Evans v. Capps et al

Filing 278

ORDER adopting 271 Memorandum and Recommendations and 276 Memorandum and Recommendations; granting 161 Motion for Summary Judgment, 175 Motion for Summary Judgment, 191 Motion for Summary Judgment, 254 Motion for Summary Judgment, and 259 Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 9/27/2018. Copy sent to George Reynold Evans via US Mail to Tabor Correctional Institution, 4600 Swamp Fox Hwy West, Tabor City, NC 28463. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CONSOLIDATED ACTION

GEORGE REYNOLD EVANS,
Plaintiff,
v.
CHRISTOPHER CAPPS, et al.,
Defendants.

GEORGE REYNOLD EVANS,
Plaintiff,
v.

MICHAEL GROOM, et al.,
Defendants.

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No. 7:15-CV-252-BO

No. 7:17-CV-4-BO

ORDER
This cause comes before the Court on the memorandum and recommendations (M&Rs) of
United States Magistrate Judge Robert B. Jones, Jr. recommending that the Court grant five
pending motions for summary judgment filed by defendants. Plaintiff, who proceeds pro se, has
timely filed what he has captioned a motions of rebuttal in response to the M&Rs, which the Court
construes as his objections to the M&Rs. For the reasons that follow, the Court ADOPTS the
M&Rs and GRANTS the pending motions for summary judgment.

BACKGROUND
This consolidated action concerns plaintiff's federal civil rights and related state law claims
arising out of an incident which occurred on March 30, 2014, in Columbus County, North Carolina.
During the incident, plaintiff, who had been pursued by several law enforcement agencies in a
high-speed vehicle chase which crossed state and county lines, was shot approximately forty-three
times in approximately twelve seconds. The following facts are relied upon by Magistrate Judge
Jones as undisputed. On March 29, 2014, defendant Groom, a detective with the Jacksonville
Police Department, responded to the shooting of plaintiffs wife at a restaurant in Jacksonville,
North Carolina, whereupon he discovered that the shooter had fled in the victim's vehicle and that
the victim and another eye-witness identified plaintiff as the shooter. Warrants for plaintiffs arrest
were issued at 8:00 a.m. on March 30, 2014. Defendant Keller, a detective with the Jacksonville
Police Department, applied for and received an order from a Superior Court Judge under 18 U.S.C.

§ 3122 authorizing the installation and monitoring of a pen register and/or trap and trace device
with respect to plaintiffs cell phone. Plaintiffs location was ultimately discovered through the
use of a GPS tracking device that had been installed by the seller of the vehicle plaintiff was alleged
to be driving, defendant Mills. Plaintiff was discovered leaving a gas station in Horry County,
South Carolina, and was pursued by South Carolina law enforcement. When plaintiff crossed back
into Columbus County, North Carolina, deputies from the Columbus County Sheriffs Office
pursued plaintiff in a high-speed chase. The deputies were notified that plaintiff had outstanding
warrants for attempted murder and that he was believed to be armed and dangerous.
State Highway Patrol officers later took the lead in the vehicle chase, which ended on
Highway 74 near Lake Waccamaw, North Carolina when plaintiff drove his car into the grassy
median. Plaintiff exited the vehicle with a firearm, specifically a handgun, in his right hand.

