United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
following matter is before the court on defendants City of
North Charleston (“the City”), Jesse Demalo
(“Demalo”), and Thomas Bennett's
“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.
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.
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
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.
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.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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).
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.
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.
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
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