] On June 30, 2023, Defendants Greenville County and Greenville County Sheriff's Office (the “County Defendants”) filed a motion for summary judgment [Doc. 39] and Cure also filed a summary judgment motion [Doc. 40]. On July 14 and 21, Plaintiff filed responses opposing the motion, and Cure subsequently filed a reply. [Docs. 41; 42; 44.] The motions are now ripe for review.
BACKGROUND
In ruling on a motion for summary judgment, this Court views the facts and reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.
The Initial Response to Plaintiff's Home
At all times relevant to the incident that is the subject of this case, Cure was a Greenville County Sheriff's Office deputy. [Doc. 41-1 at 29, 31.] On October 20, 2019, at approximately 8:00 a.m., Cure, Master Deputy Cassel, and Deputy Andrew Otto responded to Plaintiff's home regarding a call concerning an intoxicated subject involved in a nonviolent domestic situation with his mother. [Id. at 5, 10, 19-20, 56, 65.] Outside of the home, the deputies had a discussion with Plaintiff and her neighbor, Margaret Roberts, in which they were advised that Kaiser struggled with addiction, mental illness, and possibly Asperger Syndrome. [Id. at 10, 66.]
Upon entering the residence, Cure observed Kaiser in his bedroom, sitting on the edge of his bed and playing a video game. [Id. at 56.] While in the room, Cure noticed several cans of beer and two or three additional boxes of beer. [Id.] She also observed a long knife on a table. [Id.] Kaiser told the officers he had no plans to harm himself and that he wanted to be admitted to the Phoenix Center for alcoholism treatment. [Id.] During the encounter, Kaiser thanked the deputies several times for their help. [Id.]
The Return to Plaintiff's Home to Investigate the Shoplifting
Several hours later, Cure was sent to investigate an alleged shoplifting of beer from a convenience store. [Id.] Cure viewed the store's security camera footage and concluded from the footage and from the fact that the stolen beer was the same type she had seen in Kaiser's room earlier that day that it might have been Kaiser who took the beer. [Id.] Cure therefore drove to Plaintiff's home to question him. [Id. at 57; AC 2:43-3:11 .] On the way, Cure encountered Plaintiff, who reported that she had bought Kaiser a coffee and a sandwich in hopes of “sobering him up a little,” and she made reference to Kaiser “screaming at the top of his lungs.” [AC 0:57-1:42.] Cure told Plaintiff that in fact she was heading to Plaintiff's house to investigate her suspicion that Plaintiff had recently stolen beer from a Spinx store within the last two hours. [AC 2:43-3:28.]
Docket Entry Number 41-5 is a media file placeholder for a recording from Cure's body camera worn during the incident that is the subject of this case. Plaintiff submitted a DVD with this recording. The Court cites the recording in the format [AC x:xx-x:xx].
Cure proceeded through Plaintiff's neighborhood, parked near her house, and asked Plaintiff to remind her which house was hers. [AC 3:56-5:16.] Plaintiff pointed out her house and parked in front of Cure. [AC 5:17-5:21.] As Cure approached the front of the home, Kaiser emerged from the front door. [AC 5:30.] Kaiser is six feet, two inches tall and weighs 220 pounds, while Cure is five feet, two and one-half inches tall. [Docs. 40-4 at 3; 40-5.]
Cure asked Kaiser whether he had been at the Spinx earlier, and when he said that he had, Cure told him she would read him his Miranda rights and ask him some questions. [AC 5:34-5:57.] As she began reading his rights, he turned and began to reenter the home. [AC 5:58-6:02.] Cure grabbed his shirt and told him he was not to go back inside, but when he continued into the house, she followed him. [AC 6:02-6:08.]
Once both were inside, an argument ensued wherein Cure repeatedly ordered Kaiser not to walk away, and Kaiser repeatedly ordered her not to touch him. [AC 6:05-7:15.] At one point, Kaiser leaned in toward Cure in a threatening manner and angrily told her, “Don't f***ing grab me!” [AC 6:35.] Throughout the argument, Plaintiff stood nearby and told Kaiser to calm down and comply with Cure's orders, making comments such as “[Cure] is trying to help you” and “don't you talk to her like that.” [AC 6:35-6:46.] Still, Kaiser contined to yell and curse at Cure, and Cure called for back up. [AC 6:55-7:10.] At one point, Kaiser attempted to go up the steps and Cure grabbed his arm and pulled him back, with Kaiser responding by making a threatening gesture, prompting Plaintiff to exclaim, “[Kaiser], don't you dare.” [AC 7:38-8:05.] Kaiser then went about two-thirds of the way up the staircase, sat down, and refused to come down. [AC 8:05-8:30.]
