Morgan v. Spivey, et al
Filing
124
ORDER granting in part and denying in part 110 Motion for Summary Judgment. The parties are DIRECTED to confer and file within 21 days from date of entry of this order a joint status report specifying the estimated length o f the trial, three alternative suggested trial dates, and suggested alternative dispute resolution techniques to be employed prior to trial in attempt to resolve the issues between the parties. Upon receipt of the parties' report, unless advance conference with the court is requested therein, the court will enter such further order as is warranted regarding pretrial and trial scheduling. Signed by District Judge Louise Wood Flanagan on 1/2/2019. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:16-CV-365-FL
MICHAEL J. MORGAN,
Plaintiff,
v.
RICKY J. SPIVEY, in his individual and
official capacities as a Wake County
Sheriff’s Deputy, CASEY L. MILLER, in
his individual and official capacities as a
Wake County Sheriff’s Deputy, JOSHUA
K. LEGAN, in his individual and official
capacities as a Wake County Sheriff’s
Deputy, and THE OHIO CASUALTY
INSURANCE COMPANY, individually,
and as subsequent subsidiary of Liberty
Mutual Insurance Company, as Surety,
Defendants.1
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ORDER
This matter is before the court on motion for summary judgment (DE 110), filed by
defendants Ricky J. Spivey (“Spivey”), Casey L. Miller (“Miller”), and Joshua K. Legan (“Legan”),
(collectively, “Sheriff Defendants”)2 and Ohio Casualty Insurance Company (“Ohio Casualty”). The
issues raised have been fully briefed and are ripe for ruling. For the reasons that follow, the court
grants in part and denies in part defendants’ motion.
1
The court constructively amends the caption of this order to reflect the dismissal of formerly-named defendant
Donnie Harrison, in his official capacity as Sheriff of Wake County, North Carolina.
2
Although previously dismissed, formerly-named defendant Donnie Harrison joins in defendants’ motion for
summary judgment.
STATEMENT OF THE CASE
Plaintiff commenced this action against Sheriff Defendants and Wake County, North
Carolina on June 10, 2016, alleging various claims against the parties including: negligence, gross
negligence, violation of civil rights pursuant to 42 U.S.C. §1983, suit on sheriff’s bond, assault and
battery, false imprisonment, malicious prosecution, and civil conspiracy. All claims stem from
events that occurred on July 5, 2014, wherein, in part, defendant Spivey conducted a traffic stop of
plaintiff and passenger Charles Johnson (“Johnson”) and issued citations to plaintiff for traffic
violations; an altercation ensued where defendant Miller shot plaintiff twice; and Sheriff Defendants
arrested plaintiff on various charges that were eventually dismissed, some following criminal trial.
On September 6, 2016, defendant Wake County, North Carolina voluntarily was dismissed
from this case. On September 15, 2016, Sheriff Defendants filed a motion for partial judgment on
the pleadings, which plaintiff responded to on October 6, 2016, also filing a motion to amend
complaint, in order to join Ohio Casualty. On November 14, 2016, this court granted plaintiff’s
motion to amend and denied as moot Sheriff Defendants’ motion for partial judgment on the
pleadings. On November 23, 2016, plaintiff filed amended complaint.
On January 20, 2017, defendant Ohio Casualty filed motion to dismiss. On February 15,
2017, Sheriff Defendants filed motion for partial judgment. On September 29, 2017, the court
granted in part and denied in part both Ohio Casualty’s motion to dismiss and Sheriff Defendants’
motion for partial judgment, finding the following claims to remain:
1) claims against defendants Spivey, Miller, and Legan regarding violation of civil
rights pursuant to 42 U.S.C. § 1983;
2) claims against Ohio Casualty to recover on sheriff’s bond for any breaches of the
bond accruing on or after October 6, 2013;
2
3) negligence and gross negligence claims against defendants Spivey, Miller, and
Legan, in their individual capacity, except regarding their failure to possess the
necessary training and experience to serve as deputies;
4) state-law assault and battery claims against defendants Spivey and Miller in their
individual capacity;
5) false imprisonment claims against defendants Spivey, Miller, and Legan, in their
official and individual capacities;
6) malicious prosecution claims against defendants Spivey, Miller, and Legan; and
7) civil conspiracy.
Plaintiff and defendants Spivey, Miller, and Legan filed consent motions for protective
orders regarding production of plaintiff’s tax returns and production of defendants Spivey, Miller,
and Legan’s personnel records, respectively. The court granted both motions on August 29, 2017.
On October 16, 2017, defendants filed motion to compel, related to plaintiff’s treatment at Western
Wake Treatment Center, to which plaintiff responded in opposition with motion for protective order.
On December 8, 2017, the court denied defendants’ motion to compel and granted plaintiff’s motion
for protective order.
On March 28, 2018, defendants’ filed the instant motion for summary judgment, relying on
statement of material facts3 as well as the following: plaintiff’s amended complaint; excerpts of
depositions from plaintiff, defendants Miller and Spivey, Johnson, plaintiff’s son Kyle Cox (“Cox”),
and expert witness Mike Sutton (“Sutton”); affidavits of Sheriff Defendants and Andrew Marshall,
3
Eastern District of North Carolina Local Rules 56.1(a)(1) require that the same be submitted “by a separate
statement, in number paragraphs, of the material facts as to which the moving party contends there is no genuine
dispute.” Defendants, however, have broken up their statement of material facts into sections, including the following
sections: facts describing the general nature of the case; deposition testimony from plaintiff; deposition testimony of
Johnson; deputy Spivey testimony from plaintiff’s criminal trial and affidavit; deputy Miller deposition, criminal trial
testimony and affidavit; deputy Legan criminal trial testimony and affidavit. In essence, instead of providing the court
with a set of material facts as to which defendants contend there is no genuine dispute, defendants have provided a
recounting of what occurred from multiple perspectives, including from the perspective of each Sheriff Defendant, not
all of which are consistent.
3
assistant district attorney for Wake County; warrants, indictments, and order for arrest in underlying
criminal case; excerpts from criminal trial tr., including testimony of Sheriff Defendants; letter from
Colon Willoughby, district attorney for Wake County; dash cam video from patrol car of defendant
Miller; expert report of Mike Sutton; and google maps image of the field where the alleged events
took place.
Plaintiff filed opposition, relying on statement of material facts as well as the following:
crime scene photos and drawing; illustrative demonstration videos and photos; dash cam video from
patrol car of defendant Miller; various photos of the field where the alleged events took place; state
bureau of investigation (“SBI”) interview of defendant Legan; affidavits of James Smith, Sr.,
plaintiff’s father in law, as well as affidavits from people who live or work in Apex, North Carolina
and are familiar with defendant Spivey; expert reports of W. Ken Katsaris (“Katsaris”), Dave F.
Cloutier (“Cloutier”), and Jimmy Henley, Jr. (“Henley”); arrest warrants for plaintiff; deposition
excerpts including from plaintiff, Sheriff Defendants, Johnson, Cox, expert witnesses Sutton and
John Combs, as well as people familiar with defendant Spivey; and excerpts from criminal trial tr.,
including testimony of Johnson and Sheriff Defendants.4
STATEMENT OF THE FACTS
As defendants have moved for summary judgment, the court recounts the facts in light most
favorable to plaintiff except as otherwise noted below.5
A.
Prior to Shooting Event on July 5, 2013
4
Additionally, on September 10, 2018, plaintiff filed notice of subsequently-decided authority, citing
Livingston v. Kehagias, No. 5:16-CV-906-BO, 2018 WL 3398113, at *1 (E.D.N.C. July 12, 2018).
5
Few facts are undisputed, and plaintiff and defendants’ versions of events stand in stark contrast, with both
sides disputing the other side’s account.
4
Plaintiff was the owner and chief operator of “Mike’s Tree Service,” a business which
provides tree and brush removal services for customers in and around the Wake County area. (DE
111 ¶ 1; DE 115 ¶¶ 1, 107).
On July 5, 2013, plaintiff and his employee, Johnson, were working a tree and brush removal
job for a customer who lived on Wimberly Road in Apex, North Carolina. (DE 111 ¶ 1; DE 115 ¶¶
1, 108). This job required plaintiff and Johnson to cut down large amounts of tree limbs and brush
and remove them from customer’s property. (DE 115 ¶ 108). Plaintiff and Johnson were using a
Dodge Ram diesel truck to haul loads of debris from the property to a large field located at 1116
Wimberly Road, a field plaintiff regularly uses for his business as a brush and debris dumping site.
(DE 111 ¶ 2; DE 115 ¶¶ 2, 108).
Plaintiff did not have a valid driver’s license on July 5, 2013, and the truck involved in the
incident was not titled in plaintiff’s name. (DE 111 ¶¶ 2, 9-10; DE 115 ¶¶ 2, 9-10, 108).
Additionally, the truck involved in the incident was never titled in plaintiff’s name, tags were never
issued for the truck in plaintiff’s name, and plaintiff did not have insurance on the truck. (DE 111
¶ 11; DE 115 ¶ 11).
The field at 1116 Wimberly Road is private land, titled in the name of plaintiff’s father in
law, James Smith, and plaintiff is allowed use of the property “as if he is the title owner.” (Aff.
James Smith (DE 116-9) at 1; DE 111 ¶ 12; DE 115 ¶¶ 12, 108). This field is approximately 300
yards in length, with the south end being the widest part containing about 7,500 square feet of
surface and the end where the two vehicles are found parked on the right-hand side in the distance
in the below picture. (DE 115 ¶ 109).
5
(DE 116-7 at 14).6
Plaintiff alleges the field has multiple vehicle entrance points that were and are regularly
used by cars and trucks, including a northern entrance, not pictured above, a middle entrance, and
a southern entrance. (DE 115 ¶ 13; DE 111 ¶ 13). The parties agree that in order to access the
northern entrance on the day in question, a ditch would have to be driven over, although plaintiff
alleges this “grassy ditch is shallow and can be easily driven over by cars or trucks.” (DE 111 ¶ 14;
DE 115 ¶¶ 14, 110). Plaintiff additionally alleges that Sheriff Defendants were familiar with
plaintiff, knew that he regularly utilized his family’s private field on Wimberly road for his tree
removal business, and knew of the multiple entrances and exit points to the field. (DE 111 ¶ 14; DE
115 ¶¶ 14, 111).
6
Defendants contend that some of the photos submitted by plaintiff do “not depict the condition of the field
as it was on July 5, 2013.” (DE 111 ¶ 14).
6
As part of a several hour job on the day in question, plaintiff and Johnson hauled numerous
loads of debris in the truck from the job site to the field for dumping. (DE 115 ¶ 112). During the
tree removal job, a patrol car drove by plaintiff and Johnson multiple times driven by defendant
Spivey. (Id.¶¶ 112-13).7
B.
Traffic Stop by Defendant Spivey
At approximately 7:00 p.m., plaintiff was driving with passenger Johnson southeast on
Wimberly Road, towards the field, when they passed defendant Spivey in his patrol car in the
opposite lane of travel. (DE 111 ¶¶ 2, 18, 114; DE 115 ¶¶ 2, 18, 114). Defendant Spivey knew that
plaintiff previously had his driving license suspended. (DE 111 ¶ 45; DE 115 ¶ 45). Plaintiff saw
defendant Spivey slow down and begin to use a side road to turn around, and plaintiff proceeded
around the curve in the road and turned onto the north end of the field. (DE 115 ¶ 114).
Defendant Spivey drove to the south end of the field in order to enter the field. (DE 111 ¶
20; DE 115 ¶¶ 20, 115). Once on the field, defendant Spivey drove from the south end of the field
to the north end where plaintiff and Johnson were already outside of the truck, unloading the bed
of the truck. (DE 111 ¶ 20; DE 115 ¶¶ 20, 115-16). When defendant Spivey initiated the traffic
stop, he informed the Wake County law enforcement dispatcher of the stop. (DE 111 ¶ 2; DE 115
¶ 2).
When Spivey pulled his patrol car up to plaintiff’s location, he told plaintiff to walk over and
produce his license and registration, which plaintiff did. (DE 115 ¶ 116). Defendant Spivey,
7
Plaintiff has additionally put forth evidence in the form of multiple depositions and affidavits submitted by
fact witnesses in this case who lived and/or worked in the local area or know defendant Spivey, that defendant Spivey
“has a reputation in his patrol community (which includes Plaintiff’s residence) for being overly aggressive and mean
toward citizens,” has used “unnecessary and excessive force against citizens who live in Plaintiff’s community,” and
has “a personal vendetta out against Plaintiff.” (DE 115 ¶ 113).
7
plaintiff, and Johnson remained calm throughout the stop, in which defendant Spivey issued plaintiff
citations for an expired registration, expired inspection, driving while license revoked, and for
careless and reckless driving and went over court dates with plaintiff. (DE 111 ¶¶ 3, 21; DE 115 ¶¶
3, 22, 116).
C.