2

Plaintiff failed to respond to commands by law enforcement officers to drop his weapon and
surrender; instead, plaintiff began to walk toward the westbound lanes of Highway 74. Defendant
Sergeant Gore was behind plaintiff at this time, and, with his service weapon drawn, began
advancing toward plaintiff. Plaintiff turned toward Gore, with his arm still outstretched holding
the handgun. The defendant law enforcement officers began to fire at plaintiff, discharging
approximately seventy-one rounds. Plaintiff fell to the ground after approximately seven seconds
of shooting. After plaintiff fell to the ground, Gore raised his arm, indicating to fellow law
enforcement officers to cease fire. One more round of ammunition was fired after Gore gave the
cease-fire instruction, and officers proceeded to render first-aid to plaintiff and contact emergency
medical personnel.
On March 10, 2017, plaintiff was convicted by an Onslow County, North Carolina jury of,
inter alia, assault with a deadly weapon with intent to kill or inflict serious injury in connection
with the shooting of his wife. On December 4, 2017, plaintiff entered an Alford plea to charges of
assault with a firearm on a law enforcement officer and fleeing/eluding arrest with a motor vehicle
in connection with the above recounted events on March 30, 2014. See North Carolina v. Alford,
400 U.S. 25 (1970) {allowing a defendant to consent to punishment without admitting to
participating in the crime).
Plaintiff filed case No. 7:15-CV-252-BO against defendants in November 2015, and in
June 2017, plaintiffs first-filed action was consolidated with a second-filed action, No. 7:17-CV4-BO, which plaintiff had filed in state court and which defendants removed to this Court on the
basis of its federal questionjurisdiction. [DE-1; 129]. In his consolidated complaint, plaintiff has
alleged claims under 42 U.S.C. § 1983 for excessive force, equal protection violations, due process
violations, cruel and unusual punishment, as well as claims of supervisory liability, pattern or

3

practice of disregarding constitutional rights, and failure to train/deliberate indifference against
Sheriff Hatcher. Plaintiff has further alleged claims under 42 U.S.C. §§ 1985 and 1988, as well as
claims for violations of the North Carolina Constitution and laws, including claims for negligence,
gross negligence, and intentional infliction of emotional distress. By order entered March 26,
2018, and amended on May 15, 2018, the Court referred several pending motions to Magistrate
Judge Jones for ruling and referred three of the pending motions for summary judgment to
Magistrate Judge Jones for entry of a memorandum and recommendation. [DE 241]. On August
16, 2018, the Court referred the remaining two motions for summary judgment to Magistrate Judge
Jones for entry of an M&R. Magistrate Judge Jones has recommended that summary judgment be
entered in defendants' favor on all of plaintiffs claims.
DISCUSSION
A district court is required to review de novo those portions of an M&R to which a party
timely files specific objections or where there is plain error. 28 U.S.C. § 636(b)(l); Thomas v.
Am, 474 U.S. 140,

149~50

(1985).

The district court is only required to make a de novo

determination of those specific findings to which the plaintiff has actually objected. See Camby

v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
The Court has reviewed the M&Rs and finds no plain error. Accordingly, the Court
proceeds to consider plaintiffs timely specific objections. Plaintiff challenges the following
portions of the recommendation to grant the motions for summary judgment filed by the Columbus
County Sheriffs defendants, 1 the State Highway Patrol defendants, and defendants City of
Jacksonville and Groom [DE 271]: striking plaintiffs declaration; defendant Grooms' warrantless
use of GPS monitoring; whether the video evidence supports that there is a genuine issue of

1

The Court adopts the grouping of defendants used in the relevant M&R. See [DE 271 at 1-2].
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material fact as to the amount of force used; whether the M&R correctly determined there was a
policy in place on firearms prior to January 16, 2015; and whether the M&R correctly resolved the
state law claims. Plaintiff has raised the following objections to the recommendation to grant Mills
and Keller's motions for summary judgment: objections arising out of the GPS tracking of the
vehicle plaintiff was driving and the affidavit filed by Keller in support of the application for pen
register and/or trap and trace device.
I.

Motions to strike 2
Plaintiff invoked his Fifth Amendment privilege against self-incrimination in response to

defendants' requests for admissions and deposition questions.