Cure told Kaiser that her partner was on the way and that Kaiser would be placed under arrest. [AC 8:15-8:20.] While at the top of the stairs, Kaiser admitted that he had stolen the beer. [AC 8:35-8:50.]. About two minutes later, with back up still not having arrived, Cure proceeded up the stairs and grabbed Kaiser's arm. [AC 10:32-10:38.] Kaiser said twice, “I'm not gonna fight you,” but he also said, “I am stronger than you.” [AC 10:42-10:47.] Kaiser started down the stairs and repeated several times, “I don't want to hurt you.” [AC 10:49-11:01.] Cure asked Kaiser to turn around when he reached the bottom of the stairs, but instead he just sat down on the stairs and repeated, “I don't want to hurt you.” [AC 11:02-11:07.] As he continued to refuse to comply with her orders, Cure told Kaiser he was going to be charged with resisting arrest. [AC 11:24-11:26.] He began to ask her questions such as whether she felt powerful and whether she entered law enforcement because she liked control. [AC 11:29-13:16.] During these questions, Roberts began to approach the front doorway from the street and Cure attempted to wave her away. [AC 12:30-12:44.]
Cure then grabbed Kaiser's left arm and he stood up. [AC 13:20-13:30.] Cure told him she was placing him under arrest, and he began to resist, repeatedly yelling, “I'm asking you to do this nice” while she yelled, “Get out of the way,” apparently to Plaintiff. [AC 13:25-13:43.] The struggle increased in intensity, and Kaiser grabbed hold of Cure's arms as Plaintiff grabbed Kaiser's right arm. [AC 13:49.] Cure twice yelled, “Let go of me!” [AC 13:47-13:51.] However, Kaiser refused to let go, and he leaned his face close to Cure's and said forcefully, “I am stronger than you! I can do whatever I f***ing want!” as Cure continued to scream, “Let go of me!” [AC 13:51-13:59.] Then Kaiser pushed Cure onto her back onto a chair as the two continued to struggle, with Kaiser standing over her, Cure screaming, and Plaintiff pleading with her son to stop. [AC 14:00-14:08.]
At that point, Roberts, who had entered the home, became concerned that Kaiser was “going to kill” Cure. [Doc. 41-1 at 67.] Roberts took Kaiser's “face in [her] hands and turned his face away from” Cure. [Id.; AC 14:04-14:07.] Cure was then able to get to her feet and push Kaiser back. [AC 14:08-14:11.] As she did so, Cure drew her pistol and pointed it at Kaiser as she stood only a few feet from him, Plaintiff, and Roberts. [AC 14:11-14:12.] As Cure pointed the weapon, Roberts moved a few feet to the side, but Plaintiff remained beside Kaiser. [AC 14:10-14:18.] Plaintiff attempted to use her body and her hand to shield Kaiser, who was leaning on the steps, while Cure yelled for her to put her hands down and back up. [AC 14:10-14:23.] Kaiser said, “If you want to shoot me you f***ing shoot me.” [AC 14:15-14:18.] Cure then yelled several more times for Plaintiff to back up and put her hands down, and Cure attempted to use her left hand to push Plaintiff to the side. [AC 14:18-14:28.] Plaintiff asked Cure to wait for back up, and Cure told Plaintiff not to tell her what to do. [AC 14:18-14:24.] Cure continued to yell for Plaintiff to back up, and Cure moved in once more, apparently trying again to push Plaintiff out of the way. [AC 14:24-14:30.]
At that point, Kaiser suddenly stood up and began moving toward Cure, and Cure began to backpedal. [AC 14:30.] Plaintiff attempted to hold Kaiser back, but he broke free, saying to Cure, “You don't f***ing touch my mother in my f***ing house,” and falling briefly onto the coffee table. [AC 14:30-14:34.] Although Cure continued to move back, Kaiser quickly regained his footing and stormed toward her. [AC 14:34-14:35.] Cure fired her weapon at Kaiser as he was only about a step or two away from her. [AC 14:34-14:35.] The bullet missed Kaiser and struck Plaintiff in the abdomen. [Doc. 411 at 24, 33.]
Kaiser continued forward, made contact with Cure, bounced off her, and fell into a side table and lamp. [AC 14:35-14:38.] He quickly got up and again moved toward her. [AC 14:38-14:39.] Cure again fired her weapon at Kaiser from point-blank range and again the bullet missed. [AC 14:38-14:39; Doc. 41-1 at 24, 33.] Kaiser attacked Cure and the two struggled and fell to the floor as Kaiser repeatedly yelled, “You f***ing hurt my mother!” [AC 14:39-14:59.] After a few seconds, the struggle ended and Kaiser sat back on his knees by the front door. [AC 15:00-15:07.] Moments later, Cure's back-up officer arrived and subdued Kaiser, and Cure handcuffed him. [AC 15:08-16:26.]