Defendants Legan and Miller’s Arrival
Defendants Legan and Miller were 20 miles away from the scene when they heard over their
radio systems that defendant Spivey was initiating a traffic stop with plaintiff. (DE 115 ¶ 121;
Legan dep. (DE 116-23) at 41:1-2). Defendants Legan and Miller got into their separate patrol cars
and drove through two-lane residential streets toward the Wimberly Road location, sometimes
exceeding 100 miles per hour, with numerous cars moving out of the way and pulling off the road
as defendants Legan and Miller drove past. (DE 115 ¶ 121; dash cam footage (DE 116-6) at
7:25:30-35).
Defendants Legan and Miller parked their patrol cars along the side of the road next to the
field. (Dash cam footage (DE 116-6) at 7:30:10-14). While defendant Spivey was writing citations,
he instructed defendant Legan or both defendants Legan and Miller to search around plaintiff’s
vehicle to see if any contraband had been thrown out of the vehicle. (DE 111 ¶ 82; DE 115 ¶¶ 82,
122).8 Plaintiff alleges that thereafter Legan began a search of plaintiff’s truck without the consent
of either plaintiff or Johnson, including a search of the truck’s cab, consoles, and glove box, which
revealed no contraband, no evidence of any violation of law, and no weapons. (DE 111 ¶ 82; DE
8
Plaintiff additionally alleges that when plaintiff told defendant Legan that he did not consent to the search
of his truck, defendant Legan responded by stating “shut the f*** up” and “when you go to law school you can tell us
what we can and cannot do.” (DE 115 ¶ 122; Johnson dep. (DE 116-24) at 116:17-117:5; Morgan dep. (DE 116-20) at
163:10-23; criminal trial tr. (DE 116-37) at 370:1-371:7).
8
115 ¶¶ 82, 122-23). 9
D.
Shooting Incident
After receiving his traffic tickets and misdemeanor criminal citation, plaintiff asked
defendant Spivey if he was free to go; defendant Spivey responded “yes,” telling plaintiff he was
free to leave and was not under arrest. (DE 111 ¶ 21; DE 115 ¶¶ 21, 124). Plaintiff turned around
and walked away from defendant Spivey’s vehicle and toward his own truck, while defendants
Miller and Legan remained standing by defendant Spivey’s vehicle. (DE 115 ¶ 124).
Plaintiff was upset he had received a citation for careless and reckless driving and told
Johnson to wait outside while plaintiff got into his truck and began driving along the dirt road on
the field, away from defendant Spivey’s car and toward the south end of the field. (DE 111 ¶ 22;
DE 115 ¶¶ 22, 124). Once plaintiff had driven away from the location of defendant Spivey’s patrol
car, he increased his speed and performed several “fishtails” and “donuts,” while remaining
completely on the field. (DE 111 ¶¶ 4, 22; DE 115 ¶¶ 4, 22, 125; dash cam footage (DE 116-6) at
7:42:00-44).10
Defendant Spivey performed a three-point turnaround and drove in the direction of plaintiff’s
truck at the south end of the field, not exiting the field via the middle entrance. (DE 111 ¶¶ 5, 23;
DE 115 ¶¶ 5, 23, 126; dash cam footage (DE 116-6) at 7:41:52-42:46). Johnson also walked down
the field towards plaintiff while defendants Miller and Legan walked towards their patrol cars
parked on the side of the highway. (Dash cam footage (DE 116-6) at 7:42:33-48).
9
Defendants do not respond to these allegations specifically, but instead argue that defendant Legan had
probable cause to search plaintiff’s vehicle. (See DE 113 at 5-7). It thus appears these facts are undisputed.
10
Plaintiff further alleges that Johnson heard one of the defendant deputies say, “Are we going to get him? We
can’t do anything to him on his own property. If his ass touches the road he is ours, but if he doesn’t touch the road there
is nothing we can do.” (DE 115 ¶ 125; criminal trial tr. (DE 116-37) at 375:1-10).
9
Plaintiff stopped his truck, reversed into the path of defendant Spivey’s car with his truck
pointed towards the tree line, and then pulled his truck forward a few feet, as defendant Spivey
pulled forward and came to a stop, with both vehicles coming to a resting point as seen below. (DE
111 ¶¶ 6, 23; DE 115 ¶¶ 6, 23, 127; dash cam footage (DE 116-6) at 7:42:46).
As alleged by plaintiff, “[t]he south end of the field where Plaintiff stopped his truck is a very large
open area, with substantial and obvious room to drive a vehicle around the location of Plaintiff’s
truck.” (DE 115 ¶ 24).
After plaintiff stopped his truck, the truck was in gear during the entire ensuing transaction
with defendant Spivey. (DE 111 ¶ 25; DE 115 ¶ 25). Plaintiff alleges that “[a]s Spivey stopped his
patrol car he immediately yelled through his open driver’s window for [plaintiff] to move his truck”;
in response plaintiff yelled “Go the f*** around me” and “This is f*****g private property.” (DE
111 ¶¶ 6, 23, 27; DE 115 ¶¶ 6, 23, 27, 129; Johnson dep. (DE 116-24) at 66:24-67:6; criminal trial
tr. (DE 116-37) at 377:20-24).
10
Plaintiff alleges that defendant Spivey, without issuing any orders and “within seconds of
stopping his [] car instantly exited his vehicle in an aggressive manner,11 extended his ASP baton,”
and began approaching the driver side of plaintiff’s truck “in an obviously hostile manner.” (DE
115 ¶ 129; Morgan dep. (DE 116-20) at 294:10-11 (“It all happed so fast and I – I weren’t given no
commands”); dash cam footage (DE 116-6) at 7:42:46-43:02; Johnson dep. (DE 116-37) at 378:1014 (“He jumped out of his vehicle, slung that baton . . run around . . . to the driver’s side”); Legan
dep. (DE 116-23) at 47:13-17 (“Q. You testified in this case that you saw that Deputy Spivey had
an ASP baton on July 5th, 2013? A. Yes, sir. Q. You saw him actually extend it? A. I believe so,
yes, sir”)).
Plaintiff alleges first that defendant Spivey “forcefully struck Plaintiff in the head with the
baton.” (DE 115 ¶ 131; see also Johnson dep. (DE 116-37) at 379:18-20 (“it looked to me like he
slung that baton and actually hit Michael upside the head two times with it”); Morgan dep. (DE 11620) at 188:13-16, 300:7-13). Plaintiff additionally alleges that defendant Spivey, “who was 6’2” and
270 pounds at the time . . . grabbed onto the chest and t-shirt of Plaintiff, who in contrast was only
5’6” and 145 pounds at the time . . . and Spivey began forcefully pulling him literally out of the
window of Plaintiff’s truck.” (DE 115 ¶ 131).12
11
At this point, the subsequent interaction among plaintiff and Sheriff Defendants occurred outside the view
of the dash cam, where defendant Miller was in the process of moving his vehicle. (See dash cam footage (DE 116-6)
at 7:42:48-52).
12
Although it appears all parties agree that “Deputy Spivey grabbed Plaintiff by his shirt” and “his shirt
ripped,” defendants state that “Deputy Spivey did not pull Plaintiff out of the truck.” (DE 111 ¶ 28; DE 115 ¶¶ 28, 131)
However, it appears undisputed that defendant Spivey attempted to pull plaintiff out of the truck. (See Legan dep. (DE
116-39) at 158:19-21 (“And at that point Deputy Spivey had already engaged the defendant and grabbed ahold of him
and was attempting to extract him from the vehicle.”); id. at 167:14-22 (“Q: And do you recall letting the State Bureau
of Investigation know that when you were approaching the truck Deputy Spivey had Michael Morgan maybe a third of
the way through the window? A. If that is coming from the report, I would say that is fair to say. Like I said, he had his
hands on him and he was attempting to extract him from the vehicle and I believe as Deputy Spivey testified earlier, at
some point he may have had him out of the seat and partially through the window . . . .”); DE 116-8 at 2 (“Spivey started
to attempt to pull Morgan out of the truck . . . .”)).
11
During this time, defendants Legan and Miller had gotten into their patrol cars, drove quickly
and briefly down the road to the southern end of the field, stopped their patrol cars, exited, and ran
towards the truck. (Dash cam footage (DE 116-6) at 7:42:46-43:02). Defendant Legan drew his
Taser weapon, and defendant Miller drew his service pistol. (DE 115 ¶ 133; criminal trial tr. (DE
116-38) at 188:16-24). Defendant Miller ran to the passenger window of the truck with his pistol
loaded, cocked, and pointed at plaintiff. (DE 115 ¶ 133; Johnson dep. (DE 116-24) at 72:8-22;
criminal trial tr. (DE 116-37) at 389:21-25). Defendant Legan approached the vehicle from the
driver’s side and positioned himself directly behind deputy Spivey, and in position to view the entire
event within arm’s length of defendant Spivey. (DE 115 ¶ 133; criminal trial tr. (DE 116-39) at
158:17-25, 159:1-16).
As defendant Spivey pulled plaintiff from the driver’s seat, plaintiff’s foot came off the brake
of the truck, and it began idling forward. (DE 115 ¶ 134; see also DE 111 ¶ 28; Johnson dep. (DE
116-24) at 142:17-143:22 (Johnson testifying he never heard the engine rev, that the truck was
“sitting there idle,” and the rear tires did not spin); Morgan dep. (DE 116-20) at 289:15-290:3 (“That
truck rolled forward. Spivey – Spivey knows as well as I do, I mean, he grabbed ahold of me, pulled
me up, truck rolled forward.”).13 Defendant Legan testified plaintiff “was maybe 1/3 through the
13
Although providing somewhat different details about the moments surrounding the shooting, defendants
Spivey, Miller, and Legan each testified at plaintiff’s criminal trial that instead plaintiff hit the gas in such a way that
the tires of the truck spun and this in turn caused defendant Spivey to be drug alongside the vehicle. (See DE 111 ¶¶
7, 53-56, 62, 88; DE 112-8 at 105:14-106:16; DE 112-11 at 191:3-21; DE 112-13 at 159:14-16). Including the testimony
cited above, plaintiff submits photographic evidence and expert testimony disputing defendants’ characterization. (See,
e.g. Katsaris expert report (DE 116-13) at 13 (“It is the combined testimony of the officers, that Morgan ‘floored’ the
accelerator and caused the trucks dual wheels to spin, and the vehicle to throw up dirt from the spinning wheels. This
description of the ‘spinning wheels’ is not supported by the very clear and close up photos that reveal no tire marks
consistent with the tires spinning . . . . Thus, the movement of the truck, testified to as approximately seven (7) feet by
Spivey, does not support that he was dragged by the accelerating vehicle either.”). As stated by plaintiff’s expert witness
Cloutier:
Spivey indicated at Morgan’s criminal trial that he was dragged approximately 7-8 feet and that he felt
his feet go underneath him as he was being dragged. However, there were no reviewed photos or
12
window and the truck started moving . . . .” (DE 116-8 at 2; criminal trial tr. (DE 116-39) at 167:1424). Plaintiff alleges at no time did he receive any commands from any of the Sheriff Defendants.
(Morgan dep. (DE 116-20) at 294:20-25; Johnson dep. (DE 116-24) at 137:17-138:9 (testifying he
never heard or saw Sheriff Defendants give instructions stating he did not “ever see or hear these
deputies, any three of them, ever give Mr. Morgan a chance to get out of the truck in any way before
Deputy Spivey reached in.”)).
When the truck started moving, defendant Spivey dropped plaintiff back into the driver’s seat
where he landed with his right hand back on the steering wheel; plaintiff pushed his foot back on
the brake to stop the truck. (DE 115 ¶ 135; Morgan dep. (DE 116-20) at 179:15-16 (“I noticed the
truck was rolling, so obviously I started to get on the brake”); id. at 192:6-13).
Defendant Miller was standing right next to the passenger window of plaintiff’s truck and,
when he saw the truck moving forward, he took aim and fired his revolver twice at close range,
hitting plaintiff both times, first in plaintiff’s left leg and second through plaintiff’s right hand that
was holding on to the steering wheel. (DE 115 ¶ 139). Defendant Miller moved alongside the
other documentation, which indicated any scratches, scrapes or tears to shoes or clothing or any dirt
adhering to shoes, socks, trousers or other clothing worn by Spivey which could have been indicative
of being dragged based upon Spivey’s description . . . . However, the statements of all three defendant
officers that Morgan floored the accelerator and began spinning the rear tires are directly contradicted
based upon review of the scene photographs which documented the area of the field where this event
transpired. The immediate area 7-8 feet and farther behind the rear tires of the final resting location
of Morgan’s truck revealed no indication of tires being spun or ruts produced due to spinning tires.
In contrast, review of the video revealed Morgan’s truck spinning tires, throwing up dirt from the rear
tires and creating ruts on numerous occasions as Morgan performed the “donuts” . . . . Based upon
these observations, the absence of evidence indicative of spinning tire ruts would more likely than not
indicate that Morgan’s truck moved forward at a much slower rate of acceleration than described by
the defendant officers. Moreover, it would appear unlikely that Miller would have been able to raise
his weapon and fire two accurate shots at Morgan through the open passenger window if, in fact,
Morgan accelerated the truck’s engine to the degree that it caused the tires to spin while the truck was
in drive.
(Cloutier expert report (DE116-14) at 11-12).
