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Meyer v. McGowan

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

August 16, 2018

Parker Meyer, PLAINTIFF,
v.
Leigh Anne McGowan, individually; Charles Francis Wohlleb, individually; Anthony M. Doxey, individually; Michael Kouris, individually; City of North Charleston; DEFENDANTS.

          REPORT & RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.

         The Plaintiff, through counsel, brings this action under 42 U.S.C. § 1983 and state law against City of North Charleston Police officers and the City of North Charleston (“the City”). Before the court is Defendants' Motion and Memorandum in Support of Motion for Summary Judgment as to All Remaining Claims (“Defendants' Motion”). (Dkt. No. 120.) All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This court recommends that the Defendants' Motion be granted in part and denied in part.

         Facts of the Case

         The Plaintiff was arrested in her home on March 27, 2014, by Defendant McGowan and was charged with assault on a police officer. (Dkt. No. 54 ¶¶ 42, 101, 118, 119.) Defendants McGowan, Wohlleb, Doxey, and Kouris were police officers for the City of North Charleston (“City”) at the time of the Plaintiff's arrest. (Id. ¶ 3.) At approximately 5:00 p.m. on March 27, 2014, the Plaintiff left her home, which she shared with her mother, and went to a work function. (Id. ¶ 43.) The Plaintiff returned home at 9:20 p.m. and fell asleep on her bed watching television on a laptop. (Id. ¶ 44.) At approximately 10:00 p.m., the Plaintiff woke up and went to retrieve items from her car. (Id. ¶ 45.) The door to the house locked behind the Plaintiff. (Id.) The Plaintiff pounded on her door and yelled to awaken her mother for about four minutes. (Dkt. No. 70-3. at 3-4.) The Plaintiff's mother, who has dementia and is referred to herein as “Jane Doe, ” was unable to open the door. The Plaintiff alleges that she directed her mother to a glass door where the Plaintiff explained to her mother how to open the door. (Id.) By 10:04 p.m., the Plaintiff alleges that she and her mother were back in their beds, and the Plaintiff again fell asleep watching television on a laptop. (Dkt. No. 54 ¶ 47.)

         Meanwhile, the Plaintiff's neighbor, Jake Sadler, called 911 to report the events transpiring with the Plaintiff being locked out of her house.[1] (Dkt. No. 70-2 at 3-4.) Mr. Sadler testified that he observed the Plaintiff banging on her door and yelling. (Id.) Mr. Sadler testified that the Plaintiff walked over next to the sidewalk, pulled up her dress, and appeared to urinate in the grass. (Id.) After she finished urinating, the Plaintiff returned to the door and resumed pounding and yelling. (Id.) The Plaintiff's account does not include that she urinated outside.

         Defendant McGowan was the first officer to arrive at the Plaintiff's house in response to the 911 call. (Dkt. No. 70-10 at 3.) Upon arrival, Defendant McGowan noted a vehicle in the driveway with the interior light on, the hood still warm, and several wine bottles in the “back.” (Dkt. No. 70-1 at 11, 42.) Defendant McGowan saw a pair of high heels next to the driver's door on the ground.[2] (Id. at 11.) Defendant McGowan knocked on the front door and received no response. (Id. at 6.) Defendant McGowan then proceeded to the back yard to knock on the rear doors. (Id. at 6-7.) Defendant McGowan testified that as she walked through the gate to the backyard, she noticed a large green purse[3] with blood on it. (Id.) Defendant McGowan could see the purse with her flashlight. (Id.) Defendant McGowan then radioed to dispatch at 10:22 p.m. that the car had an open “trunk” with wine inside, a bloody purse was on the ground, she was unable to locate “the victim, ” and no one was coming to the door.[4] (Dkt. No. 70-1 at 6, 48.)