This Action
In this action, Plaintiff alleges a claim against Cure under 42 U.S.C. § 1983 for violating her Fourth and Fourteenth Amendment rights. [Doc. 1 ¶¶ 170-79.] She also alleges state law claims of negligence and gross negligence against all Defendants and of negligent and gross negligent hiring, supervision, training, and retention against the County Defendants. [Id. ¶¶ 201-08.] She seeks money damages, pre- and post-judgment interest, and attorneys' fees and costs. [Id. at 26.]
Although Plaintiff originally alleged claims against the County Defendants under § 1983 [Doc. 1 ¶¶ 180-200], she has voluntarily dismissed those claims [Doc. 38].
APPLICABLE LAW
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of the State itself.'” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying ‘the specific conduct of which the plaintiff complains.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for 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 judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only 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.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) 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
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Qualified Immunity
Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not “violate clearly established rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity does not protect an official who violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id. Further, qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
“In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). The first concerns whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the officer's conduct violated a federal right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The second “asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional.” Smith, 781 F.3d at 100. For purposes of this analysis, a right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
District court judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a court decides in the negative the first prong it considers-i.e., the court decides the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation-the court need not consider the other prong of the qualified immunity analysis. See id. at 243-45; Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (holding the court “need not formally resolve” the constitutional question of “whether the [plaintiffs] were arrested without probable cause” to address the plaintiffs' § 1983 claim; the court stated that it “need only determine whether [the defendant]-a deputy sheriff performing within the normal course of his employment-acted with the objective reasonableness necessary to entitle him to qualified immunity”).
DISCUSSION
Federal Claim Against Cure
Plaintiff's § 1983 claim against Cure alleges that Cure violated Plaintiff's Fourth and Fourteenth Amendment rights “to be free in her person[] and property from unreasonable search[es] and seizures”; “to be free from unlawful, reckless, deliberately indifferent, and conscience shocking searches and seizures”; “to be free from the use of unlawful force”; and “to be free from injury and detention without substantive due process and from state created/enhanced danger.” [Doc. 1 ¶ 172.] Based upon a review of the Complaint and the parties' briefs regarding summary judgment, the Court construes this claim as asserting that Cure violated Plaintiff's Fourth Amendment right to be free from a warrantless entry into her home and violated Plaintiff's Fourteenth Amendment right to substantive due process. The Court will address each of these purported constitutional violations.
To the extent Plaintiff's § 1983 claim is based on alleged violations of Kaiser's constitutional rights that occurred when Cure stopped him, questioned him, attempted to arrest him, or otherwise used force against him [see Docs. 1 ¶¶ 51-61, 75-83, 86-89, 92-96, 98, 101-08, 110, 115-18, 121-26, 133, 136; 41 at 10 (alleging that Cure “unlawfully attempted to seize and arrest” Kaiser and “unlawfully created and escalated conflict between herself and” Kaiser), 13 (“Here, Cure had no authority to arrest Kaiser.”), 16 (“Without a valid exigency, Defendant Cure's seizure of Kaiser within the curtilage of his home is in violation of the Fourth Amendment.”)], the Court agrees with Cure that she is entitled to summary judgment [Doc. 40-1 at 13, 16]. It is well established that a plaintiff cannot assert another person's constitutional rights. Warth v. Selden, 422 U.S. 490, 499 (1975). Thus, to the extent that Plaintiff bases her claims on Cure's alleged violations of Kaiser's Fourth Amendment rights, the Court recommends that summary judgment be granted to Cure.
Fourth Amendment Claim
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (internal quotation marks omitted). The central requirement of the Fourth Amendment is reasonableness, and warrantless entries into a residence are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). However, “the warrant requirement is subject to certain exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
As stated, the Court has construed Plaintiff's Fourth Amendment claim as being based on Cure's entering Plaintiff's home without a warrant. That is so because Plaintiff does not allege, nor does the record demonstrate, that Cure ever searched Plaintiff's person. Further, “one is ‘seized' within the fourth amendment's meaning only when one is the intended object of a physical restraint by an agent of the state,” Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991) (quoting Brower v. Cnty. of Inyo, 489 U.S. 593 (1989)), and the record shows that Kaiser, not Plaintiff, was the intended object of Cure's restraint.