Plaintiff then submitted a

declaration in support of his opposition to the motions for summary judgment in which he
describes the events in question. "[T]he Fifth Amendment privilege cannot be invoked as a shield
to oppose depositions while discarding it for the limited purpose of making statements to [resist]
a summary judgment motion." In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991). In other
words, while a civil litigant is free to invoke the Fifth Amendment privilege, he cannot then use
that privilege as a sword "to gain an unequal advantage against the party he has chosen to sue,"

Wehling v. Columbia Broad Sys., 608 F.2d 1084, 1087 (5th Cir. 1979), by offering an
unquestioned version of events. Edmund, 934 F.2d at 1308.
Plaintiffs argument that the pendency of his criminal charges required that he invoke his
Fifth Amendment privilege, and thus that his declaration submitted after his criminal proceedings
concluded should not be stricken, misses the mark - the question is not whether plaintiff
appropriately invoked privilege, but rather what the proper effect is of plaintiffs decision to do so.

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Although Magistrate Judge Jones has ruled on the motions to strike, as non-dispositive pretrial
motions, and has not entered a recommendation as to a ruling, the Court considers plaintiffs
objection as an appeal from an order of a magistrate judge under Local Civil Rule 72.4.
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Wehling, 608 F.2d at 1087. Here, the appropriate remedy, given the stage of the case and the
resulting unfairness to defendants, is the striking of plaintiffs declaration. Barker v. Int'! Union
of Operating Engineers Local 150, No. 08 C 50015, 2011WL6338800, at *3 (N.D. Ill. Dec. 19,
2011) (noting unfairness of admitting statements where party has not had opportunity to depose
affiant and "flesh out the circumstances of her account and her motivations."). The decision to
grant the motions to strike is affirmed.
II.

Motions for summary judgment

A. Legal standards
The remaining objections by plaintiff concern the recommendation to grant the motions for
summary judgment. In determining whether summary judgment should be allowed, the Court
considers, whether, when viewing the evidence and the inferences in the light most favorable to
plaintiff, genuine issues of fact remain for trial. Scott v. Harris, 550 U.S. 372, 378 (2007). "A
dispute is genuine if a reasonable jury could return a verdict for the nonmoving party.... and [a]
fact is material if it might affect the outcome of the suit under the governing law." Libertarian
Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations
omitted).
The individual law enforcement defendants have also raised the defense of qualified
immunity to claims made against them in their individual capacity. Qualified immunity shields
government officials from liability so long as they can reasonably believe that their conduct does
not violate clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry
v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en bane). A court employs a two-step procedure for
determining whether qualified immunity applies that "asks first whether a constitutional violation
occurred and second whether the right violated was clearly established," Melgar v. Greene, 593

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F.3d 348, 353 (4th Cir. 2010), and a court may exercise its discretion to decide which prong of the
analysis to decide first based on the circumstances presented. Pearson v. Callahan, 555 U.S. 223,
236 (2009). Where qualified immunity has been raised, viewing the facts and drawing the
reasonable inferences in the light most favorable to the plaintiff generally means adopting the
plaintiffs version of the facts. Scott, 550 U.S. at 127; Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008). However, a court should not adopt a party's version of events when it is blatantly
contradicted by the record. Scott, 550 U.S. at 380.
B. Fourth Amendment challenge to GPS search and pen register
The majority of plaintiffs objections to the M&Rs arise out of Grooms' use of a GPS
tracking device to locate the vehicle plaintiff was driving after he fled the scene of his wife's
shooting. Plaintiff contends there are genuine issues of material fact as to whether he was an owner
or permissive user of the vehicle and whether he had an expectation of privacy in its whereabouts.
As Magistrate Judge Jones held, however, the summary judgment record demonstrates that
Grooms was informed that plaintiff's wife, Ms. Evans, owned the vehicle alone. [DE 192-2]
Grooms Deel.~ 16; [DE 192-3] Mills Deel.~ 7. "To have standing to bring a Section 1983 claim
alleging the violation of his property rights under the Fourth Amendment, [plaintiff] must: (1)
assert his own property rights, and (2) allege an injury in fact." Eiland v. Jackson, 34 F. App'x
40, 42 (3d Cir. 2002); see also Rakas v. Illinois, 439 U.S. 128, 140 (1978) (standing to challenge
a search under the Fourth Amendment depends on "whether the disputed search and seizure has
infringed an interest of the [challenger] which the Fourth Amendment was designed to protect.");
Alderman v. United States, 394 U.S. 165, 174 (1969) ("Fourth Amendment rights are personal

rights which, like some other constitutional rights, may not be vicariously asserted").