13
vehicle the seven to eight feet it rolled while taking the two shots in immediate succession; after the
shots, the vehicle stopped after rolling another foot. (DE 115 ¶ 140; criminal trial tr. (DE 116-38)
at 193:12-16, 22-25 (defendant Miller testifying truck rolled seven to eight feet and stopped within
a foot thereafter); criminal trial tr. (DE 116-40) at 106:15 (defendant Spivey testifying truck rolled
seven to eight feet); see also criminal trial tr. (DE 116-37) at 410:4-8 (witness Johnson testifying
“[a]nd then the truck started rolling forward, and so the truck was on past me when it started rolling
forward. The truck had rolled forward, it looked to me like five or six feet when the shots were fired,
but they are saying seven or eight, but it looked to me like five or six.”)).
Plaintiff was able to put the truck in park with his left hand, open his driver door, and
collapse on the ground, calling out “I need EMS! I need an ambulance!” (DE 115 ¶ 142). Defendant
Miller turned his revolver to Johnson and told Johnson to “Get the f*** down.” (Id. ¶ 143; Johnson
dep. (DE 116-24) at 142:8-12, 145:7-21). Johnson complied, was handcuffed, and left face down
on the ground. (DE 115 ¶ 143).14
E.
Charges Against Plaintiff
Defendants Spivey, Miller, and Legan began talking amongst themselves until other
personnel arrived on scene in response to their radio call that shots had been fired. (DE 115 ¶ 144).
Morgan was taken into custody and transported to Duke University Medical Center for emergency
treatment. (Id. ¶ 145). Plaintiff had gunshot wounds and two large lumps on his head. (Id.; criminal
trial tr. (DE 116-37) at 380:6-21). Following his medical treatment at Duke, plaintiff was then
transferred to the Wake County Jail, Central Prison and Craven County Correctional Institute where
14
Plaintiff additionally alleges that defendant Spivey walked around the truck and said to the handcuffed
Johnson, who was asking where plaintiff had been shot and expressing that plaintiff needed medical help, “It doesn’t
f*****g matter. That’s what happens when you play with the big dogs.” (DE 115 ¶ 143; Johnson dep. (DE 116-24) at
147:17-19; criminal trial tr. (DE 116-37) at 390:6-8).
14
he was incarcerated for over four months. (DE 115 ¶ 145).
Plaintiff was charged with assault with a deadly weapon on a law enforcement officer;
assault inflicting serious injury on a law enforcement officer; assault on a law enforcement officer;
assault; felony habitual assault; and kidnaping a law enforcement officer. (DE 111 ¶ 8; DE 115 ¶¶
8, 145).15
On July 6, 2013, a Wake County magistrate judge issued warrant for plaintiff’s arrest for assault
with a deadly weapon on a law enforcement officer, and thereafter a grand jury on October 8, 2013,
issued a true bill of indictment against plaintiff for assault with a deadly weapon on a law
enforcement officer and assault inflicting physical injury on a law enforcement officer. (DE 1124).16 On July 9, 2013, a Wake County magistrate judge issued warrant for plaintiff’s arrest for
felony habitual assault, and thereafter a grand jury on October 8, 2013, issued a true bill of
indictment against plaintiff for assault on a law enforcement office and felony habitual assault. (DE
112-5). On August 19, 2014, a grand jury issued a true bill of indictment against plaintiff for
kidnaping a law enforcement officer, and an order for plaintiff’s arrest was issued on August 20,
2014 for kidnaping a law enforcement officer. (DE 112-6). After his pre-trial release from his
four-month imprisonment, plaintiff was placed under house arrest during the entire period leading
15
On November 13, 2013, all charges related to the traffic citations issued by defendant Spivey to plaintiff were
dismissed by assistant district attorney for Wake County. (DE 112-7; DE 111 ¶ 36; DE 115 ¶ 36).
16
It appears the parties disagree whether plaintiff was additionally charged with “resist[ing], delay[ing], and
obstruct[ing]” defendant Spivey as defendant Spivey “was discharging and attempting to discharge a duty of his office,
namely the release of the Defendant and the disengagement of a traffic stop after issuing citations to the Defendant” in
violation of N.C. Gen. Stat. § 14-223. (Indictment (DE 112-4); DE 113 at 3 (defendants stating plaintiff was charged
with the offense of Resist, Dely, Obstruct); DE 115 ¶ 146 (plaintiff denying he was so charged)). Although defendants
have submitted the quoted indictment above, the section regarding the charge of Resist, Delay, Obstruct is missing
information, as noted by the trial judge in plaintiff’s criminal case, and agreed to by the prosecutor. (Criminal trial tr.
(DE 116-35) at 3:17-4:16). The prosecutor also stated “[t]hat was not originally an original charge” and moved to
dismiss the charge before the commencement of trial, which the court allowed, stating “it doesn’t allege an offense” and
“I think it will just show that the State voluntarily is dismissing that.” (Id.).
15
up to and through his criminal trial in June 2015. (DE 115 ¶ 145).
Plaintiff pleaded “not guilty” to all charges and a jury trial was held in Wake County
Superior Court. (DE 115 ¶ 146). At the close of the government’s case, the court granted plaintiff’s
motion for directed verdict as to the kidnaping charge. (DE 111 ¶ 106; DE 115 ¶ 106). At the close
of the trial, plaintiff was acquitted by unanimous jury verdict on June 4, 2015, as to the remaining
charges. (DE 111 ¶ 106; DE 115 ¶¶ 106, 148).
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate where “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). The party seeking summary judgment “bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
Once the moving party has met its burden, the non-moving party must then “come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation omitted). Only disputes
between the parties over facts that might affect the outcome of the case properly preclude the entry
of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding
that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only
if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).
“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the evidence
16
and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id.
at 249. In determining whether there is a genuine issue for trial, “evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in [non-movant’s] favor.” Id. at 255; see
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to
be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must
be viewed in the light most favorable to the party opposing the motion.”).
Nevertheless, “permissible inferences must still be within the range of reasonable probability,
. . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary
inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v.
Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as
a matter of law is warranted where “the verdict in favor of the non-moving party would necessarily
be based on speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489
(4th Cir. 2005). By contrast, when “the evidence as a whole is susceptible of more than one
reasonable inference, a [triable] issue is created,” and judgment as a matter of law should be denied.
Id. at 489-90.
B.
Analysis
Defendants argue that plaintiff’s claims brought pursuant to § 1983 for violations of
plaintiff’s Fourth Amendment rights fail as a matter of law and that Sheriff Defendants are entitled
to qualified immunity.17 Defendants additionally argue that plaintiff’s state-law claims fail as a
17
Although defendants argue generally that “individual defendants did not violate any constitutional right” but
if the court determines otherwise “the defendants are entitled to qualified immunity because such right was not clearly
established in the law,” (DE 113 at 17), defendants only offer specific argument and case support regarding defendants
Miller and Spivey’s use of force against plaintiff, (id. at 19-21; DE 118 at 2-5, 8-9). However, plaintiff addresses
defendants’ qualified immunity defense for additional applicable claims. (DE 114 at 8 (regarding defendant Spivey’s
traffic stop), 15-16 (regarding defendant Spivey’s arrest of plaintiff)). The court will address all qualified immunity
17
matter of law and, where applicable, Sheriff Defendants are entitled to public officer’s immunity.
The court addresses each set of arguments in turn below.
1.
Plaintiff’s Fourth Amendment Claims Brought Pursuant to § 1983
Plaintiff’s Fourth Amendment claims brought pursuant to § 1983 allege the following
violations: 1) defendant Spivey’s illegal traffic stop, 2) defendant Legan’s illegal search of plaintiff’s
truck during the traffic stop, 3) defendant Spivey’s illegal arrest of plaintiff, 4) defendant Spivey’s
excessive use of force against plaintiff, 5) defendant Miller’s excessive use of deadly force against
plaintiff, and 6) defendant Legan’s bystander liability. The court addresses each in turn below.18
a.
Defendant Spivey’s Traffic Stop
The temporary detention of an individual during a traffic stop constitutes a Fourth
Amendment seizure. Whren v. United States, 517 U.S. 806, 809-10 (1996). Because a routine
traffic stop is more like an investigative detention than a custodial arrest, the court evaluates a traffic
stop under the test set forth in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Green, 740 F.3d
275, 279 (4th Cir.). Under this inquiry, the officer’s decision to stop the vehicle must be both
“justified at its inception” and adequately “limited both in scope and duration.” United States v.
Digiovanni, 650 F.3d 498, 506-07 (4th Cir. 2011). A police officer is entitled to initiate a Terry stop
arguments made, as needed, where, as here, plaintiff has had the opportunity and has taken the opportunity to address
this issue. See Noel v. Artson, 297 F. App’x 216, 219 (4th Cir. 2008) (declining to entertain defendants interlocutory
appeal denying qualified immunity where “plaintiffs would suffer prejudice because they had no chance to address the
issue in their opposition to summary judgment.”).
18
Although plaintiff’s complaint names defendants Spivey, Miller, and Legan individually and in their official
capacities, plaintiff’s federal claims pursuant to § 1983 are against defendants in their individual capacity only in that
the court previously dismissed plaintiff’s claims regarding Sheriff Defendants’ failure to possess the necessary training
and experience to serve as deputies, (DE 96 at 34), and in that plaintiff’s complaint does not allege that defendants acted
pursuant to a regulation, policy, or practice authorizing unconstitutional action against him, (see Am. Compl. (DE 61)
¶¶ 199-200; see also Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 335 n.11 (4th Cir. 2009) (citing
Jackson v. Long, 102 F.3d 722, 731 (4th Cir.1996)).
18
only where it is “supported by a reasonable and articulable suspicion that the person seized is
engaged in criminal activity.” United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011) (internal
quotation marks omitted).
It is undisputed that prior to initiating the traffic stop at issue, defendant Spivey knew that
plaintiff previously had his driving license suspended at some point in the three weeks prior to the
incident. (DE 111 ¶ 45; DE 115 ¶ 45 (“At that time, the most Defendant Spivey can say is that he
claims to have had knowledge of a past suspension of Plaintiff’s license or out of date registration”);
Spivey dep. (DE 118-1) 200:1-18)).19
Defendant Spivey’s knowledge of plaintiff’s past license suspension is sufficient to support
a finding of reasonable suspicion. Although the Fourth Circuit has not directly addressed this
situation in published opinion, the Fourth Circuit’s unpublished opinions as well as the weight of
other circuit’s law support a holding that defendant Spivey acted with reasonable suspicion in
initiating a traffic stop based on less than three-week old information that plaintiff was driving with
a revoked license. See United States v. Trappier, 447 F. App’x 463, 465 (4th Cir. 2011) (holding
“given the agents’ knowledge that Trappier’s driver’s license was suspended [based on an arrest that
occurred eight days prior], the agents had probable cause to effect the traffic stop . . . .”); United
States v. Spivey, 64 F. App’x 905, 906 (4th Cir. 2003) (“Our review of the record of the suppression
hearing convinces us that the officers possessed reasonable suspicion that [defendant] was driving
on a suspended license, and were justified in pursuing and stopping him,” where the officer had
19
Defendants additionally appear to argue that defendant Spivey initiated the traffic stop based on his belief
that plaintiff had “an expired registration,” (DE 113 at 5); however, it is undisputed that when defendant Spivey saw
plaintiff on the road, they were driving in opposite lanes of traffic, (DE 111 ¶¶ 2, 18, 114; DE 115 ¶¶ 2, 18, 114), and
defendant Spivey further testified that when he passed plaintiff, he “couldn’t see any of his tag information to know the
details of it,” such as whether “the sticker on the tag [was] up to date,” (Spivey dep. (DE 116-22) at 194:22-195:7).
19
confirmed at some point in the prior two months before the traffic stop that defendant’s license was
suspended); see also United States v. Irons, 537 F. App’x 221, 223 (4th Cir. 2013) (“In his
investigation, the officer learned that Irons had a revoked driver’s license, and Irons was observed
driving a car without a valid license along the anticipated route the informant had provided. Thus,
we conclude that the stop did not violate Irons’ Fourth Amendment rights.”).20
The undisputed evidence establishes defendant Spivey had reasonable suspicion to stop
plaintiff and, accordingly, the court grants defendants’ motion for summary judgment regarding the
traffic stop.21
b.
Defendant Legan’s Search of Plaintiff’s Truck
During a routine traffic stop, an officer “may request a driver’s license and vehicle
registration, run a computer check, and issue a citation.” United States v. Rusher, 966 F.2d 868,
876-775 (4th Cir.1992). “[O]nce the driver has demonstrated that he is entitled to operate his
vehicle, and the police officer has issued the requisite warning or ticket, the driver ‘must be allowed
to proceed on his way.’” United States v. Branch, 537 F.3d 328, 336 (4th Cir.2008) (citations
omitted). “Any further investigative detention . . . is beyond the scope of the Terry stop and
therefore illegal unless the officer has a reasonable suspicion of a serious crime or the individual
20
Other circuits have held similarly. See, e.g., United States v. Sandridge, 385 F.3d 1032, 1036 (6th Cir.2004)
(holding three-week old information about the status of a driver’s license sufficiently current to provide reasonable
suspicion regarding the commission of the offense of driving with a suspended license); United States v. Pierre, 484 F.3d
75, 84 (1st Cir.2007) (finding information about a suspended license five months old was sufficient for reasonable
suspicion based in part on “testimony suggest[ing] that Pierre’s license was suspended on an ongoing basis, rather than
for a short period of time, making the suspicion that it was still inactive some five months later more reasonable”); see
also United States v. Laughrin, 438 F.3d 1245, 1248 (10th Cir. 2006) (22-week-old information about a defendant driving
on a suspended license was too dated without additional indicia of reliability).