         Defendant McGowan knocked on the back door and received no response. (Dkt. No. 70-1 at 14.) Defendant McGowan then met with Mr. Sadler, who repeated to her what he had told the 911 dispatcher. (Id. at 24-25.) Defendants Doxey and Wohlleb arrived on scene simultaneously but in different vehicles.[5] (Dkt. No. 70-10 at 3.) Defendant McGowan briefed Defendants Doxey and Wohlleb on her investigation to that point. (Dkt. No. 70-1 at 14-16.) The three Defendants decided to attempt to wake up a resident of the home to conduct a wellness check. (Id.) Defendant Doxey went to the front door and began knocking while Defendants McGowan and Wohlleb stayed at the back door banging on it. (Id. at 16-17.)

         Defendant Wohlleb was able to open the back door, which was a sliding glass door, by lifting the door within the frame. (Dkt. Nos. 70-1 at 17-18; 70-4 at 4-5.) Defendants Wohlleb and McGowan entered the residence, which was dark, and announced their presence. (Id.) They did not receive a response. (Id.) At the same time, Defendant Doxey was knocking on the front door and saw an elderly lady coming to open the door. (Dkt. No. 70-10 at 5.) The lady turned away from Defendant Doxey knocking at the front door to face Defendants Wohlleb and McGowan, who were approaching from inside the home. (Id.; Dkt. Nos. 70-1 at 18; 70-4 at 5.) Defendant Doxey observed the lady escort Defendants Wohlleb and McGowan upstairs and out of his sight. (Dkt. No. 70-10 at 5-6.) Defendant Doxey then went around to the back of the house and entered through the open door. (Id. at 6.)

         The elderly lady, who was Jane Doe, looked towards Defendants Wohlleb and McGowan. (Dkt. No. 70-4 at 5.) Defendant Wohlleb asked her if everything was “okay” and she said yes. (Id.; Dkt. No. 70-1 at 19.) Jane Doe did not appear to be injured or in any distress. (Dkt. No. 70-1 at 19.) Defendants Wohlleb and McGowan explained that they were responding to a family disturbance call and asked where her daughter was. (Dkt. No. 70-4 at 5.) Jane Doe told them the Plaintiff was upstairs in her bedroom. (Id.) Defendants Wohlleb and McGowan asked if Jane Doe would show them where Plaintiff was, and Jane Doe responded in the affirmative and escorted Defendants Wohlleb and McGowan upstairs. (Id.; Dkt. No. 70-1 at 19-20.)

         Defendant McGowan found the Plaintiff laying in her bed on top of her covers in the same clothing that was described by Mr. Sadler in the 911 call. (Dkt. No. 70-1 at 20.) The Defendants' account and the Plaintiff's account of what happened in the Plaintiff's bedroom diverge at this point.

         The Defendants' account is as follows: Defendant McGowan testified that she saw red wine spilled on the Plaintiff's shirt[6] and that her knee was bleeding. (Dkt. No. 70-1 at 21.) Defendant McGowan could not recall how the Plaintiff woke up, but Defendant McGowan asked the Plaintiff how much alcohol she had consumed because Defendant McGowan was concerned the Plaintiff might need her stomach pumped. (Id. at 21-22.) Defendant McGowan testified that Plaintiff first said she had “too much” to drink and then “not enough.” (Id. at 22.) The Plaintiff's speech was slurred, and she appeared disoriented. (Id.; see also Dkt. No. 70-4 at 6.) Defendant McGowan and the other Defendants asked the Plaintiff why her purse and shoes were outside. (Id. at 23.) The Plaintiff attempted to get up to retrieve the items from outside but was unsteady on her feet. (Id.) Defendants Doxey and Wohlleb went to retrieve the Plaintiff's items from outside leaving Defendant McGowan alone with the Plaintiff and Jane Doe. (Id. at 23, 27.) Defendant McGowan asked the Plaintiff if she needed EMS to come for her knee, but she declined. (Id. at 28.) Defendant McGowan continued to ask Plaintiff questions to make sure she appeared coherent and had not fallen or had a concussion. (Id. at 30-32.)

