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Childress v. City of North Charleston

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

August 27, 2019

TESSA RRGC CHILDRESS, Plaintiff,
v.
CITY OF NORTH CHARLESTON, SOUTH CAROLINA, JESSE R. DEMALO, individually and in her official capacity, and THOMAS E. BENNETT, individually and in his official capacity, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         The following matter is before the court on defendants City of North Charleston (“the City”), Jesse Demalo (“Demalo”), and Thomas Bennett's (“Bennett”)(collectively, “defendants”) motion for summary judgment, ECF No. 46. For the reasons set forth below, the court grants the motion for summary judgment as to the Fifth Amendment and Fourteenth Amendment claims against Demalo, and as to the Fifth Amendment, Fourteenth Amendment, stop and seizure, and false arrest claims against Bennett. The court denies the motion as to the stop and seizure, excessive force, and false arrest claims against Demalo and as to the excessive force claim against Bennett. In addition, at the hearing on the motion, the parties agreed to dismissal without prejudice of the state law claims against the City.

         I. BACKGROUND

         This case arises out of the arrest of plaintiff Tessa RRGC Childress (“Childress”). The following facts are undisputed. On March 4, 2015 around 9:30 p.m., someone called 911 to report two suspicious people and a suspicious vehicle in the parking lot of the caller's apartment complex. ECF No. 46-2 at 2. The caller described a white female around the age of 20 wearing a sweatshirt and shorts, a black male around the age of 20, and a red truck. The 911 caller did not report any criminal or illegal activity, and she provided her name and phone number. The area where the apartment complex is located is generally regarded as a high crime area. ECF No. 46-3, Childress Depo. 16:5-17:17; ECF No. 46-4, Demalo Depo. 70:8-13. Demalo was dispatched to the scene to investigate. It was dark, and Demalo was alone. Demalo Depo. 71:10-13.

         Childress explained that she was at the apartment complex because her mother lived there. Childress Depo. 85:14-24. Childress had just returned from a day trip to Fort Mill, South Carolina, and she was going for a quick walk in the neighborhood, which is something she normally does. Id. When Demalo arrived at the scene, she saw Childress, who matched the description of the woman provided on the 911 call. Demalo Depo. 10:11-14. Demalo explained to Childress why she was there and asked Childress for identification. Childress Depo. 98:15-20; Demalo Depo. 10:19-11:6. At this point, Childress's and Demalo's descriptions of the events diverge.

         Childress claimed that she provided her name and told Demalo that she lived in the complex, providing her mother's address. Childress Depo. 94:6-13. Childress told Demalo that her identification was in her purse inside her mother's home and that she would go retrieve it. Id. at 101:11-13. In an email to the police department, Childress claimed that Demalo “screamed at [her] to stop” and Childress stopped. ECF No. 46-5 at 1. Childress then explained that Demalo “approached [her] and intimidated [her] with a condescending question as to what [she] was doing and where [she] was going.” Id. Childress said that she thought she said “something to the effect of not being an animal or dog on the loose and that [she] was going to get [her] S. C. D. L. [sic] because the police officer had asked [her] for [her] I.D.” Id. Childress then claimed that she began walking towards her residence for a third time when Demalo grabbed her. Id.

         However, in her deposition, Childress said that when she turned to walk inside to get her identification the first time, Demalo grabbed Childress's arm and hands. Childress Depo. 101:11-17. Then Demalo's grip got tighter, which hurt Childress, so Childress started to pull away and grabbed onto a nearby fence because it was “something sturdy that would help [her] kind of get out of [Demalo's] grasp.” Id. at 101:19-25. Childress then said that she reached for her phone to call 911 to report that she was being assaulted, and at that point, Demalo threatened to use her taser gun. Id. at 101:25-102:2. She then claimed that Demalo put her hand up Childress's shirt and pinched Childress's breast and twisted her nipple. Id. at 102:2-4. Childress said this happened very quickly and while she was on the phone with 911 so that she was able to tell 911 that Demalo “had just tried to tear my breast off.” Id. at 104:11-15. However, on the 911 call recording, Childress told the 911 operator that “now she just squeezed my breast.” ECF No. 62-2, 911 Call Recording at 8:33. Childress then said she “was thrown head first to the ground, and my head popped __ felt like my head popped off, and I sent out a bloodcurdling scream.” Childress Depo. at 103:6-9. She then stated that she blacked out and couldn't “tell you why [she] ended up in the position [she] ended up in.” Id. at 103:1-4; 13-16.