21
Given the court’s holding above, it is unnecessary to address the defendants’ additional argument, that
defendant Spivey observed plaintiff’s “truck leave the road and cross a ditch in a reckless manner” and saw “limbs and
trees falling from Plaintiff’s truck,” (DE 113 at 5), facts plaintiff disputes at length, (see, e.g., DE 115 ¶ 45). It is
additionally unnecessary to address plaintiff’s arguments concerning whether defendant Spivey is entitled to qualified
immunity. (DE 114 at 8).
20
consents to the further detention.” United States v. Farrior, 535 F.3d 210, 217 (4th Cir. 2008),
abrogated on other grounds by Rodriguez v. United States, 135 S.Ct. 1609 (2015) (citations
omitted).
Defendants appear to argue first that defendant Legan’s warrantless search which took place
as defendant Spivey issued citations to plaintiff was “conducted incidentally to a lawful arrest,”(DE
113 at 6), and second that the search was legal because when defendant Spivey turned to follow
plaintiff, he “suddenly and without warning drove off the right side of the paved road, across a ditch
and into a field,” and “displayed erratic and avoidance-type behavior once Deputy Spivey intended
to stop him,” by “running around the back of the truck, as if hiding something,” (id. at 6-7).22
First, this was not a search incident to arrest. Search incident to lawful arrest require a
custodial arrest. United States v. Robinson, 414 U.S. 218, 235 (1973) (holding that law enforcement
officers are authorized to conduct a full search of every lawful custodial arrestee). It is undisputed
that plaintiff was not arrested during the traffic stop. Following the issuance of citations, defendant
Spivey informed plaintiff that he was “free to go.” (DE 111 ¶ 21). Defendants’ arguments
concerning vehicle searches incident to a lawful arrest are unavailing.
Second, even if the facts as recounted by defendants supported a finding of reasonable
suspicion of a serious crime, such facts are disputed. Plaintiff has put forth evidence including
testimony from Johnson and plaintiff that plaintiff was driving carefully when entering the field and
plaintiff and Johnson did not run around the back of the truck as defendant Spivey was driving
towards them. (DE 115 ¶¶ 114, 116; Morgan dep. (DE 116-20) at 161:2-21; Johnson dep. (DE 116-
22
It is undisputed that at no point did plaintiff or Johnson give consent for the truck to be searched. (See DE
115 ¶ 122).
21
24) at 58:20-23).23 Thus, taking facts in light most favorable to plaintiff, no probable cause existed
for defendant Legan to conduct a warrantless search of plaintiff’s vehicle.
Accordingly, defendants’ motion for summary judgment regarding defendant Legan’s search
is denied.24
c.
Defendant Spivey’s Arrest of Plaintiff
An “arrest is a seizure of the person, and . . . the general rule is that ‘Fourth Amendment
seizures are ‘reasonable’ only if based on probable cause.’” Rogers v. Pendelton, 249 F.3d 279, 290
(4th Cir. 2001) (quoting Dunaway v. New York, 442 U.S. 200, 213 (1979)). Thus, to establish a
Fourth Amendment claim based on unlawful arrest or false imprisonment, plaintiff must show the
arrest was not supported by probable cause. Miller v. Prince George’s Cnty., Md., 475 F.3d 621,
627 (4th Cir. 2007).25 “For probable cause to exist, there need only be enough evidence to warrant
the belief of a reasonable officer that an offense has been or is being committed; evidence sufficient
to convict is not required.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).
Government officials are entitled to qualified immunity from civil damages so long as “their
23
Defendants’ argument that defendant Legan’s search was allowed because defendant Spivey told him to do
it is without merit. Under the “collective knowledge doctrine,” an officer may act on the instruction of another officer
only “if the instructing officer had sufficient information to justify taking such action herself; in this very limited sense,
the instructing officer’s knowledge is imputed to the acting officer.” United States v. Massenburg, 654 F.3d 480, 492
(4th Cir. 2011). As stated above, when viewing the evidence in lights most favorable to plaintiff, defendants had
insufficient information to justify searching plaintiff’s truck; therefore, defendants’ argument on the collective knowledge
doctrine must also fail.
24
The parties do not offer any argument or case law applicable to a qualified immunity defense regarding
defendant Legan’s search of the truck. Thus the court does not address this issue.
25
A “malicious prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for
unreasonable seizure which incorporates certain elements of the common law tort.” Lambert v. Williams, 223 F.3d 257,
261 (4th Cir. 2000). “To state such a claim, a plaintiff must allege that the defendant (1) caused (2) a seizure of the
plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's
favor.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012). Here, plaintiff clarifies he has asserted such a claim
against defendants. (See 114 at 11 n.3).
22
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In other words, a
government official is entitled to qualified immunity when 1) the plaintiff has not demonstrated a
violation of a constitutional right, or 2) the court concludes that the right at issue was not clearly
established at the time of the official’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232
(2009).
“Ordinarily, the question of qualified immunity should be decided at the summary judgment
stage”; however, qualified immunity “does not . . . override the ordinary rule applicable to summary
judgment proceedings.” Willingham v. Crooke, 412 F.3d 553, 558–59 (4th Cir. 2005). “Thus, while
the purely legal question of whether the constitutional right at issue was clearly established ‘is
always capable of decision at the summary judgment stage,’ a genuine question of material fact
regarding ‘[w]hether the conduct allegedly violative of the right actually occurred . . . must be
reserved for trial.’” Id. (citations omitted).
Defendants argue defendant Spivey was entitled to arrest plaintiff without a warrant “because
he witnessed Plaintiff commit a criminal offense when Plaintiff blocked him from leaving the field
– a violation of N.C. Gen. Stat. § 14-223 (regarding obstructing an officer).” (DE 113 at 7).
Defendants further argue the evidence establishes that defendant Spivey was blocked by plaintiff
because there was no room for defendant to Spivey to go around the front or the back of plaintiff’s
truck, as supported by the dash-cam video. (Id. at 7-8).
North Carolina law makes it unlawful to “willfully and unlawfully resist, delay or obstruct
a public officer in discharging or attempting to discharge a duty of his office[.]” N.C. Gen. Stat.
§ 14–223. “The general rule is that merely remonstrating with an officer . . . or criticizing or
23
questioning an officer while he is performing his duty, when done in an orderly manner, does not
amount to obstructing or delaying an officer in the performance of his duties.” State v. Leigh, 278
N.C. 243, 251 (1971). The statute “is concerned with acts threatening a public officer with injury
only insofar as they interfere with the performance of his official duties” and “[v]iolence or direct
force is not necessarily an element of the crime of resisting an officer.” State v. Hardy, 298 N.C.
191, 197 (1979); see also State v. Sinclair, 191 N.C. App. 485, 488-89 (2008) (holding elements of
resisting a public officer are: “1) that the victim was a public officer; 2) that the defendant knew or
had reasonable grounds to believe that the victim was a public officer; 3) that the victim was
discharging or attempting to discharge a duty of his office; 4) that the defendant resisted, delayed,
or obstructed the victim in discharging or attempting to discharge a duty of his office; and 5) that
the defendant acted willfully and unlawfully, that is intentionally and without justification or
excuse.”).
Here, plaintiff has put forth sufficient evidence to create a triable issue of fact as to whether
plaintiff willfully delayed or obstructed defendant Spivey in discharging a duty of his office. See
N.C. Gen. Stat. § 14–223.
Taking facts in light most favorable to plaintiff, plaintiff’s alleged “obstruction”-- preventing
defendant Spivey from exiting the field following defendant Spivey’s issuance of traffic citations
to plaintiff – did not occur. Plaintiff submits numerous pictures, video re-enactments, and expert
reports indicating defendant Spivey could have, and knew he could have, exited the field via the
middle entrance or could have easily avoided plaintiff’s truck by driving around and exiting the field
from the entrance which he previously used to enter the field. As alleged by plaintiff, and further
illustrated in the photo reenactment below, “[t]he south end of the field where Plaintiff stopped his
24
truck is a very large open area, with substantial and obvious room to drive a vehicle around the
location of Plaintiff’s truck.” (DE 115 ¶ 24).
25
(DE 116-4 at attachment 1; Katsaris expert report (DE 116-13) at 11-12 (“While it is Spivey’s
testimony that he could not exit the private property, specifically because Morgan placed his truck
in a manner to block Spivey’s patrol car, photos and the dash cam video refute this testimony . . .
Spivey’s vehicle is obviously not blocked in a manner that he could not drive safely around
Morgan’s truck”); Cloutier expert report (DE 116-14) at 7 (“review of the scene photographs and
videos produced on the date of this current event as well as subsequent photographs and videos
produced by the plaintiff, clearly indicated more than sufficient distance in which Spivey could have
merely driven around Morgan”)).26
Even if plaintiff did obstruct defendant Spivey, defendants have failed to put forth
undisputed evidence that plaintiff did so willfully, with the intention of impeding defendant Spivey
in the course of his duties. (See Morgan dep. (DE 116-20) at 172:22-173:16 (“Once again, didn’t
want to throw dirt, gavel on the patrol car, knew that’d be a charge, give him a reason to mess with
me . . . .”); id. at 177:18-24 (“I wanted him to go on around me and leave my field.”)). “Only those
communications intended to hinder or prevent an officer from carrying out his duty are discouraged
by [N.C. Gen.Stat. § 14-223].” Burton v. City of Durham, 118 N.C.App. 676, 681(1995); Sowers
v. City of Charlotte, 659 F. App’x 738, 740 (4th Cir. 2016) (same).
The situation before the court stands in contrast to the limited number of cases addressing
violation of this statute in applicable context by the North Carolina Supreme Court.27 For example,
26
Defendants’ argue that plaintiff yelling “Go the F around!” contradicts plaintiff’s claim that there was
sufficient room for defendant Spivey to exit the field. (DE 113 at 7). However, taking facts in light most favorable to
plaintiff, plaintiff’s word indicates, as stated above, that defendant Spivey had room to drive around plaintiff.
27
The North Carolina Supreme Court has addressed the statute in other contexts. See, e.g., Fowler v.
Valencourt, 334 N.C. 345 (1993) (addressing the sole issue of applicable statue of limitations); State v. Hardy, 298 N.C.
191 (1979) (holding resisting an officer is not a lesser included offense of assaulting an officer).
26
in Leigh, evidence showed that a defendant’s loud, raucous, and abusive language directly
interfered with an officer’s attempt to continue an investigation for several minutes and where
defendant physically followed the officer which “forced the officer to leave the scene” in order to
continue his investigation. 278 N.C. at 248-49; see also State v. Sparrow, 276 N.C. 499, 514 (1970)
(holding defendant did not resist or obstruct a police officer where she kicked the officer due to her
“resentment” at her husband’s arrest where she did not prevent the officer from completing an arrest
because the arrest had already taken place).
Notwithstanding, defendants argues that “[e]ven if there was room for Deputy Spivey to go
around him, there can be no doubt Plaintiff delayed him in doing so” and that defendant Spivey was
“no doubt . . . hindered.” (DE 118 at 7-8). In support, defendants cite State v. Cornell, 222 N.C.
App. 184, 188 (2012), where the court found that a defendant had delayed or obstructed an officer
under the following circumstances:
The officers, members of the Greensboro Police Department’s Gang Unit, observed
individuals they identified as members of the Latin Kings yelling gang sLegans and
signaling gang signs to a group of rival gang members. In an attempt to prevent any
potential conflict during the festival, the officers approached the Latin Kings.
Defendant came from behind Officer Watkins and stepped between Officer Watkins
and the Latin Kings saying, “[t]hey was (sic) waving at me[,]” and “you wanna arrest
me ‘cuz I’m running for City Council.” Officer Watkins admonished Defendant’s
intervention, saying, “[n]o, don’t get in my face[,]” and “[g]et away. You get away
from me.” Officer Watkins further warned Defendant, “I’m talking to them, not
talking to you” to which Defendant responded, “[y]ou don’t gotta talk to them! They
(sic) fine!” Defendant refused Officer Watkins’ instructions to step away.
Accordingly, we find that there was sufficient evidence for the jury to conclude that
Defendant obstructed and delayed the officers in the performance of their duties.
This case is readily distinguishable because in Cornell, like in Leigh to which the Cornell
court cites, there was an ongoing delay wherein an officer was trying to perform his duty of
investigating and where a defendant refused to heed the officer’s repeated warnings. Here, in
27
contrast, and taking facts in light most favorable to plaintiff, plaintiff was not obstructing the work
of defendant Spivey nor failing to heed repeated warnings. Indeed defendant Spivey has not
identified any official duty he was prevented from taking such as completing an investigation or
arrest. At most, plaintiff momentarily inconvenienced defendant Spivey, and defendants do not cite
to, nor is the court aware of any cases where momentary inconvenience supports a finding of
obstruction or provides probable cause for arrest. Cf. Wilson v. Kittoe, 337 F.3d 392, 401 (4th Cir.