         Plaintiff became belligerent and angry. (Dkt. No. 70-1 at 30-32.) Defendant McGowan directed Jane Doe to go to another room because the Plaintiff was getting more agitated with her mother in the room. (Id. at 32-33.) The Plaintiff was demeaning her mother, who appeared fearful of the Plaintiff. (Id. at 35, 43.) Defendant McGowan testified that Plaintiff then lunged towards her and poked her in the eye while swinging her arms and hands. (Id. at 37.) Defendant McGowan was able to control the Plaintiff by getting one of her hands in a cuff. (Id.) Defendant McGowan radioed for Doxey to come back upstairs and Doxey and Wohlleb returned. (Id.)

         The Plaintiff's account of what happened in her bedroom is as follows: The Plaintiff was awakened by a “brut[e]” that attacked her in her bed. (Dkt. No. 70-3 at 30.) The “assailant” that attacked her in the dark caused her knee to be carpet burned resulting in her bloody knee. (Id.) The Plaintiff testified that her knee was not injured before the carpet burn. (Id.) The Plaintiff agreed that Defendant McGowan was attempting to ask her if she needed medical attention and ask how much alcohol she had consumed. (Id. at 30-31.) The Plaintiff did not respond to the question because she was “terrified” and “yelling” for the officers to get out of her house. (Id. at 31.) The Plaintiff stated that she was disoriented because “there was a blob, a gigantic, violent blob in my room with a flashlight in my face.” (Id. at 32.) The Plaintiff did not remember any other officers being in her room. (Id. at 33.) The Plaintiff testified that she never tried to get out of bed because Defendant McGowan “put [the Plaintiff] to the floor from [her] bed” by her wrist. (Id. at 34, 37.) Defendant McGowan then “violently and forcefully with a …death grip on the back of [her] arm that caused a perfect handprint bruise, stood [the Plaintiff] up to [her] feet, once she'd beaten [Plaintiff] up, and took [Plaintiff] down the stairs.” (Id. at 34.) The Plaintiff yelled for her mother to “stay out of this.” (Id. at 35.)

         Defendant McGowan arrested Plaintiff and charged her with assault on a police officer under a North Charleston city ordinance. (Dkt. Nos. 70-1 at 38; 120-12.) The Plaintiff's charge was eventually dismissed and expunged following the Plaintiff's completion of a pretrial diversionary program. (Dkt. No. 79-15; 79-22.)

         Defendant Kouris arrived on the scene in response to a request for transport. (Dkt. No. 70-6 at 3.) Defendant Kouris transported the Plaintiff to jail. (Dkt. No. 70-6.) The Plaintiff testified that Defendant Kouris “leered at [her] skirt” while shackling the Plaintiff. (Dkt. No. 80-4 at 10.) The Plaintiff alleged that Defendants McGowan and Kouris then defamed the Plaintiff by telling jail staff that she had committed a felony by abusing her mother. (Dkt. No. 54 ¶ 133.)

         Standard of Review

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). However, “the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).

         Analysis

         The Defendants' Motion seeks summary judgment on the Plaintiff's § 1983 claim against Defendant McGowan for excessive force in the ninth cause of action. (Dkt. No. 120.) Additionally, the Defendants' Motion seeks summary judgment on the Plaintiff's state law claims against the City for trespass in the third cause of action, invasion of privacy in the fourth cause of action, negligent hiring in the fifth cause of action, negligent supervision in the sixth cause of action, negligent retention in the seventh cause of action, assault in the eighth cause of action, battery in the ninth cause of action, false imprisonment in the tenth cause of action, and defamation in the twelfth and fourteenth causes of action.[7] (Id.)