Upon review of the record, the Court concludes that Cure is entitled to qualified immunity on Plaintiff's Fourth Amendment claim because a reasonable officer in Cure's position would not have known that entering Plaintiff's home under the circumstances in this case violated Plaintiff's rights. See Pearson, 555 U.S. at 236 (noting that district court judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand”). Cure bears the burden of proving that the constitutional right at issue was not clearly established at the time Cure entered Plaintiff's home. See Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022). Here, Cure argues that no case law makes clear that an officer could not enter a home to continue a Terry stop of a suspect that began outside the home. [Docs. 40-1 at 30-31; 44 at 8-10.] Plaintiff does not argue that the facts known to Cure were insufficient to justify a Terry stop of Kaiser; instead, Plaintiff contends that it was clearly established at the time Cure subjected Kaiser to a Terry stop that an officer is precluded from executing a Terry stop within the curtilage of a suspect's home absent exigent circumstances. [Doc. 41 at 16-19.] The Court disagrees with Plaintiff.
Plaintiff repeatedly cites in her brief to findings of the Greenville County Sheriff's Office's Office of Professional Standards (“OPS”) regarding its investigation into Plaintiff's conduct. Plaintiff emphasizes that the OPS determined that Cure's actions violated various Greenville County Sheriff's Office policies and that she should have taken advantage of several opportunities to increase the distance between herself and Kaiser and waited for back up before attempting to take him into custody. [Doc. 41 at 9.] However, the fact that a Greenville County Sheriff's Office policy may prohibit some action has no bearing on the action's constitutionality. See Abney v. Coe, 493 F.3d 412, 419 (4th Cir. 2007) (noting that a violation of a departmental policy does not equal a constitutional violation).
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized that an officer may stop and detain a person without probable cause in limited circumstances. Id. at 27. Following Terry, the Fourth Circuit has held that, consistent with the Fourth Amendment, “[a]n officer may stop and briefly detain a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” United States v. Montieth, 662 F.3d 660, 665 (4th Cir. 2011) (internal quotation marks omitted).
Because Plaintiff does not dispute Cure's contention [Doc. 40-1 at 13] that the facts known to her were sufficient to justify a Terry stop, the Court does not address that issue. See Baker v. Warden, FCI Williamsburg, No. 5:14-cv-1006-BHH-KDW, 2014 WL 8382936, at *3 (D.S.C. Dec. 17, 2014) (“[A] litigant's failure to respond to a specific point proposed by his opponent as a basis for summary judgment amounts to a concession to the opponent's position on that point.”), Report and Recommendation adopted by 2015 WL 1423293 (D.S.C. Mar. 27, 2015).
The curtilage of a home is “the area immediately surrounding a dwelling house” that “harbors the intimate activity associated with the sanctity of a man's home and the privacies of life.” United State v. Dunn, 480 U.S. 294, 300 (1987) (internal quotation marks omitted).
One exception to the warrant requirement for entering a home provides that law enforcement officers may enter private property without a warrant in certain exigent circumstances such as “to fight a fire and investigate its cause, to prevent the imminent destruction of evidence, or to engage in ‘hot pursuit' of a fleeing suspect.” Brigham City, 547 U.S. at 403 (internal citations and quotation marks omitted).
The Court notes that Rivera v. Washington, 57 Fed.Appx. 558 (4th Cir. 2003), forecloses any argument that the Fourth Amendment precluded Cure from following Kaiser into the home during the Terry stop. In Rivera, the Fourth Circuit addressed, in an unpublished opinion, an officer's warrantless entry of a home in pursuit of a suspect who had fled a Terry stop initiated on the home's back porch. The Fourth Circuit concluded:
[T]he facts alleged do not demonstrate that the officers violated the appellants' constitutional right against an unlawful entry because courts have recognized that a person cannot avoid a Terry stop simply by retreating into a home. For example, in Harbin v. City of Alexandria, 712 F.Supp. 67 (E.D.Va. 1989), aff'd, 908 F.2d 967 (4th Cir. 1990), the court upheld the stop of the plaintiff in his home after the police followed the plaintiff on the street and called to him to stop as he crossed the threshold of his house and entered his living room. Id. at 71. The court relied upon the Supreme Court's decision in United States v. Santana, 427 U.S. 38 . . . (1976), which recognized that a criminal suspect cannot thwart an otherwise valid arrest by retreating from the doorway of her home into the vestibule of the house, noting that this principle had been sensibly extended to Terry stops. Harbin, 712 F.Supp. at 71-72; cf. United States v. Pace, 898 F.2d 1218, 1228-29 (7th Cir. 1990) (holding that, once police officers had reasonable suspicion to stop defendant, defendant could not avoid Terry stop by entering his condominium's garage and attempting to close the garage door); Alto v. City of Chicago, 863 F.Supp. 658, 661-62 (N.D. Ill. 1994) (“[A]n officer who stops a person because of a reasonable, articulable suspicion of criminal activity . . . need not terminate the stop merely because the suspect flees to his home.”); United States v. Gomez, 495 F.Supp. 992, 1005 (S.D.N.Y. 1979) (holding that agents who continued attempted Terry stop of suspects after they retreated and slammed the door of apartment did not contravene the Fourth Amendment, as a valid Terry stop occurred within), aff'd, 633 F.2d 999 (2d Cir. 1980).Id. at 562 (footnote omitted). Applying the reasoning of Rivera to the facts here yields the conclusion that Kaiser was not entitled to avoid a Terry stop by retreating into his home, and Cure did not act unlawfully by following Kaiser inside to continue the Terry stop.