2003) (“While it may be inconvenient to a police officer for a neighbor to stand nearby and watch
from his driveway as the officer works, inconvenience cannot, taken alone, justify an arrest under
the Obstruction Statute,” Va.Code. § 18.2–460(A)).
Therefore, when the facts are viewed in light most favorable to plaintiff, defendant Spivey
lacked probable cause to arrest plaintiff for violating N.C. Gen. Stat. § 14-223 and therefore violated
plaintiff’s Fourth Amendment rights to be free from unreasonable seizure. The court therefore next
addresses whether this rights was clearly established on the date in question, July 5, 2013, and the
court finds that such right was.
Plaintiff alleges the traffic stop had been fully completed, he was free to go, and defendant
Spivey was exiting defendant’s land. According to plaintiff, instead of taking another exit off of
plaintiff’s field, defendant Spivey stopped behind plaintiff’s truck, where plaintiff’s truck was
partially in defendant Spivey’s way in “a very large open area, with substantial and obvious room
to drive a vehicle around the location of Plaintiff’s truck.” (DE 115 ¶ 24). Thereafter, defendant
Spivey immediately tried to arrest plaintiff with no warning. Were a reasonable jury to find
plaintiff’s testimony credible, it could conclude no reasonable officer would have believed that
plaintiff was willfully and unlawfully resisting, delaying or obstructing a public officer in
28
discharging or attempting to discharge a duty of his office in violation of N.C. Gen. Stat. § 14-223.28
It was clearly established on the date in questions that an officer violates the Fourth
Amendment if he effects a warrantless arrest knowing he lacks probable cause. See, e.g., Devenpeck
v. Alford, 543 U.S. 146, 152 (2004) (“a warrantless arrest by a law officer is reasonable under the
Fourth Amendment where there is probable cause to believe that a criminal offense has been or is
being committed”); Rogers, 249 F.3d at 290 (“If a person is arrested when no reasonable officer
could believe, in light of the contours of the offense at issue, that probable cause exists to arrest that
person, a violation of a clearly established Fourth Amendment right to be arrested only upon
probable cause ensues.”).29
Accordingly, the court denies defendants’ motion for summary judgment as to plaintiff’s
claim for Fourth Amendment violation concerning defendant Spivey’s arrest of plaintiff and finds
defendant Spivey is not entitled to qualified immunity on this issue at this time.30
d.
Defendant Spivey’s Use of Force Against Plaintiff
“[A]ll claims that law enforcement officers have used excessive force—deadly or not—in
the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386,
28
Defendants do not allege and the record does not reveal any other support for a finding of probable cause
that plaintiff was engaging in a criminal offense.
29
Additionally, whether or not plaintiff blocked defendant Spivey is a disputed material fact. “If a plaintiff
has alleged a clearly established right, summary judgment on qualified immunity grounds is improper as long as there
remains any material factual dispute regarding the actual conduct of the defendants.” Buonocore v. Harris, 65 F.3d 347,
359–60 (4th Cir. 1995); see also Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006) (genuine issue of material fact as to
whether passenger was making a dangerous, noncompliant movement just before agent shot him precluded summary
judgment on agent’s claim of qualified immunity); Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002) (officer not entitled
to qualified immunity at the summary judgment stage where trial was necessary to resolve disputed facts as to whether
Clem posed an immediate threat of serious bodily harm).
30
For the same reasons, plaintiff’s “malicious prosecution” claim under § 1983 survives. See Lambert, 223
F.3d at 261; Evans, 703 F.3d at 647.
29
395 (1989). In determining whether the use of force was unreasonable and, therefore, whether it
constitutes a constitutional violation, the court must carefully balance the “the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Id. at 396 (citation omitted). In doing so, the court must apply a
test of reasonableness, and “[p]roper application [of this test] requires careful attention to the facts
and circumstances of each particular case, including 1) the severity of the crime at issue, 2) whether
the suspect poses an immediate threat to the safety of the officers or others, and 3) whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. (numbers added). These factors
are referred to as the Graham factors. Jones v. Buchanan, 325 F.3d 520, 528 (4th Cir. 2003).
Additionally, the court may also consider the extent of the injuries suffered by the plaintiff in
determining whether the force used was excessive. Id. at 530.
The intentions of the police officer have no bearing on the reasonableness inquiry, as the
reasonableness inquiry is an objective one. Graham, 490 U.S. at 397. Furthermore, the objective
reasonableness of a particular incident “must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight[,]” keeping in mind that “police officers
are often forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving.” Id. at 396–97. “The court’s focus should be on the circumstances at the moment
force was used and on the fact that officers on the beat are not often afforded the luxury of armchair
reflection.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996); see Greenidge v. Ruffin, 927 F.2d
789, 792 (4th Cir. 1991) (citation and emphasis omitted) (stating that an officer’s liability must “be
determined exclusively upon an examination and weighing of the information the officers possessed
immediately prior to and at the very moment they fired the fatal shots”).
30
Plaintiff alleges that defendant Spivey, without issuing any orders and “within seconds of
stopping his [] car instantly exited his vehicle in an aggressive manner, extended his ASP baton,”
and began approaching the driver side of plaintiff’s truck “in an obviously hostile manner.” (DE
115 ¶ 129; Morgan dep. (DE 116-20) at 294:10-11 (“It all happed so fast and I – I weren’t given no
commands”); dash cam footage (DE 116-6) at 7:42:46-43:02; Johnson dep. (DE 116-37) at 378:1014 (“He jumped out of his vehicle, slung that baton . . run around . . . to the driver’s side); Legan
dep. (DE 116-23) at 47:13-17 (“Q. You testified in this case that you saw that Deputy Spivey had
an ASP baton on July 5th, 2013? A. Yes, sir. Q. You saw him actually extend it? A. I believe so,
yes, sir”)).
Plaintiff alleges first that defendant Spivey “forcefully struck Plaintiff in the head with the
baton.” (DE 115 ¶ 131; see also Johnson dep. (DE 116-37) at 379:18-20 (“it looked to me like he
slung that baton and actually hit [plaintiff] upside the head two times with it”); Morgan dep. (DE
116-20) at 188:13-16, 300:7-13). Plaintiff additionally alleges that defendant Spivey, “who was
6’2” and 270 pounds at the time . . . grabbed onto the chest and t-shirt of Plaintiff, who in contrast
was only 5’6” and 145 pounds at the time . . . and Spivey began forcefully pulling him literally out
of the window of Plaintiff’s truck.” (DE 115 ¶ 131).
The court considers the Graham factors in turn regarding plaintiff’s claim of excessive force
against defendant Spivey. First, regarding the severity of the crime at issue, viewing facts in light
most favorable to plaintiff, plaintiff committed no crime. As discussed above, plaintiff momentarily
inconvenienced defendant Spivey. Additionally, plaintiff’s alleged traffic violations had concluded
with the issuance of traffic citations and defendant Spivey informing plaintiff he was free to go. See
Bailey v. Kennedy, 349 F.3d 731, 743 (4th Cir. 2003) (citing Jones v. Buchanan, 325 F.3d 520, 528
31
(4th Cir.2003) (“Starting with the first factor, the severity of the crime at issue, Michael committed
no crime. In fact, as discussed above, the police officers did not even have probable cause to seize
Michael. When we considered this factor in Jones, we noted that ‘[i]n recent years, we have twice
confronted situations in which a plaintiff, subjected to police force, had committed no crime; in
each, we held that the plaintiff had stated a claim for violation of his constitutional right to be free
from excessive police force.’”). Accordingly, the first factor “weighs heavily” in plaintiff’s favor.
See id.31
Turning to the second factor, whether a reasonable officer could have perceived plaintiff to
be an immediate threat to the safety of the officers or others, this factor also weighs in favor of
plaintiff. At the time defendant Spivey approached plaintiff to allegedly arrest him, it is undisputed
that plaintiff was not armed and was sitting in his truck at a full stop.
Defendants argue, however, that plaintiff posed a threat to deputies in that plaintiff “had a
recorded history of violence and obstruction of law enforcement activities and the deputies knew
of his history.” (DE 113 at 12). Additionally, “Deputy Spivey reasonably believed Plaintiff would
use physical means to resist arrest” in that “Plaintiff was irritated he had been stopped, and Deputy
Spivey reasonably believed Plaintiff blocked his exit from the field by his truck,” and “Verbal
exchanges between Plaintiff and Deputy Spivey only increased the exigency of the situation.” (Id.
at 15).
Here, the circumstances did not justify the level of force applied by defendant Spivey, hitting
31
Even assuming plaintiff committed the crime alleged, violation of N.C. Gen. Stat. § 14-223, this factor would
weigh in plaintiff’s favor in that this alleged violation and the way in which plaintiff allegedly violated it is “a minor
one.” See Jones, 325 F.3d at 528 (“Even in a case in which the plaintiff had committed a crime, when the ‘offense was
a minor one,’ we have found that the first Graham factor weighed in plaintiff’s favor and upheld the denial of summary
judgment to the defendant police officer.”).
32
plaintiff twice with a baton and attempting to pull him out of the window of the vehicle. Although
“[i]f an officer reasonably, but mistakenly believed, that a suspect was likely to fight back, for
instance, the officer would be justified in using more force than in fact was needed,” Brown, 278
F.3d at 369 (citation omitted), such a belief is not reasonable where facts in light most favorable to
plaintiff only support a conclusion that plaintiff was “irritated,” that he was not actually blocking
defendant Spivey, and that defendant Spivey yelled at plaintiff to which plaintiff yelled back, both
from their respective vehicles. Sheriff Defendants alleged knowledge of plaintiff’s history does not
translate into an immediate threat, particularly where under plaintiff’s version of events he did not
make any sudden movements or otherwise suggest that he would resist defendant Spivey’s efforts
to arrest him as defendant Spivey approached the truck. A reasonable jury could conclude that
plaintiff did not pose an immediate threat to defendant Spivey or anyone else.
Turning to the third factor, whether plaintiff was actively resisting arrest, this factor also
favors plaintiff. When viewing facts in light most favorable to plaintiff, plaintiff did not know
defendant Spivey sought to arrest him and had no time in which to resist. (See DE 115 ¶ 131
(Plaintiff “testified that he never resisted, and he never even had a chance to do anything or become
verbal with Deputy Spivey because of how quickly Deputy Spivey engaged him . . . . [If] Defendant
Spivey instructed Morgan to get out of the vehicle or told him that he was under arrest . . . Morgan
would have complied.”); see also Morgan dep. (DE 116-20) at 179:6-25; 188:2-16; 193:1-23;
Johnson dep. (DE 116-24) at 136:9-19 (“Q: Did you ever hear him say, stop, you’re under arrest?
A: No, sir. Q: Did you . . . ever see or hear him – tell Mr. Morgan to get out of the . . . truck? A:
33
No, sir.”)).32
Defendants argue that plaintiff’s “own testimony and the undisputed record evidence suggest
he resisted arrest.” (DE 113 at 21). However, when turning to defendants’ citations, plaintiff
testified that when “Deputy Spivey attempted to pull him out of the truck, Plaintiff never said ‘I give
or anything like that’” because, as further testified by plaintiff as follows:
Like I said, I was shocked. When he jerked me and I ripped loose and fell down, we
both looked at each other with a pause look like – I guess he didn’t expect my shirt
to tear and I didn’t expect him to grab ahold of me. I didn’t know what was going
on, didn’t think I was doing nothing wrong, and then, like I said, I hear pow and I
heard pow again and watched my hand explode.
(DE 111 ¶ 30; DE 115 ¶ 30)
Defendants argue it is undisputed that “Plaintiff never complied as Deputy Spivey tried to
arrest him,” and that defendant Spivey “grabbed the truck’s door, but it was locked” and therefore
“reached in and grabbed hold of Plaintiff’s shirt to extract him from the vehicle and place him under
arrest.” (DE 111 ¶ 52). However, even if true, these are not facts that support a conclusion that
plaintiff was attempting to flee or resist defendant Spivey in any way where plaintiff had no
opportunity to comply with defendant Spivey’s efforts to arrest him. See Yates v. Terry, 817 F.3d
877, 886 (4th Cir. 2016) (holding third Graham factor favors plaintiff where“Terry [did not] warn
Yates that he would be tased or that he could not move any part of his body. Indeed, Yates asserts
that Terry never gave ‘any commands.’”).
Although plaintiff alleges limited injuries as a result of defendant’s Spivey’s use of force,
32
Plaintiff additionally testified in response to the question, “[d]id you resist [defendant Spivey’s] efforts to
be pulled out of the truck,” as follows: “By choice, no, sir. I mean -- no. I mean, the answer’s no. I mean, there was
nothing I could do about it. It -- it was quick. He come around and said, come here and grabbed me. I didn’t have a
choice one way or the other. I was snatched out of my seat and that was that. I didn’t have a choice.” (Morgan dep. (DE
116-20) at 192:17-25).