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There is no suggestion in the record that Ms. Evans gave plaintiff permission to drive the
vehicle, and plaintiff is not the record owner of the vehicle. Moreover, there is no reasonable
expectation of privacy in a stolen vehicle, United States v. Hargrove, 647 F.2d 411, 412 (4th Cir.
1981 ), :and whether or not plaintiff was later charged with possessing a stolen vehicle is not, as
plaintiff suggests, dispositive of the inquiry here. In light of this, and the lack of any contrary
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eviden~e presented, plaintiff cannot demonstrate that he had a legitimate expectation of privacy in
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the vehicle. Cf United States v. Gibson, 708 F.3d 1256, 1277 (11th Cir. 2013) (permissive
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borro~er of vehicle has standing to challenge installation of GPS device); United States v.
Hernabdez, 647 F.3d 216, 220 (5th Cir. 2011) (permissive borrower of vehicle has standing to
I

I

I

challertge GPS monitoring of movements on the highway). His claim arising out of the GPS search
'

therefdre fails.
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:Additionally, plaintiff has objected to the recommendation's alternative conclusion that,
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even

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i~ plaintiff has

standing to challenge the GPS device as a warrantless search, his challenge

fails because the GPS device in this instance was installed by a private third-party, defendant Mills,
and not by the government itself. A search for Fourth Amendment purposes occurs when the
government installs a GPS device on a target's vehicle and uses that device to monitor the vehicle's
movements. United States v. Jones, 565 U.S. 400, 404 (2012). Here, the government did not
install the GPS device, and thus no physical instruction by the government occurred. Absent
physical intrusion by the government, no warrant was required, and no constitutional violation
occurred in the warrantless use of the GPS device. See also Jones, 565 U.S. at 425 (Alito, J.
concurring) (noting that if GPS monitoring can be committed without committing a technical
trespass, "for example, [if] the Federal Government required or persuaded auto manufacturers to

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include a GPS tracking device in every car-the [Jones] Court's theory would provide no
protection.").
Plaintiff has also objected to the determination that defendant Mills, the owner of the used
(

car dealership who installed the GPS tracking device on the vehicle, is not a state actor and
therefore not subject to liability under 42 U.S.C. § 1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999); Andrews v. Fed Home Loan Bank ofAtlanta, 998 F.2d 214, 217 (4th Cir.
1993).
A private party can be deemed a state actor in four contexts: (1) when the state has
coerced the private actor to commit an act that would be unconstitutional if done
by the state; (2) when the state has sought to evade a clear constitutional duty
through delegation to a private actor; (3) when the state has delegated a traditionally
and exclusively public function to a private actor; or (4) when the state has
committed an unconstitutional act in the course of enforcing a right of a private
citizen.
Andrews, 998 F.2d at 217. As to the circumstances which could be relevant here, there is no

genuine dispute that Mills was not coerced by Grooms into committing an act which would be
unconstitutional if done by the state, or that any state duty was delegated to Mills. Accordingly,
Mills is properly not deemed to be a state actor and cannot be liable under§ 1983.
Plaintiff also contends that he has submitted sufficient evidence to create a genuine issue
of material fact as to whether defendant Keller was untruthful in his application for a warrant to
track plaintiffs cell phone. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A police
officer "contravenes the Fourth Amendment when he procures a search warrant through the use of
false statements, whereby a magistrate would not have otherwise found probable cause." Unus v.
Kane, 565 F.3d 103, 124 (4th Cir. 2009). Authorization to utilize a pen register or trap/trace device

requires a showing of probable cause. See United States v. New York Tel. Co., 434 U.S. 159, 168
(1977). Probable cause exists where, as a result of a practical, common-sense consideration of all