To support her argument that it was clearly established at the time Cure subjected Kaiser to a Terry stop that an officer may not seize a suspect on his front porch, Plaintiff relies on the general constitutional principles set forth in Payton and Florida v. Jardines, 569 U.S. 1 (2013), that searches and seizures inside a home without a warrant are presumptively unreasonable and that the Supreme Court regards the curtilage-of which the front porch is the classic example-as part of the home itself for Fourth Amendment purposes. [Doc. 41 at 16, 18.] However, when defining the right in dispute in the context of a qualified immunity inquiry, the Court is mindful of the Supreme Court's admonition “not to define clearly established law at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation marks omitted). Instead, the Court must “take care to define the right [in question] at an appropriate level of specificity.” Thompson v. Virginia, 878 F.3d 89, 98 (4th Cir. 2017) (internal quotation marks omitted). Moreover, the idea “that the curtilage is entitled to the same Fourth Amendment protection as the home” does not mean “that limits on access to the home and the curtilage are equivalent.” Edens v. Kennedy, 112 Fed.Appx. 870, 875 (4th Cir. 2004) (recognizing that “[a]ccess to the home is strictly forbidden in the absence of a warrant or exigent circumstances” but that “police officers ordinarily may enter the curtilage in order to approach the home without implicating the constraints of the Fourth Amendment”); see also Jardines, 569 U.S. at 8 (“[A] police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen may do.” (internal quotation marks omitted)).
As noted, Plaintiff cannot base her claim on Kaiser's right to be free from unreasonable seizures. See Warth, 422 U.S. at 499. However, the discussion of whether Cure was authorized to seize Kaiser within the curtilage does not arise in the context of a claim to enforce Kaiser's rights. Rather, it arises in the context of Plaintiff's claim that Cure's entry into Plaintiff's home violated Plaintiff's Fourth Amendment rights. Specifically, Cure argues that she is entitled to qualified immunity as to the latter claim because a reasonable officer in her position would have believed she was entitled to enter the home to continue a Terry stop of Kaiser that began outside the home.
The Court notes that, in this case, the afternoon encounter between Cure and Plaintiff began when Cure was approaching the front of the home to question Kaiser and, as she was walking toward the home, Kaiser walked outside. [AC 5:20-5:34.]
In United States v. Santana, 427 U.S. 38 (1976), the Court considered an officer's initiation of a warrantless seizure of a suspect who was observed standing in the doorway of her home. Id. at 40. As the officers approached her to make an arrest, she entered the vestibule of the house, and the officers followed her inside and arrested her. Id. The Supreme Court concluded that the arrest did not violate the Fourth Amendment, in part because they were authorized to arrest her when she was standing in the doorway of her house. Id. at 42-43. In concluding that the officers were so authorized, the Court reasoned:
While it may be true that under the common law of property the threshold of one's dwelling is “private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment [the suspect]
was in a “public” place. She was not in an area where she had any expectation of privacy. “What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.”Id. at 42. Thus, Santana upholds a warrantless entry into the threshold of a home for the purpose of a seizure, and Santana has not been overruled.
Although Jardines clearly establishes the unconstitutionality of a warrantless search of the curtilage of a home, the facts of that case did not involve a warrantless seizure of a suspect in the curtilage of a home. Jardines, 569 U.S. at 5 (“We granted certiorari, limited to the question of whether the officers' behavior was a search within the meaning of the Fourth Amendment.”). Plaintiff has not pointed to any case that held, prior to the time of the incident, that Santana is no longer good law in this Circuit on the point in question, and the Court is not aware of any such case. See United States v. Santos-Portillo, 997 F.3d 159, 163 (4th Cir. 2021) (“The Fourth Amendment permits ‘the warrantless arrest of an individual in a public place upon probable cause []' . . . [a]nd the Court has specifically upheld a warrantless arrest with probable cause on the front steps of a house.” (quoting Santana, 427 U.S. at 42)); see also J. Ross Hamrick, First Among Equals: How the Curtilage Doctrine Bars a Terry Stop and Frisk Inside the Curtilage After Jardines and Collins, 52 U. Mem. L. Rev. 577, 600-10 (2022) (collecting cases and noting the split among jurisdictions concerning whether a Terry stop is precluded within the curtilage). Even assuming that that Santana is in tension with other Supreme Court decisions, it is for the Supreme Court to decide whether to overrule it. See Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If a precedent of th[e Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to th[e Supreme] Court the prerogative of overruling its own decisions.”). At the very least, Santana muddies the water sufficiently that it cannot be said that it was clearly established at the time of the incident in question that an officer was precluded from executing a Terry stop within the curtilage of a suspect's home. See Soza v. Demisch, 13 F.4th 1094, 1104-07 (10th Cir. 2021) (holding, based on Santana, that even after the issuance of Jardines it was not clearly established that a seizure of a suspect within the curtilage was unconstitutional); see also Rogers v. Pendleton, 249 F.3d 279, 287-88 (4th Cir. 2001) (“While a consensus of cases of persuasive authority may clearly establish a right for qualified immunity purposes, the inverse is also true: if there are no cases of controlling authority in the jurisdiction in question, and if other appellate federal courts have split on the question of whether an asserted right exists, the right cannot be clearly established for qualified immunity purposes.”). The Court concludes, therefore, that it is not the case that a reasonable officer in Cure's position would have realized that she was precluded from subjecting a suspect to a Terry stop within the curtilage of his home. Thus, Cure's motion for summary judgment should be granted as to Plaintiff's Fourth Amendment claim.