34
that fact alone is not dispositive. The above analysis of the Graham factors when measured against
the level of force alleged to have been employed by defendant Spivey, where defendant Spivey
struck plaintiff in the head with his baton and tried to remove plaintiff from his truck, leads to the
conclusion “that such force was not objectively reasonable in light of the totality of the
circumstances of this case.” See id. at 886; see also Wilkins v. Gaddy, 559 U.S. 34, 38 (2010)
(holding one “does not lose his ability to pursue an excessive force claim merely because he had the
good fortunate to escape without injury”).33
As stated above, defendants’ assert the defense of qualified immunity regarding plaintiff’s
excessive force claims. Thus the court having concluded that plaintiff’s constitutional rights were
violated must now determine whether those rights were clearly established at the time of defendant
Spivey’s conduct. Defendants argue that “The Wake Sheriff Defendants have not located any
binding case putting Deputy Spivey on notice that he could not use physical force with a baton
against a subject resisting arrest.” (DE 113 at 21).
Defendants’ characterization of the appropriate inquiry is incorrect in that, as stated above,
there is no undisputed evidence that plaintiff was resisting arrest. Since at least 2003, it has been
clearly established in the Fourth Circuit that an officer is not entitled to use “unnecessary, gratuitous,
or disproportionate force” against a nonviolent misdemeanant who poses no threat to safety. See
Meyers v. Baltimore Cty., Md., 713 F.3d 723, 734–35 (4th Cir. 2013). As further clarified by the
33
Regarding injuries, plaintiff testified that he received “two knots on my head” and while in the hospital “the
doctors looked at them, but it didn’t like break nothing.” (Morgan dep. (DE 116-20) at 188:13-24). Plaintiff additionally
argues that further damages may be due plaintiff as a result of defendant Spivey’s alleged use of excessive force in that
“Spivey’s totally improper conduct placed Plaintiff in a forseeable and dangerous position of peril,” which lead to
plaintiff’s shooting injuries. (DE 114 at 18 (citing Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1549 (2017)
(“On remand, the court should revisit the question whether proximate cause permits respondents to recover damages for
their shooting injuries based on the deputies’ failure to secure a warrant at the outset.”)).
35
Fourth Circuit:
The fact that the force used in the present case emanated from a taser, rather than
from a more traditional device, is not dispositive. The use of any “unnecessary,
gratuitous, and disproportionate force,” whether arising from a gun, a baton, a taser,
or other weapon, precludes an officer from receiving qualified immunity if the
subject is unarmed and secured.
Id. (emphasis added). As the Fourth Circuit has further stated:
In this case, it was clearly established in 2008 that a police officer was not entitled
to use unnecessary, gratuitous, or disproportionate force by repeatedly tasing a
nonviolent misdemeanant who presented no threat to the safety of the officer or the
public and who was compliant and not actively resisting arrest or fleeing . . . .
Although our decisions in Meyers, Bailey, and Jones dealt with individuals who were
secured when they were subjected to excessive force, our precedent nonetheless
provided Terry with fair notice that the force he used against Yates under the facts
of this case was unconstitutionally excessive . . . . Even though Yates was not
handcuffed, our precedent makes clear that a nonviolent misdemeanant who is
compliant, is not actively resisting arrest, and poses no threat to the safety of the
officer or others should not be subjected to “unnecessary, gratuitous, and
disproportionate force.”
Yates, 817 F.3d at 887-88.
Accordingly, the court denies defendants’ motion regarding claims of excessive force used
against plaintiff by defendant Spivey and finds defendant Spivey not entitled to qualified immunity
at this time.34
e.
Defendant Miller’s Use of Deadly Force Against Plaintiff
“A police officer may use deadly force when the officer has sound reason to believe that a
suspect poses a threat of serious physical harm to the officer or others.” Elliott, 99 F.3d at 642.
“Officers need not be absolutely sure . . . of the nature of the threat or the suspect’s intent to cause
34
Given the court’s holding above, it is unnecessary to address plaintiff’s argument that any amount of force
used during an unlawful arrest is unreasonable. (See DE 114 at 11, 16 (citing Bailey, 349 F.3d at 742 (“Because, given
the facts as the district court viewed them, there was no probable cause to seize Michael for an emergency mental
evaluation, the police officers also committed both false arrest and false imprisonment under state law.”)).
36
them harm—the Constitution does not require that certitude precede the act of self protection.” Id.
at 644. “We assess the reasonableness of their conduct based on the totality of the circumstances,
and based on the information available to the Deputies immediately prior to and at the very moment
they fired the fatal shots.” Hensley on behalf of N. Carolina v. Price, 876 F.3d 573, 582 (4th Cir.
2017) (citations omitted).
Plaintiff alleges that as defendant Spivey pulled plaintiff from the driver’s seat, plaintiff’s
foot came off the brake of the truck, and it began idling forward. (DE 115 ¶ 134; see also DE 111
¶ 28; Johnson dep. (DE 116-24) at 142:17-143:-22 (Johnson testifying he never heard the engine rev,
that the truck was “sitting there idle,” and the rear tires did not spin); Morgan dep. (DE 116-20) at
289:15-290:3 (“That truck rolled forward. Spivey – Spivey knows as well as I do, I mean, he
grabbed ahold of me, pulled me up, truck rolled forward.”). Defendant Legan testified plaintiff “was
maybe 1/3 through the window and the truck started moving . . . .” (DE 116-8 at 2; criminal trial
tr. (DE 116-39) at 167:14-24). Plaintiff alleges at no time did he receive any commands from any
of the Sheriff Defendants. (Morgan dep. (DE 116-20) 294:20-25; Johnson dep. (DE 116-24) at
137:17-138:1-9 (testifying he never heard or saw Sheriff Defendants give instructions stating he did
not “ever see or hear these deputies, any three of them, ever give Mr. Morgan a chance to get out
of the truck in any way before Deputy Spivey reached in.”)).
When the truck started moving, defendant Spivey dropped plaintiff back into the driver’s seat
where he landed with his right hand back on the steering wheel; plaintiff pushed his foot back on
the brake to stop the truck. (DE 115 ¶ 135; Morgan dep. (DE 116-20) at 179:15-16 (“I noticed the
truck was rolling, so obviously I started to get on the brake”); id. at 192:6-13).
Defendant Miller was standing right next to the passenger window of plaintiff’s truck and,
37
when he saw the truck moving forward, he took aim and fired his revolver twice at close range,
hitting plaintiff both times, first in plaintiff’s left leg and second through plaintiff’s right hand that
was holding on to the steering wheel. (DE 115 ¶ 139). Defendant Miller moved alongside the
vehicle the seven to eight feet it rolled while taking the two shots in immediate succession; after the
shots, the vehicle stopped within a foot. (DE 115 ¶ 140; criminal trial tr. (DE 116-38) at 193:12-16,
22-25 (defendant Miller testifying truck rolled seven to eight feet and stopped within a foot
thereafter); criminal trial tr. (DE 116-40) at 106:15 (defendant Spivey testifying truck rolled seven
to eight feet); see also criminal trial tr. (DE 116-37) at 410:4-8 (witness Johnson testifying “[a]nd
then the truck started rolling forward, and so the truck was on past me when it started rolling
forward. The truck had rolled forward, it looked to me like five or six feet when the shots were fired,
but they are saying seven or eight, but it looked to me like five or six.”)).
As in the case of defendant Spivey, the first Graham factor weighs in favor of plaintiff. As
stated, no undisputed evidence is presented that defendant Spivey had probable cause to arrest for
obstruction of an officer in the course of his duties. Additionally, even if defendant Spivey had
reasonable cause to arrest plaintiff for obstruction, as stated above, no undisputed evidence is
presented that plaintiff resisted defendant Spivey’s efforts to arrest him. Accordingly, the first
Graham factor, the severity of the crime at issue, and the third Graham factor, whether a plaintiff
is actively resisting arrest or attempting to evade arrest by flight, weighs in favor of plaintiff.
Turning to the second Graham factor, whether plaintiff posed an immediate threat to the
safety of the officers on the scene or others, defendants argue that plaintiff posed a threat to
defendants because when the truck started moving, and plaintiff and defendant Spivey were
“physically ‘locked up’ with each other,” defendant Spivey “faced serious bodily injury or death by
38
being run over by the truck.” (DE 113 at 12). More specifically, defendants argue again defendant
Miller was aware of plaintiff’s prior history of violence and resistence to law enforcement and
plaintiff’s response to receiving the traffic citations, such as by performing “donuts,” coupled with
defendant Miller’s knowledge that “Deputy Spivey was in contact with Plaintiff and the truck started
moving,” support defendant Miller’s reasonable belief that plaintiff posed a threat of serious
physical harm to defendant Spivey. (Id. at 13).
Plaintiff does not dispute that defendant Spivey and plaintiff were somehow physically
engaged and that the truck began to move, stating the “truck simply began to idle forward slowly
when Spivey pulled Plaintiff off the brake pedal, and that it never moved in any way or with any
speed to drag anyone.” (DE 114 at 21; see also Katsaris expert report (DE 116-13) at 14 (“any
suggestion that the vehicle could have ‘dragged’ Spivey is not supported by the evidence.”)).
Taking facts in light most favorable to plaintiff, that plaintiff’s truck was idling forward
because his foot had been pulled off the brake as plaintiff was a third of the way outside of the truck
window while defendant Spivey continued to in some way make physical contact with plaintiff,
without more, is insufficient for the court to find that plaintiff posed an immediate threat to the
safety of defendant Spivey. Defendant Legan testified that one third of plaintiff’s body was outside
of the truck window. See Legan dep. (DE 116-39) at 158:19-21 (“And at that point Deputy Spivey
had already engaged the defendant and grabbed ahold of him and was attempting to extract him from
the vehicle.”); id. at 167:14-22 (“Q: And do you recall letting the State Bureau of Investigation know
that when you were approaching the truck Deputy Spivey had Michael Morgan maybe a third of the
way through the window? A. If that is coming from the report, I would say that is fair to say. Like
I said, he had his hands on him and he was attempting to extract him from the vehicle and I believe
39
as Deputy Spivey testified earlier, at some point he may have had him out of the seat and partially
through the window . . . .”); DE 116-8 at 2 (“Spivey started to attempt to pull Morgan out of the
truck . . . .”)). Additionally Johnson, who testified he was approximately the same physical size and
stature as plaintiff, testified that if he were pulled through the window of plaintiff’s truck, he would
not be able to reach the pedals with his foot.
(Criminal trial tr. (DE 116-37) 387:11-13;
399:24-400:2). Here, with regard to the facts specific to this case, plaintiff was not a danger to
anyone else and was instead only in danger himself, danger created by defendant Spivey’s alleged
actions, as allegedly witnessed by defendant Miller.
This set of facts stands in contrast to those where courts have found immediate threat of harm
where a plaintiff was intentionally using his or her vehicle as a potential weapon. See Waterman
v. Batton, 393 F.3d 471, 477 (4th Cir. 2005) (“When Waterman’s vehicle lurched forward, the
officers were forced to immediately decide whether Waterman was attempting to assault the officers
ahead of him or whether he intended only to drive by them, leaving them unharmed.”) (emphasis
added). Here, as testified by defendant Legan, defendant Spivey was pulling plaintiff out of his car
window, and as testified by Johnson, plaintiff could not reach the pedals. Although defendant
Miller testified otherwise, taking facts in light most favorable to plaintiff, defendant Miller was not
confronted with a situation where he had to decide whether plaintiff was attempting to assault
defendant Spivey.
Finally, with regard to plaintiff’s injuries, it is undisputed they are significant. (See DE 115
¶¶ 139, 142 (“The first bullet pierced Morgan’s flesh and became lodged in the bones of his left leg.
The second shot ripped through Morgan’s right hand that was holding onto the steering wheel . . . .
Morgan watched as three fingers on his right hand exploded in front of him.”)).
40
Taking the facts in light most favorable to plaintiff and taking into account all factors, a
reasonable jury could conclude that defendant Miller violated plaintiff’s Fourth Amendment right
to be free from excessive force. Having determined a constitutional violation, the court considers
whether defendant Miller’s conduct violated a constitutional right that was clearly established at the
time the conduct occurred. In other words, the court must determine whether on July 5, 2013, a
reasonable officer would have known that shooting a suspect as he was being pulled out of the
window of a vehicle by another officer, thus setting that vehicle in motion, would violate clearly
established statutory or constitutional rights.
Defendants cite the Fourth Circuit decision Brown v. Elliott, 876 F.3d 637 (4th Cir. 2017),
as definitively answering this issue. In that case, the Fourth Circuit confronted the following:
The traffic stop at the center of this case occurred on February 28, 2012, around 8:23
p.m. That evening, officers with the Kershaw County Sheriff’s Office, including
Deputy Elliott, received a tip from a confidential informant that Melvin Lawhorn
would be purchasing and transporting a large quantity of cocaine in a truck along a
given rural road and that Lawhorn “usually carr[ies] a gun . . . when he goes and
picks up dope.” The detectives set up a perimeter along the route. When the truck
passed Deputy Elliott, it was speeding and crossed the center line, so he initiated a
traffic stop by activating his blue lights. The truck pulled over. Deputy Elliott
approached the truck from the passenger side, where Lawhorn, the suspect, was
sitting with his window halfway down. Deputy Mickey Sellers approached the truck
from the driver’s side. The driver, Darryl Herbert, kept his foot on top of the
accelerator with the truck’s engine still running.