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of the circumstances, "there is a fair probability that contraband or evidence of a crime will be
found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983).
Here, even excluding the portions of Keller's affidavit challenged by plaintiff, see [DE
260-2]; [DE 268], including whether the affidavit accurately described plaintiffs position in the
restaurant parking lot prior to the shooting of plaintiffs wife, there existed probable cause
sufficient to support the issuance of the order authorizing a pen register and/or trap and trace
device. Specifically, Keller's affidavit states that plaintiff had been identified as having shot his
wife, that plaintiff had fled in his wife's vehicle, and that plaintiff had, subsequent to the shooting,
called his family members from the telephone number listed in the application. This is sufficient
to support a probable cause finding, and no Fourth Amendment violation occurred.
In light of the foregoing findings that no Fourth Amendment violation occurred, Grooms

and Keller, and Mills to the extent he could be deemed to be a state actor, are alternatively entitled
to qualified immunity on plaintiffs Fourth Amendment claims arising out of the use of a GPS
device and the application for a pen register and/or trap and trace device.
C. Excessive force
In his objections to the M&Rs, plaintiff contends that the video evidence that he submitted

shows that he was shot by law enforcement officers with his hands up in the air, and that he
continued to be shot even after he went down. Plaintiff contends that defendant Gore's testimony
reveals that plaintiff did not point his weapon at him, and therefore law enforcement was not
justified in firing at plaintiff. Plaintiff also contends that his video contradicts defendants' video,
and thus creates a genuine issue of material fact. Plaintiff contends that there is no video of
plaintiff pointing a gun, and that defendants fired ten rounds after plaintiff fell and lay helpless on

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the ground. In essence, the Court construes plaintiffs filing as an objection to the finding that the
force used was objectively reasonable.
At the outset, the Court can discern no contradiction between or discrepancies in the
dashcam video evidence submitted by the parties. Compare video footage at [DE 58] and [DE
178]. Rather, the video evidence reveals that plaintiff exited his vehicle on the grassy median with
his arms extended and parallel to the ground. [DE 178-2, B543-14-03 at 9:15-9:31]; [DE 58,
"Barnes Car Video" at 14:21-14:22]. Plaintiff continues to walk away from his car while flexing
and extending his elbows, his arms remaining either close-to-parallel to the ground or raised up
toward his head. Id. As defendant Gore approaches plaintiff with his firearm drawn, plaintiff
turns toward Gore with his arm extended toward Gore. [DE 178-2, B534-13-05 at 6:22-6:26]; [DE
58, "Barnes Car Video" at 14:22]. Gore's voluntary statement, [DE 222], further does not
demonstrate that plaintiff was shot by other officers while his hands were in the air. Rather, Gore's
statement specifically provides that "[o]nce [Gore] got approximately 10-15 yrds [sic] from
[plaintiff], [plaintiff] turned toward [Gore] with his hands coming down, shots were fired." Id. at
2.
When determining whether the force used to effect a seizure was reasonable, a court must
consider the facts and circumstances confronting the officers, and specific factors to be considered
are the severity of the crime at issue, whether the suspect poses an immediate threat, and whether
the suspect is actively resisting or attempting to flee. Graham v. Connor, 490 U.S. 386, 396
(1989); Henry v. Purnell, 652 F3d 524, 531 (4th Cir. 2011) (en bane). "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 v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing

Tennessee v. Garner, 471 U.S. 1 (1985)).