Because the Court concludes that Cure is entitled to summary judgment as to Plaintiff's Fourth Amendment unlawful entry claim for this reason, the Court declines to address Cure's alternative arguments related to the Fourth Amendment claim, including the argument raised for the first time in her reply brief that Cure's entry into the home was justified because Kaiser committed a misdemeanor in her presence. See Moore v. Laurens Cnty., No. 6:09-cv-03083-JMC, 2011 WL 4345893, at *3 (D.S.C. Sept. 16, 2011) (“Courts often refuse to consider arguments made for the first time in a reply brief on the basis that doing so effectively denies the party opposing the motion an opportunity to respond.”).
Fourteenth Amendment Substantive Due Process Claim
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. “The substantive component of the Due Process Clause bars certain government actions regardless of the fairness of the procedures used to implement them.” Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990) (alteration and internal quotation marks omitted). “To prove a violation of substantive-due-process rights under the Fourteenth Amendment, a plaintiff must show that a defendant's behavior was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'” Washington v. Housing Auth. of the City of Columbia, 58 F.4th 170, 177 (4th Cir. 2023) (internal quotation marks omitted). The question of what sort of conduct violates that standard is one that is central to this case.
The Supreme Court has explained that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). “It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. The Fourth Circuit has noted, however, that “conduct falling in between those two poles-deliberate-indifference conduct which is more than negligence but less than intentional harm-presents a closer call.” Washington, 58 F.4th at 178.
“Ultimately, the applicable standard of culpability for a substantive-due-process claim-either intent to harm or deliberate indifference-depends on an exact analysis of the context and circumstances of the case.” Id. (alteration and internal quotation marks omitted). The deliberate-indifference standard applies “only when actual deliberation is practical.” Lewis, 523 U.S. at 851. Further, “actual deliberation” does “not mean ‘deliberation' in the narrow, technical sense in which it has sometimes been used in traditional homicide law.” Id. at 851 n.11. Rather, liability for deliberate indifference “rests upon the luxury enjoyed by . . . officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations.” Id. at 853.
Here, the Court concludes that, based on the context and circumstances of this case, the intent-to-harm standard applies. Cure's actions forming the basis of Plaintiff's claim were actions taken in response to Kaiser's assault of Cure in which he pushed her down on her back, held her arms, refused to let go of her, and yelled that he was stronger than she was and he could “f***ing do whatever he f***ing want[ed].” [AC 13:51-13:59.] Under assault, Cure had no time to deliberate or make an unhurried judgment. When she was able to fight Kaiser off, she immediately drew her weapon in an attempt to protect herself against further attack and gain control of the situation. [AC 14:11-14:12.] And when Kaiser charged toward Cure once again only seconds later, Cure was forced to make another split-second decision. [AC 14:30-14:35.] The Court concludes that Cure's actions in response to Kaiser's sudden attacks were the very sort of “rapidly evolving, fluid, and dangerous situations which preclude the luxury of calm and reflective deliberation,” warranting application of the intent-to-harm standard. Dean ex rel. Harkness v. McKinney, 976 F.3d 407, 414 (4th Cir. 2020) (internal quotation marks omitted).
Plaintiff argues that the deliberate-indifference standard should apply to her due process claim because “Cure was not involved in an emergency scenario” insofar as she “was conducting a follow-up investigation on an alleged shoplifting charge that had occurred hours beforehand.” [Doc. 41 at 20-21.] Plaintiff is correct that Cure had an opportunity, before arriving at the home, to deliberate regarding how she would handle her questioning of Kaiser. But, as stated, Plaintiff's Fourteenth Amendment claim is based on the actions Cure took in response to Kaiser's attacks.