As Deputy Elliott arrived at the passenger door, Lawhorn jumped toward the driver’s
seat, put his left foot on top of the driver’s foot on the gas pedal, and attempted to
shift the truck into drive. The deputies shouted “freeze” and “don’t move.” Deputy
Elliott leaned inside the passenger-side window to grab Lawhorn. However,
Lawhorn successfully shifted the truck into drive, and the truck began moving
forward. Moments later, Deputy Elliott, who stated that he feared for his life and that
of the other officers, reached for his gun and fired one shot into the truck, striking
Lawhorn in the back and killing him.
Id. at 640.
41
In addressing the arguments made by the parties, the Fourth Circuit determined in relevant
part that “viewing the evidence in the best light for Ms. Brown, for purposes of summary judgment
Deputy Elliott was neither ‘stuck’ in the truck nor ‘dragged’ by it, but the evidence was undisputed
that Deputy Elliott’s torso was inside the truck when he fired the fatal shot,” and “With these
‘circumstances of the case’ in mind, we turn to the question of whether any controlling authority
clearly established that an officer must abstain from employing deadly force when a suspect puts a
vehicle in motion while the officer is leaning into it,” holding “Ms. Brown does not cite, nor have
we found, a single case that so holds.” Id. at 643 (emphasis added). The court held that as of the
date of the incident in question on February 28, 2012, “[n]o existing precedent placed the conclusion
that [Deputy Elliott] acted unreasonably in these circumstances beyond debate” and “[n]or has Ms.
Brown suggested that Deputy Elliott’s actions were so extreme to place him on notice that [his]
conduct violated established law even in novel factual circumstances,” thus defendants were entitled
to qualified immunity. Id. at 644.
The facts here, taken in light most favorable to plaintiff, are different than those confronting
the Fourth Circuit in Brown, where in Brown 1) the officer received a tip that plaintiff was moving
large amounts of cocaine and may be armed, 2) plaintiff put the vehicle in motion, not the officer,
by jumping towards the driver’s seat and eventually shifting the truck into drive, 3) plaintiff ignored
commands by officers to not move, 4) the officer, not plaintiff, was in the window of the moving
vehicle, and 5) the officer who employed deadly force was the officer in danger. Here, defendant
Spivey allegedly put the vehicle in motion by pulling plaintiff a third of the way out of the truck
window causing plaintiff’ foot to be removed from the brake, defendant Spivey never issued any
commands, and defendant Miller, not defendant Spivey, shot plaintiff twice as the truck “idled
42
forward.” Based on these factual differences, Brown does not hold that the right at issue in this case
was not clearly established at the time of the events in question. See id. at 643 (defining the right
at issue in Brown as whether “an officer must abstain from employing deadly force when a suspect
puts a vehicle in motion while the officer is leaning into it”)).
Here, defendant Miller is not entitled to qualified immunity against plaintiff’s excessive force
claim for the same reason the court denied defendant Spivey’s assertion of qualified immunity. As
stated by the Fourth Circuit, “our precedent makes clear that a nonviolent misdemeanant who is
compliant, is not actively resisting arrest, and poses no threat to the safety of the officer or others
should not be subjected to ‘unnecessary, gratuitous, and disproportionate force.’” Yates, 817 F.3d
at 887-88. Before defendant Spivey allegedly hit plaintiff with his baton, plaintiff was sitting in his
vehicle giving no indication of resisting arrest. Before defendant Miller allegedly shot plaintiff, he
was a third outside of his truck window, pulled by defendant Spivey, could not reach the pedals to
his vehicle, as the truck idled forward. In neither situation as alleged by plaintiff was anyone
threatened except plaintiff. In the latter situation, as in Yates, it was defendant Spivey who created
“a commotion attributable to [defendant’s] excessive and unjustifiable use of force, which
unnecessarily escalated tension during what can at best be described as a routine traffic stop.” Id.
at 889.
Defendants argue that “[n]o one disputes . . . that Deputy Spivey was in danger when the
truck started to move,” (DE 118 at 2) and that “[a]ll Deputy Miller knew – and all any reasonable
officer in his shoes would know – is that the vehicle was moving while Deputy Spivey was
entangled with Plaintiff,” (DE 113 at 20), arguing also who set the vehicle in motion is irrelevant,
(see id. at 20-21 (“The danger to the officer is the fact of the vehicle moving, not the reason why the
43
vehicle was moving)).35
These material facts, however, are in dispute. First, whether defendant Spivey was in danger
is a fact in stark dispute.36 (Compare Johnson dep. (DE 116-24) at 142:17-143:22 (Johnson
testifying he never heard the engine rev, that the truck was “sitting there idle,” and the rear tires did
not spin); Morgan dep. (DE 116-20) at 289:15-290:3 (“That truck rolled forward. Spivey – Spivey
knows as well as I do, I mean, he grabbed ahold of me, pulled me up, truck rolled forward.”);
(criminal trial tr. (DE 116-37) 387:11-13; 399:24-400:2 (Johnson testifying he was approximately
the same physical size and stature as plaintiff and that if he were pulled through the window of
plaintiff’s truck, he would not be able to reach the pedals with his foot) with criminal trial tr. (DE
116-38) at 191:5-17) (Miller testifying that “Deputy Spivey was able to pull him up a little bit off
the seat, and every time he pulled, Mr. Morgan would obviously resist down and try to put his foot
down towards the gas pedal . . . . I actually gave a command to Mr. Morgan to put the vehicle in
park and about the time I got done with the word park, his foot made contact with the gas pedal. He
pushed it all the way to the floor. Pushed it all the way to the floor. At that point, the wheels on the
truck started to spin.”)).
Second, defendant Miller testified not that the parties were “entangled” but that he “could
see that Deputy Spivey’s hands were around Mr. Morgan’s chest” and that “I know I saw both hands
about Mr. Morgan’s person,” (criminal trial tr. (DE 116-38) at 190:11-15), meaning a reasonable
35
The parties dispute what verb should be employed to describe the physical interaction of plaintiff and
defendant Spivey at this instance, with plaintiff objecting to defendants use of the word “entangle,” stating “[e]ntangled
implies that Plaintiff was actively fighting with or resisting Spivey,” but that “this was not the case” and “instead he was
pulled at least one-third of the way out of the window under the total control of Spivey’s force.” (DE 114 at 21).
36
Here, similar with regard to whether plaintiff blocked defendant Spivey’s patrol car with his truck, material
facts are in dispute precluding grant of qualified immunity. See Buonocore, 65 F.3d at 359-60; Schultz, 455 F.3d 470;
Clem, 284 F.3d 543.
44
officer in defendant Miller’s shoes would know defendant Spivey was holding onto plaintiff and,
more importantly, could let go.37
In order to grant qualified immunity to defendant Miller at this time, defendants seek the
court to hold there is a threat of serious physical harm to an officer who is pulling a compliant driver
out of the window of a vehicle, causing that vehicle to idle forward, who could not reach the pedals,
such that deadly force could be employed against the driver by another officer. See Elliott, 99 F.3d
at 642 (“the question is whether a reasonable officer in the same circumstances would have
concluded that a threat existed justifying the particular use of force”). At this juncture, given the
disputed nature of the relevant facts, the court cannot so hold.
Given the facts viewed in light most favorable to plaintiff, it is difficult to see how the
plaintiff in this situation was a threat to anyone, as he was being pulled out of his truck window,
much less such a threat as to justify employing deadly force. Cases cited by defendants do not hold
otherwise and instead highlight the disputed nature of this encounter. See Pittman v. Nelms, 87 F.3d
116, 118 (4th Cir. 1996) (upholding grant of qualified immunity where “Banks leaned into the open
window to speak to Hudson, but Hudson started to drive away. Banks’s arm became caught inside
the window of the car, which carried him for twenty-five to thirty feet before it swerved to the right
and released his arm. Nelms then fired at the car and the bullet struck Pittman, who was seated in
the back seat.”); White v. Leonhardt, 1995 WL 26696 (4th. Cir. Jan. 25, 1995) (finding “lurching
vehicle” controlled by suspect to pose “an immediate, direct threat of serious harm” to the officer).
Under plaintiff’s version of events, defendants violated his clearly established right to be free
37
Although defendants allege that as the vehicle moved forward “Deputy Spivey felt he had two choices: pull
and hang on or if he let go, he would go under the wheels of the truck,” (DE 111¶ 54), this fact is disputed like all other
facts alleging defendant Spivey was in danger, for the same reasons already discussed in that it is alleged that the truck
only “rolled forward,” (Morgan dep. (DE 116-20) at 289:15).
45
from the use of deadly force during an arrest. Accordingly, the court denies defendants’ motion
regarding claims of excessive force used against plaintiff by defendant Miller and finds defendant
Miller not entitled to qualified immunity at this time.
f.
Defendant Legan’s Bystander Liability
The Fourth Circuit has held that “an officer may be liable under § 1983, on a theory of
bystander liability, if he: (1) knows that a fellow officer is violating an individual’s constitutional
rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Randall
v. Prince George’s Cty., Md., 302 F.3d 188, 204 (4th Cir. 2002). Bystander liability in this context
“recognizes that, in certain limited situations, bystanding officers are obliged to act.” Id.38
Plaintiff argues that defendant “Legan testified that he had his taser drawn and was standing
directly behind Spivey the entire time that Spivey allegedly ordered Plaintiff out of the truck and he
refused; at the time Spivey allegedly told Plaintiff he was under arrest; and during the time that
Spivey physically grabbled Plaintiff and literally pulled his entire body a third of the way out of the
driver’s window,” and therefore “a reasonable jury could conclude that Legan has bystander liability
to intervene and prevent harm, and despite this he chose [to] not . . . stop Spivey in any way.” (DE
114 at 26 (emphasis in original)).
Defendants argue only that the “undisputed facts and video evidence show this is not a case
involving clearly egregious behavior or police misconduct.” (DE 118 at 6). Defendants have failed
to carry their burden on this claim necessary for a grant of summary judgment. As stated above,
38
Defendants incorrectly assert that “[t]o the extent Plaintiff alleges Deputy Legan should have intervened,
the failure to act is not cognizable under § 1983.” (DE 113 at 10 n.3). In support, defendants cite Safar v. Tingle, 859
F.3d 241, 246 (4th Cir. 2017), wherein the Fourth Circuit held that it was not clearly established at the time in question
that an officer had an affirmative duty “after a magistrate issued the arrest warrants based on probable cause,” to “take
steps to withdraw the warrants upon learning that the charges were meritless.” Safar is inapposite to the present case.
46
taking facts in light most favorable to plaintiff, a reasonable juror could find that defendant Spivey
used excessive force in attempting to arrest plaintiff. Additionally, taking facts in light most
favorable to plaintiff, a reasonable juror, for example, could find that defendant Legan was in a
position to evaluate the correctness of defendant Spivey’s conduct because defendant Legan was
present, had specific knowledge of defendant Spivey’s allegedly unconstitutional conduct, and could
have had a reasonable opportunity to prevent the harm.39
Accordingly, the court denies defendants’ motion for summary judgment as to plaintiff’s
claim against defendant Legan under the theory of bystander liability.40
2.
Plaintiff’s State-Law Claims
Defendants argue that where applicable, Sheriff Defendants are entitled to public officer’s
immunity and on plaintiff’s state law claims of assault and battery, false imprisonment, malicious
prosecution, claim on sheriff’s bond, and civil conspiracy. The court will address each in turn
below.
1.
Assault, Battery, and False Imprisonment
Because the court has held above that plaintiff’s claims against defendants Spivey and Miller
for excessive force and against defendant Spivey for unlawful arrest under the Fourth Amendment
survive summary judgement and these defendants are not entitled to qualified immunity, the court
finds plaintiff’s state-law assault and battery claims against defendants Spivey and Miller in their
individual capacities as well as false imprisonment claim against defendants Spivey, Miller, and
39
As stated previously, the parties offer no argument nor case law applicable to a qualified immunity defense
regarding defendant Legan’s bystander liability. Thus the court does not address this issue.
40
Because some of plaintiff’s § 1983 claims against defendants Spivey, Miller, and Legan in their individual
capacities survive summary judgment, plaintiff entitlement to punitive damages based on those claims survive as well.
47
Legan in their individual and official capacities also survive summary judgment and that these
defendants are not entitled to public officer’s immunity.41 See Rowland v. Perry, 41 F.3d 167, 174
(4th Cir. 1994) (holding no qualified immunity for excessive force claim and “[t]he parallel [North
Carolina] state law claim of assault and battery is subsumed within the federal excessive force claim
and so goes forward as well.”); Bailey, 349 F.3d at 742 (“The police officers concede, and we agree,
that public officers’ immunity, at the least, is unavailable to officers who violate clearly established
rights because an officer acts with malice when he does that which a man of reasonable intelligence
would know to be contrary to his duty.”); id. (holding that the facts, viewed in favor of plaintiff as
the district court viewed them, were insufficient to establish probable cause to detain plaintiff for
an emergency mental evaluation, thus plaintiff’s Fourth Amendment rights to be free from
unreasonable seizure were violated because “[s]everal of the Baileys’ other claims are intertwined
with Michael’s Fourth Amendment unlawful seizure claim [and because] . . . there was no probable
cause to seize Michael for an emergency mental evaluation, the police officers also committed both
false arrest and false imprisonment under [North Carolina] state law.”).