         1) 42 U.S.C. § 1983 Claim Against Defendant McGowan for Excessive Force

         The Plaintiff alleges that Defendant McGowan used excessive force against her when she was arrested in her bedroom on March 27, 2014, in violation of her Fourth and Fourteenth Amendment rights. (Dkt. No. 54 ¶¶ 233-236.) In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she “has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States, ” and (2) “that the conduct complained of was committed by a person acting under color of state law.” Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635, 540 (1983); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In a § 1983 action, “liability is personal, based upon each defendant's own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).

         “The Fourth Amendment prohibition on unreasonable seizures bars police officers from using excessive force to seize a free citizen.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). This court must analyze whether an officer's actions were objectively reasonable in determining if the force brought to bear was excessive. E.W. by & through T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018). “Determining the reasonableness of an officer's actions ‘requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'” Id. (quoting Graham, 490 U.S. at 396). The court must examine the officer's actions “in light of the facts and circumstances confronting [her], without regard to [her] underlying intent or motivation.” Id. (quoting Graham, 490 U.S. at 397). “Subjective factors involving the officer's motives, intent, or propensities are not relevant.” Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017) (quoting Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994)).

         Courts evaluate the following three factors when determining if the force used by an officer was reasonable: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” E.W. by & through T.W., 884 F.3d at 179 (quoting Graham, 490 U.S. at 396). Courts may additionally consider “other ‘objective circumstances potentially relevant to a determination of excessive force.'” Id. (quoting Kingsley v. Hendrickson, __U.S. __, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015)). “The ultimate question is whether the totality of the circumstances justified a particular sort of seizure.” Id. (quotations and citations omitted).

         As to the three factors in Graham, the Plaintiff was ultimately arrested under a North Charleston City Ordinance for assault on a law enforcement officer. (Dkt. No. 120-7.) The Plaintiff denied that she ever physically struck or threatened Defendant McGowan. (Dkt. No. 120-3 at 23.) According to the Plaintiff, she did not pose a threat to Defendant McGowan as she was asleep in her bed until Defendant McGowan woke her up, threw her to the ground, and arrested her without probable cause. (Id. at 19-24.) As to whether the Plaintiff was resisting arrest, the Plaintiff conceded that she was “kicking away, trying to get out from underneath” Defendant McGowan but that Defendant McGowan remained in complete control. (Id. at 22.)

         Considering the totality of the circumstances, the incompatible testimonies of the Plaintiff and McGowan create a genuine issue of material fact in this case. The Plaintiff and Defendant McGowan have given starkly contrasting accounts as to the circumstances of the Plaintiff's arrest. The Plaintiff testified that Defendant McGowan was the only officer in the room at the time she was arrested. (Dkt. No. 120-3 at 21.) The Plaintiff testified that the entire incident was in the dark, she was terrified, and yelling at McGowan to get out of her house. (Id. at 20; Dkt. No.70-3 at 36.) The Plaintiff testified that Defendant McGowan took her to the floor from her bed and then violently pulled her back up to her feet. (Dkt. No.70-3 at 34.) The Plaintiff denied that she ever struck Defendant McGowan because Defendant McGowan had “complete control of the situation” and left the Plaintiff bloody and bruised. (Dkt. No. 120-3 at 23.) The Plaintiff testified that her knee was bloodied by Defendant McGowan throwing her to the floor. (Id. at 30.) The Plaintiff's account is that she was attacked and arrested without any cause by Defendant McGowan. In contrast, Defendant McGowan alleges that she arrested the Plaintiff because the Plaintiff physically attacked her and poked her in the eye. (Dkt. No. 120-1 at 45.)