Plaintiff cannot satisfy that standard as she has forecasted no evidence of any intent to harm by Cure. Plaintiff argues that, regardless of what Cure's intentions were, she could have reduced the chance of injury to all involved had she taken the opportunity at certain points to de-escalate the situation, put more distance between herself and Kaiser, and continue to wait for back up rather than attempt to gain control of the situation and move Plaintiff out of the way. [Doc. 41 at 20-22.] Plaintiff contends that Cure's knowledge that Kaiser was intoxicated and stronger than her, that Kaiser was not verbally or physically threatening Cure or Plaintiff, and that multiple back-up units were en route counseled in favor of the more cautious approach. [Id. at 21-22.] Even assuming that it could be said, with the benefit of 20/20 hindsight, that retreating farther and waiting for back up would have been a more prudent choice for Cure, that does not equate to an intent to harm.
For all of the reasons discussed, the Court concludes that Plaintiff has failed to forecast evidence that Cure violated Plaintiff's right to substantive due process. See Jones v. City of Charleston, No. 2:11-cv-00612, 2012 WL 714277, at *3-4 (S.D. W.Va. Mar. 5, 2012) (dismissing a Fourteenth Amendment substantive due process claim based on a police officer's accidental shooting of a fellow officer when the police officer attempted to shoot a dangerous suspect; concluding that even if the allegations established that the officer acted recklessly in failing to account for the location of his fellow officer, it was only an accidental shooting, not “the kind of oppressive abuse of governmental power that substantive due process protects against” (internal quotation marks omitted)); Lee v. Williams, 138 F.Supp.2d 748, 762 (E.D. Va. 2001) (granting summary judgment on a substantive due process claim when police officers accidentally shot a hostage during a shootout with robbery suspects). Therefore, Cure's summary judgment motion should be granted with respect to Plaintiff's Fourteenth Amendment substantive due process claim.
The Court notes that, to the extent that Plaintiff bases her claim on the state-created danger doctrine [Doc. 1 ¶ 172d], Plaintiff has abandoned that theory by failing to respond to Cure's arguments that the doctrine does not apply [Docs. 40-1 at 22-23; 41]. See Baker, 2014 WL 8382936, at *3; Campbell v. Rite Aid Corp., No. 7:13-cv-02638-BHH, 2014 WL 3868008, at * 2 (D.S.C. Aug. 5, 2014) (“Plaintiff failed to respond to [Defendant's] argument regarding causes of action 1 and 2, and the Court can only assume that Plaintiff concedes the argument.”).
Because the Court concludes that Cure is entitled to summary judgment for the reasons discussed as to Plaintiff's Fourteenth Amendment claim, the Court declines to address Cure's alternative arguments.
State-Law Claims
As noted, Plaintiff alleges state-law claims of negligence and gross negligence against all Defendants and of negligent and gross negligent hiring, supervision, training, and retention against the County Defendants. [Doc. 1 ¶¶ 201-08.]
Eleventh Amendment Immunity
As the County Defendants argue [Doc. 39-1 at 7-9], they are entitled to dismissal, based on Eleventh Amendment immunity, of the state-law claims against them.
The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina, or its officials in their official capacities, by a citizen of South Carolina or a citizen of another state. See Alden v. Maine, 527 U.S. 706, 728-29 (1999); Edelman v. Jordan, 415 U.S. 651, 663 (1974). As noted in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 n.9 (1984), a state must expressly consent to suit in a federal district court. The State of South Carolina has not consented to suit in a federal court. The South Carolina Tort Claims Act (“SCTCA”), section 15-78-20(e) of the South Carolina Code of Laws, expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the state of South Carolina, and does not consent to suit in a federal court or in a court of another state. See McCall v. Batson, 329 S.E.2d 741, 743 (S.C. 1985) (abolishing sovereign immunity in tort “does not abolish the immunity which applies to all legislative, judicial and executive bodies and to public officials who are vested with discretionary authority, for actions taken in their official capacities”), superseded by statute, SC Code Ann. § 15-78-100(b), as recognized in Jeter v. S.C. Dep't of Transp., 633 S.E.2d 143 (S.C. Ct. App. 2006); see also Pennhurst, 465 U.S. at 121 (“[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.”).
