United States District Court, D. South Carolina
LaKrystal Coats, as Personal Representative of the Estate of Demetric Cowan, Plaintiff,
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
V. Hodges, United States Magistrate Judge
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
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.
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.
following facts are taken in the light most favorable to
Plaintiff, to the extent supported by the record.
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)].
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
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.
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.
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].
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.
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.
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
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].
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.
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.
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.
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.
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.
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.
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].
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
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.
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