         Whether the Plaintiff or Defendant McGowan was the initial aggressor who used force is an issue of fact that cannot be resolved by the court. If, as the Plaintiff testified, Defendant McGowan took her to the ground out of her bed without provocation, the use of force could be found to be unreasonable. The Plaintiff testified that she resisted arrest only after Defendant McGowan used force in taking the Plaintiff to the ground. (Dkt. No. 120-3 at 22-23.) The undersigned concludes that a genuine issue of material fact exists as to whether Defendant McGowan was objectively reasonable in using force during her arrest of the Plaintiff and recommends that the Defendants' Motion be denied as to the § 1983 excessive force claim.[8]

         2) State Law Claims Against City

         The Plaintiff asserts her state law claims against the City for trespass, invasion of privacy, negligent hiring, negligent supervision, negligent retention, assault, battery, false imprisonment, and defamation under the South Carolina Tort Claims Act (“the Act”), SC Code § 15-78-10 et seq. The Act “governs all tort claims against governmental entities.” Hawkins v. City of Greenville, 358 S.C. 280, 292, 594 S.E.2d 557, 563 (Ct. App. 2004) (citing Flateau v. Harrelson, 355 S.C. 197, 203, 584 S.E.2d 413, 416 (Ct. App. 2003)). All governmental entities may be held liable for their torts as a private individual would be liable subject to the limitations and exemptions of the Act. Id. (citing S.C. Code Ann. § 15-78-40 (Supp. 2003)). S.C. Code Ann. § 15-78-30(d) defines “governmental entity” as “the State and its political subdivisions.” The Act is the exclusive remedy for any tort committed by an employee of a governmental entity. “An employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except…if 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.” S.C. Code Ann. § 15-78-70. The limitations and exemptions in the act must be liberally construed in order to limit the liability of the State. Hawkins, 358 S.C. at 292. “The governmental entity asserting the Act as an affirmative defense bears the burden of establishing a limitation upon liability or an exception to the waiver of immunity.” Id. S.C. Code Ann. § 15-78-60 provides forty “exceptions” to the limited waiver of sovereign immunity the Act provides.

         a) Intentional Torts

         The Plaintiff's claims for trespass, invasion of privacy, assault, battery, false imprisonment, and defamation are all intentional torts under South Carolina law. The Defendants argue that these claims are barred by exceptions to the Act (Dkt. No. 120 at 11-18) as well as on their merits (Id. 18-37.).

         i) Trespass Claim

         The third cause of action is brought against the City for trespass under state law. (Dkt. No. 54 ¶¶ 183-90.) This court has already recommended that a portion of this claim is precluded under the doctrine of collateral estoppel. (Dkt. No. 166 at 13.) The court now concludes that no genuine issue of material fact exists as to the Plaintiff's third cause of action, and the City is entitled to summary judgment. Additionally, the claim is barred by S.C. Code § 15-78-60(9).

         “For a trespass action to lie, ‘the act must be affirmative, the invasion of the land must be intentional, and the harm caused by the invasion of the land must be the direct result of that invasion.'” Hawkins v. City of Greenville, 358 S.C. 280, 296, 594 S.E.2d 557, 566 (Ct. App. 2004) (quoting Mack v. Edens, 320 S.C. 236, 240, 464 S.E.2d 124, 127 (1995)). Under South Carolina law, a trespass is limited to the protection of property interests; i.e., any interference with “one's right to the exclusive, peaceable possession of his property.” Ravan v. Greenville Cnty., 315 S.C. 447, 463, 434 S.E.2d 296, 303 (Ct. App. 1993); see also Hedgepath v. Am. Tel. & Tel. Co., 559 S.E.2d 327, 337 (Ct. App. 2001) (Defining trespass as any intentional invasion of the plaintiff's interest in the exclusive possession of his property.). “The essence of trespass is the unauthorized entry onto the land of another.” Id.

         This court has already concluded that the Defendants' entry onto the Plaintiff's mother's property and into her home was lawful because exigent circumstances existed to support a warrantless entry. (Dkt. No. 166 at 17-21.) The court concluded that those exigent circumstances continued to exist through the time the Defendants assured that the no emergency existed involving the Plaintiff, which required entry into the Plaintiff's bedroom. (Id.) Additionally, once the individual Defendants made entry into the residence, the evidence is uncontroverted that the Plaintiff's mother took them to the Plaintiff's bedroom ...


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