Further, Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity,” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself,” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Greenville County is entitled to Eleventh Amendment immunity as a subdivision of the state of South Carolina. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); see also S.C. Code Ann. § 15-78-20(e) (noting that the State of South Carolina has not consented to suit in federal court). Additionally, Sheriff's departments in South Carolina are state agencies, not municipal departments. Cromer, 88 F.3d at 1332 (holding that a county sheriff in South Carolina is an arm of the state); Edwards v. Lexington Cnty. Sheriff's Dep't, 688 S.E.2d 125, 127 n.1 (S.C. 2010) (“under South Carolina law, the sheriff and sheriff's deputies are State, not county, employees”). Accordingly, because Plaintiff's claims are for money damages only, the County Defendants are entitled to dismissal, without prejudice, of the claims alleged against them. See Pense v. Md. Dep't of Pub. Safety & Corr. Servs., 926 F.3d 97, 99, 103 (4th Cir. 2019) (noting that dismissal based on Eleventh Amendment immunity is without prejudice).
The Court notes that Plaintiff consents to the dismissal, without prejudice, of her claims against the County Defendants. [Docs. 42 at 11.]
Supplemental Jurisdiction Regarding Claim Against Cure
Plaintiff's state-law claim against Cure can be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state- law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Further, the Supreme Court has warned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.... [I]f the federal claims are dismissed before trial . . . the state law claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
Plaintiff sues Cure in her individual capacity only. [Doc. 1 ¶ 5 (alleging action against Cure “in her capacity as a duly-certified law enforcement deputy employed by the Greenville County Sheriff's Office”); see also Docs. 40-1 at 31 (Cure's brief observing that Plaintiff “sued Cure individually”; Id. at 32 (similar); 41 (Plaintiff's brief not disputing that Cure was sued in her individual capacity).]
A civil action for Plaintiff's state-law claim could be cognizable in this Court under the diversity statute, if that statute's requirements are satisfied. However, this Court does not have diversity jurisdiction in this case because the Complaint does not allege the required complete diversity of citizenship of the parties. [See Doc. 1]; see also 28 U.S.C. § 1332.
Applying these factors, the Court concludes that the factors counsel in favor of the Court retaining jurisdiction over Plaintiff's state-law claim against Cure. Plaintiff brought this case in federal court, this case has been pending in this Court since October 2021, and discovery has concluded. Moreover, resolution of the state-law claim involves only the straightforward application of established state-law principles, such that judicial economy strongly favors retaining jurisdiction.
Regarding her state-law claims against Cure arising out of her employment with the Greenville Sheriff's Office, Plaintiff “consents to those claims being dismissed subject to Plaintiff's right to re-file said claims against the proper parties in South Carolina Circuit Court pursuant to [28] U.S.C. § 1367(d).” [Doc. 41 at 24 (capitalization altered).] To the extent that Plaintiff is seeking to voluntarily dismiss these claims without prejudice under Rule 41, the Court notes that it “is long past the time when Plaintiff can voluntarily dismiss her claims without prejudice.” Jackson v. City of Hyattsville, No. 10-cv-00946-AW, 2010 WL 5173787, at *3 (D. Md. Dec. 13, 2010) (citing Fed.R.Civ.P. 41(a)(1)(A) (“[T]he plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or . . . a stipulation of dismissal signed by all parties who have appeared.” (alterations and emphasis added by Jackson)). As explained, interests of judicial economy strongly favor this Court's retaining jurisdiction.
Merits of the State-Law Claim Against Cure
The SCTCA grants immunity to governmental employees acting within the scope of their employment unless the conduct constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. S.C. Code § 15-78-70(a), (b); see Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005) (holding “a state employee can, in these limited circumstances, be held personally liable by a federal court for some intentional torts committed within the scope of his employment”); Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (noting that an employee of a government entity is personally liable for a tort, only when the employee's conduct falls within the exceptions listed in § 15-78-70(b)); Antley v. Shepherd, 532 S.E.2d 294, 299 (S.C. Ct. App. 2000) (holding that a governmental manager was not personally liable for discharge in violation of public policy when he was acting within the scope of his duties). “The provisions of [the SCTCA] establishing limitations on and exemptions to the liability of the State, its political subdivisions, and employees, while acting within the scope of official duty, must be liberally construed in favor of limiting the liability of the State.” S.C. Code § 15-78-20(f).
When a plaintiff alleges that a state governmental employee has committed a tort while he was acting within the scope of his official duty, SC Code § 15-78-70(c) states that a plaintiff can name as a defendant only the governmental entity for which the employee was acting. Here, Plaintiff admits that Cure, a Greenville County Sheriff's Office employee, was acting within the course and scope of her duties. [Doc. 1 ¶ 3.] Plaintiff further admits that Cure is immune from state law claims arising out of her employment. [Doc. 41 at 24.] The Court therefore recommends that Cure's motion for summary judgment be granted regarding Plaintiff's state law claim as against Cure.
RECOMMENDATION
In light of all the foregoing, it is recommended that Defendants' motions for summary judgment [Doc. 39; 40] be GRANTED.
IT IS SO RECOMMENDED.