United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
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.
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. 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'
R&R ably recites the relevant facts. 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.
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.
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
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.
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
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.
STANDARDS OF REVIEW
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