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In determining whether the force utilized was objectively reasonable, the Court has
considered the undisputed facts and plaintiffs version of the disputed facts, except where his
version is contradicted by the video evidence. Undisputed is that law enforcement officers on the
scene knew that plaintiff was a suspect in a shooting and that plaintiff had led multiple law
enforcement agencies on a multi-state high-speed chase before his car stopped in the median of a
four-lane public highway. Dashcam recordings reveal that the officers believed that plaintiff was
armed when he exited the vehicle, see, e.g., [DE 78, SHP Video Title 26 at 9:41-42] (officer stating
on the radio "he's got a gun in his hand" after plaintiff exited his vehicle). Although plaintiff
contends that he did not point his gun at defendant Gore, he does not deny he had a gun in his hand
during the encounter.
While mere possession of a weapon is insufficient to support a finding that a suspect poses
a threat of serious physical harm, "an armed suspect need not engage in some specific actionsuch as pointing, aiming, or firing his weapon-to pose a threat." Cooper v. Sheehan, 735 F.3d
153, 159 n.9 (4th Cir. 2013). Here, plaintiff, who had an outstanding arrest warrant for assault
with intent to kill, was surrounded by multiple law enforcement vehicles and uniformed law
enforcement officers on a public highway. Plaintiff had ignored commands to drop his weapon
and surrender and was walking away from the officers. Plaintiff turned toward defendant Gore
with his arm outstretched, pointing his hand in defendant Gore's direction. In these circumstances,
it was objectively reasonable for the defendant officers to believe that plaintiff posed a threat of
serious physical harm and that he was pointing a gun at Gore. See Braswell v. Wiggs, 139 F.3d
888 (4th Cir. 1998) (deadly force justified where suspect waived arm as if holding a weapon even
where officers failed to warn suspect prior to shooting); Slattery v. Rizzo, 939 F.2d 213, 215 (4th
Cir. 1991) (deadly force justified where officer reasonably believed suspect was threatening officer

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with a weapon and where suspect had failed to comply with orders); Gregory v. Zumult, 294 F.
App'x 792, 795 (4th Cir. 2008) (deadly force justified where suspect failed to comply with orders
and was perceived threat to safety of officers).
The decision to use deadly force was not objectively unreasonable, nor was the number or
timing of the shots fired. The fact that the officers fired approximately seventy-one rounds does
not necessarily result in a finding that the force used was objectively unreasonable. See Elliott, 99
F.3d at 643 (number of shots fired not determinative ofreasonableness). Indeed, where a suspect
points a weapon at officers while attempting to flee, the use of multiple gunshots by multiple
officers has been found to be an objectively reasonable response. See, e.g., Hirpassa v. Prince

George's Cty., Md, No. RWT 09CV2631, 2010 WL 2730651, at *5 (D. Md. July 9, 2010), aff'd
sub nom. Hirpassa v. Prince George's Cty. Gov 't, 406 F. App'x 739 (4th Cir. 2010). That the law
enforcement officers continued to fire for a period after plaintiff fell to the ground was also
objectively reasonable in light of the facts and circumstances. The video evidence reflects that
there were twelve seconds of gunfire and that plaintiff was on the ground for five seconds before
the shooting ended. The video evidence plainly shows that after the surrounding officers began
shooting at plaintiff, Gore, who was the officer closest to plaintiff, raised his arm to indicate to the
other officers to stop shooting, and the sound of gunfire ceases with the exception of one additional
shot. [DE 178-2, B534-13-05 at 6:37];[DE 58, "Barnes Car Video" at 14:22]. Gore had the best
vantage point to determine whether plaintiff, who was armed, continued to pose a serious threat,
and when he made that determination, the shooting ceased. There was no break in gunfire, and all
officers but defendant Gore were positioned far enough away from plaintiff that they could not
readily determine whether he remained a threat. CJ Brockington v. Boykins, 637 F.3d 503, 507
(4th Cir. 2011) (allegation that extent of suspect's injuries were evident to officer and that officer