2.
Malicious Prosecution
Turning to plaintiff’s state-law claim of malicious prosecution against defendants Spivey,
Miller, and Legan in their individual and official capacities, the court holds this claims survives
summary judgment as well. To establish malicious prosecution, a plaintiff must show that the
defendant 1) initiated or participated in the earlier proceeding, 2) did so maliciously, 3) without
41
The Fourth Circuit has noted that “the issue of whether public official immunity can apply to intentional tort
claims, like the plaintiffs’ assault claim, splits courts in North Carolina. Hensley, 876 F.3d at 587 (citing Hawkins v.
State, 117 N.C.App. 615, 453 S.E.2d 233, 242 (1995) (holding that public official immunity does not apply to intentional
tort claims); Campbell v. Anderson, 156 N.C.App. 371, 576 S.E.2d 726, 730 (2003) (concluding otherwise)). Because
the court finds public official immunity inapplicable in this case, it is unnecessary for the court to resolve this issue at
this time.
48
probable cause, and 4) the earlier proceeding ended in favor of the plaintiff. Turner, 369 N.C. at
425.42
Defendants Spivey, Miller, and Legan initiated and participated in the prosecution of
defendant. Taking the facts in light most favorable to plaintiff, as previously determined by the
court, defendants did so without probable cause and, the court finds, maliciously. See Cook v.
Lanier, 267 N.C. 166, 170 (1966) (“Although a want of probable cause may not be inferred from
malice, the rule is well settled that malice may be inferred from want of probable cause, e.g., as
where there was a reckless disregard of the rights of others in proceeding without probable cause.”).
Finally, it is undisputed the earlier proceedings ended in favor of plaintiff.
Defendants argue that plaintiff’s claims for false imprisonment and malicious prosecution
are supported by probable cause as evidenced by the arrest warrants issued by a neutral magistrate
and the true bills of indictment returned by the Wake County grand jury. (DE 113 at 25). However,
all cases cited by defendants address instances where officers sought arrest warrants and indictments
prior to executing an arrest. See Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975) (holding “an
indictment, ‘fair upon its face,’ and returned by a ‘properly constituted grand jury,’ conclusively
determines the existence of probable cause and requires issuance of an arrest warrant without further
inquiry”); Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (same); Wardrett, 2016 WL
1408091, at *3 (holding “[i]n instances where arresting officers take the additional procedural step
42
As clarified by the Supreme Court, “a false imprisonment ends once the victim becomes held pursuant to
such process—when, for example, he is bound over by a magistrate or arraigned on charges,” and thereafter, “unlawful
detention forms part of the damages for the ‘entirely distinct’ tort of malicious prosecution, which remedies detention
accompanied, not by absence of legal process, but by wrongful institution of legal process.” Wallace v. Kato, 549 U.S.
384, 389–90 (2007). Here, plaintiff alleges, and the court has found for summary judgment purposes, that plaintiff’s
warrantless arrest was unsupported by probable cause and thus supports a false imprisonment claim. Thereafter, plaintiff
became subject to the process as discussed in Wallace, where arrest warrants were issued for plaintiff’s arrest and grand
juries returned indictments.
49
of seeking an arrest warrant, the defendant is then arrested not upon what the officers believed, but
upon the warrant that the magistrate issued,” “[i]f there is valid probable cause for an arrest, it
follows that there is probable cause for an arrest warrant,” and “there was ample probable cause for
the officers to seek an arrest warrant.”); see also Turner, 369 N.C. at 425-26 (“grand jury’s action
in returning an indictment is only prima facie evidence of probable cause and that, as a result, the
return of an indictment does not as a matter of law bar a later claim for malicious prosecution”).43
Additionally, the Fourth Circuit has rejected defendants’ argument in the context of a North
Carolina malicious prosecution claim. Evans, 703 F.3d at 657 (“On appeal, the officers urge us to
hold—as we do in the § 1983 context—that Prosecutor Nifong’s decision to seek indictments against
the Evans plaintiffs broke the causal chain between their acts and the indictments. Certainly, no
North Carolina court has adopted the attenuated view of causation espoused by the plaintiffs.”).44
Accordingly, plaintiff’s state-law malicious prosecution claim is allowed to proceed against
defendants Spivey, Miller, and Legan in both their individual and official capacitates.
c.
Civil Conspiracy Claim
North Carolina law does not recognize a civil action for conspiracy. There is, rather, an
43
Defendants additionally argue probable cause is established by “the officers’ observations” of plaintiff
committing a crime and “the denial of the directed verdict motions.” (DE 113 at 26). However, the court has rejected
the former argument when viewing evidence in light most favorable to plaintiff, and defendants have provided no case
law in support of the latter proposition.
44
Nor does Evans holding disturb the court’s above holding that plaintiff’s “malicious prosecution” claims
grounded in Fourth Amendment claims brought pursuant to § 1983 survive summary judgment. As stated by the Evans
court, “a police officer is not liable for a plaintiff’s unlawful seizure following indictment ‘in the absence of evidence
that [the officer] misled or pressured the prosecution.’” 703 F.3d at 648. Here, plaintiff has maintained that defendants
Spivey, Miller, and Legan “reported the same material facts to Wake County investigators, prosecutors, and the criminal
trial jury” that were not true. (DE 114 at 28). For the same reasons, the court finds defendants are not entitled to public
officer’s immunity in that, taking facts in light most favorable to plaintiff, defendants Spivey, Miller, and Legan
undertook the prosecution of plaintiff maliciously as defined in the immunity analysis context, by “wantonly do[ing] that
which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or
injurious to another.” Grad v. Kaasa, 312 N.C. 310, 313 (NC 1984). The North Carolina Supreme Court classifies an
act as wanton, in part, by “manifesting a reckless indifference to the rights of others.” Id.
50
action for damages caused by acts committed pursuant to a formed conspiracy. See Reid v. Holden,
242 N.C. 408 (1955). “A conspiracy has been defined as ‘an agreement between two or more
individuals to do an unlawful act or to do a lawful act in an unlawful way,” Harris v. Matthews, 361
N.C. 265, 284 (2007), and the agreement for conspiracy “may be established by circumstantial
evidence,” as long as it is not founded on baseless speculation or conjecture, Dickens v. Puryear, 302
N.C. 437, 456 (1981).
Here, plaintiff argues that “there is ample circumstantial evidence from which a reasonable
jury could find that Plaintiff has established a civil conspiracy claim,” in that 1) “[t]he stories of all
three Defendants ‘lined up’ perfectly in that they reported the same material facts to Wake County
investigators, prosecutors, and the criminal trial jury regarding their claims that Plaintiff
intentionally floored the gas pedal of his truck, causing the tires to spin and kick up dirt, and that he
intentionally dragged Deputy Spivey with the truck as a deadly weapon,” and 2) “minutes
immediately following the shooting, all three Defendants huddled together in the field before other
personnel arrived and discussed what had just transpired.” (DE 114 at 28-29).
Although plaintiff overstates what the evidence reveals in that, for example, no evidence has
been put forth as to what defendants Spivey, Miller, and Legan discussed while standing in the field
following the shooting, (see DE 115 ¶ 144 (stating defendants “continued to talk privately and
without Morgan or Johnson being able to hear”)), the undisputed evidence reveals that defendants
Spivey, Miller, and Legan each testified at plaintiff’s criminal trial that plaintiff hit the gas in such
a way that the tires of the truck spun and this in turn caused defendant Spivey to be drug alongside
the vehicle. (See DE 112-8 at 105:14-106:16; DE 112-11 at 191:3-21; DE 112-13 at 159:14-16).
Plaintiff has put forth evidence in opposition, alleging that defendant’s version is inaccurate and that
51
they agreed to lie to investigators to cover their misconduct. (DE 115 ¶ 134; see also DE 111 ¶ 28;
Johnson dep. (DE 116-24) at 142:17-143:-22 (Johnson testifying he never heard the engine rev, that
the truck was “sitting there idle,” and the rear tires did not spin); Morgan dep. (DE 116-20) at
289:15-290:3 (“That truck rolled forward. Spivey – Spivey knows as well as I do, I mean, he
grabbed ahold of me, pulled me up, truck rolled forward.”)).
Given the disputed nature of these material facts and taking facts in light most favorable to
plaintiff with all reasonable inferences therefrom drawn in plaintiff’s favor, a reasonable jury could
conclude that defendants Spivey, Miller, and Legan entered into an agreement to do an unlawful act,
namely to lie to investigators, prosecutors, and the criminal trial jury concerning the events of July
5, 2013, in order for defendants’ actions to appear justified.
Accordingly, plaintiff’s claim for civil conspiracy against defendants’ Spivey, Miller, and
Legan in their individual capacities survive defendants’ motion for summary judgment.45
3.
Claim on Sheriff’s Bond
Plaintiff’s claim on sheriff’s bond is a derivative claim that rises and falls with claims against
defendants in their official capacities. Because plaintiff’s claims against defendants Spivey, Miller,
and Legan in their official capacities for state-law false imprisonment and malicious prosecution
survive defendants’ motion to dismiss, plaintiff’s claim on sheriff’s bond also survives. As stated
previously by the court, plaintiff may recover on sheriff’s bond for any breaches of the bond
45
Under North Carolina law, a municipality’s employees cannot be sued in their official capacities for
conspiracy, as that would amount to a claim that the municipality itself has conspired. Houpe v. City of Statesville, 128
N. C. App. 334, 351-52 (1998); Iglesias v. Wolford, 539 F. Supp.2d 831, 835-836 (E.D.N.C.2008) (dismissing claim
of civil conspiracy because “under North Carolina law, a municipality ordinarily cannot be a party to a conspiracy, and
a municipality’s employees therefore cannot be sued [for civil conspiracy] in their official capacities”); Turner v.
Randolph County, 912 F. Supp. 182, 186 (M.D.N.C.1995) (dismissing conspiracy claim because “all of the named
defendants are agents of Randolph County and it is not possible for Randolph County to conspire with itself”).
52
accruing on or after October 6, 2013, up to the $20,000.00 amount of the bond.46
CONCLUSION
Based on the foregoing, defendants’ motion for summary judgment (DE 110) is GRANTED
IN PART and DENIED IN PART. Accordingly, plaintiff’s claim pursuant to § 1983 for violations
of plaintiff’s Fourth Amendment rights regarding defendant Spivey’s traffic stop of plaintiff is
DISMISSED.
The following claims remain:
1) Plaintiff’s claims pursuant to § 1983 for violations of plaintiff’s Fourth Amendment rights
regarding defendant Legan’s search of plaintiff’s truck; defendant Spivey’s arrest of plaintiff and
use of force; defendant Miller’s use of deadly force; and defendant Legan’s bystander liability;
2) Plaintiff’s state-law claims against defendants Spivey and Miller in their individual
capacities for assault and battery;
3) Plaintiff’s state-law claims against defendants Spivey, Miller, and Legan in their
individual and official capacities for false imprisonment and malicious prosecution;
4) Plaintiff’s state-law claims against defendants Spivey, Miller, and Legan in their
individual capacities for civil conspiracy; and
5) Plaintiff’s claim on sheriff’s bond.
46
The court previously held that plaintiff’s claims for negligence and gross negligence against defendants
Spivey, Miller, and Legan, in their individual capacity, except regarding their failure to possess the necessary training
and experience to serve as deputies (applicable to plaintiff’s fourth, sixth, and eighth causes of action) survived Sheriff
Defendants motion for partial judgment and Ohio Casualty’s motion to dismiss. (DE 96 at 34). Defendants argue their
motion for summary judgment addresses all remaining claims, (see DE 113 at 28), and plaintiff does not argue otherwise.
Neither party address any negligence claims. Thus, the court considers any potential negligence claims to either be
abandoned or to have not been originally asserted by plaintiff. See Crosby v. City of Gastonia, 635 F.3d 634, 638 n.3
(4th Cir. 2011) (“Thus, the district court quite evidently considered the plaintiffs to have forgone their state constitutional
claims, see, e.g., Forrest Drive Assocs. v. Wal–Mart Stores, Inc., 72 F. Supp.2d 576, 586 n.5 (M.D.N.C. 1999)
(allegations neither argued nor briefed at summary judgment stage deemed abandoned), and therefore did not address
those claims in its final Order.”).
53
The parties are DIRECTED to confer and file within 21 days from date of entry of this order
a joint status report specifying the estimated length of the trial, three alternative suggested trial dates,
and suggested alternative dispute resolution techniques to be employed prior to trial in attempt to
resolve the issues between the parties. Upon receipt of the parties’ report, unless advance conference
with the court is requested therein, the court will enter such further order as is warranted regarding
pretrial and trial scheduling.
SO ORDERED, this the 2nd day of January, 2019.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
54
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