         According to Demalo, when Demalo asked Childress if she lived in the apartment complex, Childress stated that she lived there and just pointed in a general direction, not at an exact residence. Demalo Depo. 11:2-6. Demalo stated that Childress would not give Demalo her name and date of birth but instead told Demalo to run the license plate of Childress's truck to confirm her identify. Id. at 11:11-15; 73:7. Demalo explained that she could not verify that Childress lived in the apartment complex by running her license plate. Id. at 11:17-20. At that point, Demalo said that Childress “became a little agitated, ” so Demalo asked for her supervisor to come to the scene. Id. at 11:20-13:4. Demalo explained that Childress tried to walk away, and that she and Childress “were still kind of going at this little back and forth.” Id. 13:12-14:5. Demalo kept asking for Childress's name and date of birth and Childress kept trying to walk away, so Demalo grabbed Childress's shoulder and told her to stop. Id. at 14:5-12. Childress then said “Oh my god, did you just grab me?” and according to Demalo, “things kind of went downhill from there.” Id. at 14:21-23.

         Demalo explained that Childress grabbed the fence and was “kind of like bear-hugging” it. Id. at 15: 1-6. Demalo stated that she was behind Childress and had both of her hands on top of Childress's hands to try to get Childress's arms open. Id. at 15:11- 13. Childress called 911, and at the time, Demalo did not know who Childress was calling. Id. at 23:7-21. Demalo explained that she had not yet located the reported suspicious male, and that she was concerned that Childress was calling someone to come ambush or attack Demalo, especially because a crowd was beginning to gather. Id. at 74:5-75:9. As a result of Demalo being alone, in the dark, not having searched Childress, and not knowing where the suspicious man was, Demalo stated that her suspicion was raised. Id. at 75:5-11.

         Demalo explained that she then asked for an assisting unit because she could not get Childress under control. Id. at 24:19-22. Demalo stated that Childress was actively struggling with her, and that she did not know for certain whether Childress kicked or hit her because “it was happening so fast.” Id. at 76:23-77:12. Neither party has explained whether Demalo denied grabbing Childress's breast.[1] Bennett arrived in response to the call, and the officers tried to put handcuffs on Childress. Id. at 25:9-21. During that struggle, Demalo said that Childress and Bennett both fell to the ground. Id. at 25:20-21. Demalo explained that “I think while we were getting, trying to get her, get control of the situation, somewhere maybe she went limp or her, the footing was lost. So, maybe together with us trying to get her in, into custody and her own situation or maybe the natural elements of the ground, all of that in total resulted in her up on the ground, ending up on the ground.” Id. at 31:2-9. After Childress hit the ground, she yelled out something like “I think my hip is broken” and Demalo called for EMS. Id. at 31:15-19. Bennett's account of the incident comports with Demalo's account. Bennett said that when he arrived at the scene, he observed Demalo and Childress “tussling, ” with Demalo attempting to remove Childress's arms from the fence and get them behind her back “so she could, I guess, effect the arrest.” ECF No. 46-6, Bennett Depo. 11:15-25. Bennet described Childress as “uncooperating” and “pulling her arm away, yelling and screaming.” Id. at 12:3-7. He believed that Demalo was effectuating a lawful arrest and went to assist her. Id. at 12:17-19.

         Bennett described his role, stating that he “removed [Childress] from the post, [he] tried to grab her other arm to get it behind her back, she pulled it away from [him], at which time [he] realized that the standing up part was not working out.” Id. at 13:7-11. Bennett then stated that he “placed [his] arms on both are both her [sic], both her arms and [he] looked over to the side and [he] saw a grass area where [hr] figured this could be a good spot to take her to the ground, which [he is] trained to do through South Carolina Criminal Justice Academy.” Id. at 13:11-16. Bennett then explained that “[a]s [he] took [his] left leg to step back to take [Childress] to the ground safely, it was which time [sic] the defendant [Childress] went limp, as [he] would say, caused [him] to lose [his] balance to that weight shift, and [they] both fell to the ground with [him] landing on top of her.” Id. at 13:16-21. Then at that point, Bennett and Demalo handcuffed Childress, and EMS was called.

         Childress was taken to the hospital, where it was determined that she dislocated her hip. After Childress received medical attention, she was taken to the police station to be processed. Demalo issued two tickets to Childress for disorderly conduct and for resisting arrest. ECF No. 56-1 at 17-18. Several months later, Childress emailed North Charleston Police Department (“NCPD”) to report this “police brutality.” ECF No. 46-5 at 1. The NCPD investigated the incident and issued a report. ECF No. 55-1. As a result of the investigation, Demalo was suspended for two weeks without pay and had to attend a remedial training program for about two months. ECF No. 51-4, Demalo Depo. 45:16- 19.

