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Risher v. Chapman

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

February 26, 2019

KAREEM RISHER and TAMEKA VENNING, Plaintiffs,
v.
JASON CHAPMAN; COLLETON COUNTY SHERIFF'S OFFICE; COUNTY OF COLLETON; R. A. STRICKLAND, both individually and as sheriff of Colleton County, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on United States Magistrate Judge Mary Gordon Baker's report and recommendation (“R&R”), ECF No. 52, that the court grant in part and deny in part defendants' motion for summary judgment, ECF No. 42, and deny defendants' motion in limine, ECF No. 43. For the reasons set forth below, the court adopts the R&R, grants in part and denies in part defendants' motion for summary judgment, and denies defendants' motion in limine. Additionally, the court adopts those portions of the R&R that are not inconsistent with this order.

         I. BACKGROUND

         Kareem Risher (“Risher”) and Tameka Venning (“Venning”) (together, “plaintiffs”) brought this action pursuant to 42 U.S.C. § 1983 alleging that Risher's Fourth and Fourteenth Amendment rights were violated through defendants' improper search and seizure, use of excessive force, deprivation of due process, and deliberate indifference.[1] ECF No. 1-1 ¶¶ 56-69. Plaintiffs further allege state law claims for negligence and gross negligence against Defendants R. A. Strickland (“Strickland”) in his official capacity as Sheriff, the Colleton County Sheriff's Office (“CCSO”), and the County of Colleton. Id. ¶¶ 70-76. Defendants move for summary judgment on all claims, ECF No. 42, and file a motion in limine, ECF No. 43, seeking exclusion of plaintiffs' expert.

         A. Factual Allegations

         The R&R ably recites the relevant facts.[2] In short, plaintiffs allege that Risher was driving in Walterboro, South Carolina when defendant Jason Chapman (“Chapman”) pulled up behind Risher at a high rate of speed and followed him in an aggressive manner. ECF No. 1-1 ¶¶ 19-21. Chapman began his pursuit of Risher when Risher made an improper turn. Id. ¶ 20. Risher claims that he fled from Chapman because it was late at night and very dark outside. He stated that he became even more fearful when Chapman turned on his blue lights. Id. ¶ 22, 25. Eventually, Risher pulled into a mobile home area, exited his vehicle, and began to run. Id. ¶¶ 28-29. Chapman and Deputy Robert Edwards (“Edwards”) then pursued Risher on foot. Id. ¶ 30. Plaintiffs allege that without warning or justification for doing so, defendant Chapman shot Risher three times in his buttocks and the back of his right thigh. Id. ¶ 31. According to plaintiffs, Risher did not threaten or point a gun at anyone or have a gun at any time during the incident. Id. ¶ 32.

         Risher was tried and acquitted in state court on criminal charges that he pointed, presented, or possessed a gun during the events at issue. Plaintiffs have submitted testimony given at that state criminal trial as exhibits in this action. ECF No. 47-5. Additionally, plaintiffs have submitted a voluntary statement recording Chapman's recount of the events. ECF No. 47-3. According to this statement, Deputy Benjamin Polston (“Polston”), who was on the scene that night, yelled out that Risher was carrying a pistol. Id. at 2. Chapman also claimed to have observed a gun in Risher's right hand. Id. Chapman stated that he drew his service weapon after Polston yelled that Risher was “fixing” to shoot their patrol vehicle. Id. Chapman claims that he did not fire the first shot until Risher got up, and in mid-pursuit rotated from the waist, raised and extended his hand in Chapman's direction. Id. at 3. Chapman fired two additional shots after the first shot did not change Risher's position. Id. At the state criminal trial, Chapman testified that he was not able to locate a gun on or near Risher the night of the incident. ECF No. 47-5 at 328:3-6.

         Plaintiffs have also provided voluntary statements by Polston and Edwards. Polston stated that he observed the same gun as Chapman and that he did yell out to Chapman that Risher had a gun. ECF No. 47-4 at 1. However, Polston testified at the state criminal trial that he did not hear any commands for Risher to drop the gun prior to the gunshots. ECF No. 47-5 at 143:5-19.

         In Edwards' statement, he says that he pursued Risher on foot with a taser and a flashlight illuminating Risher. ECF No. 47-6 at 2. Although losing sight of Risher at one point, Edwards stated that he caught up to Risher and observed Risher raise his hand in a pointing gesture towards Chapman. Id. It was at this point that Edwards observed Chapman fire three shots from his gun. Id. Edwards was equipped with a microphone on his lapel, and the audio was submitted by plaintiffs. ECF No. 47-7. This audio does not record Polston or any other officer telling Chapman that Risher has a gun. Furthermore, this audio does not record Chapman or any other officer ordering Risher to drop anything prior to the gunshots being fired. The audio does record Edwards stating that he did not see a gun.

         B. Procedural History

         The magistrate judge's R&R recommends the following disposition of the parties' motions: (1) grant defendants' motion for summary judgment as to plaintiffs' § 1983 claim for deliberate indifference; (2) grant defendants' motion for summary judgment as to plaintiffs' state law claims for vicarious liability, negligent hiring, and negligent training and supervision; (3) deny defendants' motion for summary judgment as to plaintiffs' claim under §1983 for improper search and seizure, excessive force, and due process violation; and (4) deny defendants motion in limine. The magistrate judge's R&R further recommends that Colleton County be dismissed from this action entirely, ECF No. 52.

         Defendants filed timely objections to the R&R, ECF No. 55, and plaintiffs have filed a response, ECF No. 56. The matter is now ripe for the court's review.

         II. STANDARDS OF REVIEW

         This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which specific, written objections are made, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). The magistrate judge's recommendation does not carry presumptive weight, and it is the responsibility of this court to make a final determination. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). A party's ...


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