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stood over suspect and continued to shoot while suspect lay wounded on the ground sufficient to
state a claim for excessive force).
Where "police officers are justified in firing at a suspect in order to end a severe threat to
public safety, the officers need not stop shooting until the threat has ended." Plumhoff v. Rickard,
572 U.S. 765 (2014). The Court finds that the force used in this instance to seize plaintiff was
objectively reasonable, and plaintiffs constitutional right was not violated. The law enforcement
officer defendants are also, therefore, entitled to qualified immunity as to plaintiffs excessive
force claim.
D. Failure to train claim against Sheriff Hatcher
Plaintiffs only specific objection to the M&R's resolution of his failure to train claim
against Sheriff Hatcher is that plaintiff contends that his exhibit reveals that there was not a policy
in place on firearms until January 16, 2015. "[T]he inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact." City of Canton, Ohio v. Harris, 489
U.S. 378, 388 (1989). Deliberate indifference is a "stringent standard of fault," requiring plaintiff
to prove, in these circumstances, that Sheriff Hatcher "disregarded a known or obvious
consequence of his action." Bd. ofCty. Comm 'rs ofBryan Cty., Oki. v. Brown, 520 U.S. 397, 410
(1997).
However, as the Court has determined that no violation of plaintiffs constitutional rights
occurred, there can be no liability on the part of the Sheriff for inadequate training. See Young v.
City ofMount Ranier, 238 F.3d 567, 579 (4th Cir. 2001); Grayson v. Peed, 195 F.3d 692, 697 (4th

Cir. 1999). Moreover, plaintiffs evidence would support only a single incident of allegedly
unconstitutional conduct, which is generally insufficient to go forward on a claim for liability for

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failure to train. Connick v. Thompson, 563 U.S. 51, 62 (2011) ("a pattern of similar constitutional
violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference
for failure to train.") (citation omitted). As a narrow exception to the general rule, section 1983
liability may be imposed in the absence of evidence of a pattern of constitutional violations only
where the constitutional violation was the "highly predictable" result of the failure to train. Bryan
Cty., 520 U.S. at 409.

Plaintiff has failed to satisfy his evidentiary burden to go forward on such a claim, as the
Columbus County defendants have proffered evidence that they have received the appropriate
training which plaintiff has failed to rebut. See, e.g., [DE 164-1] Hatcher Aff. ~~ 4-6; [DE 164-2]
Barnes Aff.

~~ 2-3.

E. Section 1985 conspiracy claim
Plaintiff objects to the M&R' s resolution of his § 1985 conspiracy claim, arguing that he
has proven that a conspiracy existed between Grooms and the other deputies based on
discriminatory animus. In order to establish a§ 1985 violation, a plaintiff must "demonstrate with
specific facts that the defendants were 'motivated by a specific class-based, invidiously
discriminatory animus to deprive the plaintiff[] of the equal enjoyment of rights secured by the
law to all."' Francis v. Giacomelli, 588 F.3d 186, 196-97 (4th Cir. 2009) (internal alteration and
citation omitted). The Fourth Circuit "has rarely, if ever, found that a plaintiff has set forth
sufficient facts to establish a section 1985 conspiracy, such that the claim can withstand a summary
judgment motion" and has "specifically rejected section 1985 claims whenever the purported
conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts."
Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995). Plaintiff has failed to present any evidence,

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as opposed to argument, of racial discriminatory animus, and summary judgment in favor of the
moving defendants is therefore appropriate.
F. State Constitution and state law claims
Plaintiffs objections to the M&R's resolution of his state constitution and state law claims
center on defendants' decision to remove plaintiffs action filed in state court to be consolidated
with his already pending federal case. Plaintiff has not made a specific objection to the resolution
of the state law claims themselves, and the Court has found no clear error by the magistrate judge.
CONCLUSION
The Court has considered the memorandum and recommendations of the magistrate judge
in light of the applicable standards, including engaging in de novo review of those portions of the
recommendations to which plaintiff filed specific objections, and finds that summary judgment in
favor of all defendants is appropriate as to each of plaintiffs claims raised in this consolidated
action. Accordingly, the Court ADOPTS the memorandum and recommendations [DE 271 &
276]. Defendants' motions for summary judgment [DE 161, 175, 191, 254, 259] are GRANTED.
The clerk is DIRECTED to enter judgment accordingly in each of these consolidated cases and to
close the files.

SO ORDERED, this

i l day of September, 2018.

T~'¥TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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