         Childress filed her complaint in the state court on March 3, 2017, bringing claims for malicious prosecution by the City, gross negligence by the City, violation of state civil rights by the City, and violation of federal civil rights pursuant to 42 U.S.C. § 1983 by the City, Demalo, and Bennett. The City removed the case to federal court on April 17, 2017, and on April 24, 2017, defendants filed a motion seeking to dismiss the two civil rights causes of action against the City, ECF No. 4. Childress sought an extension of time to file a response, ECF No. 7, which the court permitted, ECF No. 8; however, Childress never filed a response. Therefore, the court granted the motion to dismiss, ECF No. 10, and the remaining claims now before the court are malicious prosecution and gross negligence against the City, and § 1983 claims against Demalo and Bennett.

         Defendants filed their motion for summary judgment on March 15, 2019. ECF No. 46. Childress responded on April 28, 2019, ECF No. 51, and defendants replied on May 6, 2019, ECF No. 53. The court held a hearing on the motion on August 21, 2019.

         II. STANDARD

         Summary judgment is appropriate 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). “Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who, ‘after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Any reasonable inferences are to be drawn in favor of the nonmoving party. See Webster v. U.S. Dep't of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However, to defeat summary judgment, the nonmoving party must identify an error of law or a genuine issue of disputed material fact. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); see also Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003).

         Although the court must draw all justifiable inferences in favor of the nonmoving party, 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. See Anderson, 477 U.S. at 252; Stone, 105 F.3d at 191. Rather, “a party opposing a properly supported motion for summary judgment . . . must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat, 346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010)). If the adverse party fails to provide evidence establishing that the factfinder could reasonably decide in his favor, then summary judgment shall be entered “regardless of ‘[a]ny proof or evidentiary requirements imposed by the substantive law.'” Id. (quoting Anderson, 477 U.S. at 248).

         III. DISCUSSION

         Before diving into the substance of Childress's claims, it is worth first addressing a couple ancillary arguments made by the parties. The first relates to the court's ability to consider the post-incident internal investigation report that cited Demalo for NCPD policy violations. Defendants argue that this report is inadmissible as a subsequent remedial measure, but that even if the court does consider the report, an NCPD policy violation alone does not amount to a violation of constitutional rights. Childress argues that the report is admissible because it states that “[i]f you do answer the question, neither your statements nor any information that is gained by reason of such statements can be used against you in any subsequent criminal proceeding, but can be used against you in any disciplinary, administrative or civil proceeding.” ECF No. 51-1 at 20 (citing ECF No. 56-1 at 1). Childress argues that this is a civil proceeding and therefore use of the report should be allowed.

         Defendants are correct in that an NCPD policy violation alone does not constitute a constitutional violation. See Johnson v. S.C. Dep't of Corr., 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (“Plaintiff's allegation that Defendants did not follow their own policies fails, as the failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”). However, both parties' arguments about the admissibility of this document are unconvincing. First considering Childress's argument, the portion of the report quoted by Childress comes from the “administrative internal investigation garrity warning” and simply informs the officer who is making a statement that her statement could be used in a civil proceeding. It does not deem the entire report admissible in a civil proceeding. Moreover, a disclaimer on an internal investigation report does not trump the Federal Rules of Evidence.

         However, defendants miss the mark with their argument as well. Pursuant to Rule 407 of the Federal Rules of Evidence, “[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent remedial measure is not admissible to prove . . . culpable conduct.” This rule of evidence is meant to encourage defendants to fix dangerous conditions that allegedly caused harm without being concerned that doing so would be used as an admission of liability. Here, the investigation report simply looked into the alleged wrongdoing to determine if NCPD needed to take any action against Demalo. The report is not a “measure . . . that would have made an earlier injury or harm less likely to occur.” See also Misener v. Gen. Motors, 924 F.Supp. 130, 133 (D. Utah 1996) (“Rule 407, F.R.E. does not apply to post event reports and investigations.”). Absent any other challenges to the admissibility of this report, the court finds that the report is admissible and will consider it in determining whether summary judgment is warranted.[2]

         The second argument relates to the reinstatement of Childress's Monell claim, which is Childress's § 1983 cause of action against the City. The court dismissed this claim after Childress failed to respond to defendants' motion to dismiss seeking dismissal of the claim. Childress brings the claim up again in a rather vague manner, stating that “it could also be argued that this type of conduct [by police officers] could also be the basis of a Monell violation.” ECF No. 51-1 at 12. She does not explicitly argue that her Monell claim should be reinstated, but defendants contend that even if the court interprets this comment as seeking reinstatement, the court should not grant the request. The court agrees with defendants. First, it is unclear whether or not Childress wants the renewed ability to pursue this claim. Even if she does, she did not file any ...


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