Coats v. Pope et al
Filing
57
ORDER accepting in part and denying in part the 45 Report and Recommendation. As to the Arresting Officers, Defendants Pope, Nichols, Cardarelli, and White, their 33 motion for summary judgment is GRANTED. As to Chief of Police of the City of Greenwood Gerald Brooks and Sheriff of Greenwood County Tony Davis, their 33 32 motions for summary judgment are GRANTED. As to the GCDC Officers, Defendants Montgomery, Murray, and Osborne, their 32 35 motions for sum mary judgment are GRANTED as to the state law claims and DENIED as to the Fourteenth Amendment claim. The parties are directed to attempt to mediate this case within forty-five (45) days. If not resolved, counsel shall appear for a pretrial conference on January 14, 2020, at 9:30 a.m., at which time the Court will set the date for jury selection and trial. (Mediation Due by 12/16/2020.) Signed by Honorable Terry L. Wooten on 10/30/2019. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
LaKrystal Coats, as Personal Representative)
of the Estate of Demetric Cowan,
)
)
Plaintiff,
)
)
v.
)
)
Ray Pope, in his individual capacity, FNU )
Nichols, in his individual capacity, FNU
)
Cardarelli, in his individual capacity, FNU )
White, in his individual capacity, Gerald
)
Brooks, in his official capacity as Chief of )
Police of the City of Greenwood, Sidney
)
Montgomery, in his individual capacity,
)
Roy Murray, in his individual capacity,
)
Pamela Osborne, in her individual capacity, )
and Tony Davis, in his official capacity as )
Sheriff of Greenwood County,
)
)
Defendants.
)
___________________________________ )
Civil Action No. 1:17-cv-02930-TLW
ORDER
Plaintiff LaKrystal Coats, as personal representative of the estate of her husband, Demetric
Cowan, filed this action pursuant to 42 U.S.C. § 1983 and South Carolina state law alleging
constitutional violations and tort law causes of action arising from Cowan’s arrest and subsequent
detention and death at Greenwood County Detention Center (GCDC). Coats filed this case against
the following City of Greenwood police officers in their individual capacities: Officer Ray Pope,
Sergeant Steven Nichols, Officer Daniel Cardarelli, and Officer Brandon White (collectively,
Arresting Officers). Coats also sues the following GCDC officers in their individual capacities:
Sergeant Sidney Montgomery, Officer Roy Murray, and Officer Pamela Osborne (collectively,
GCDC Officers). In addition, Coats sues Gerald Brooks in his official capacity as City of
1
Greenwood Chief of Police and Tony Davis in his official capacity as Sheriff of Greenwood
County.
Defendants filed motions for summary judgment. ECF Nos. 32, 33, 35. Coats filed a
response in opposition, ECF No. 38, and Defendants replied, ECF Nos. 42, 43, 44. This matter is
now before the Court for review of the Report and Recommendation (Report) filed by United
States Magistrate Judge Shiva V. Hodges, to whom this case was assigned pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.). The Report recommends that
Defendants’ motions be granted. ECF No. 45. Coats filed an Objection to the Report, ECF No. 50,
and the matter is now ripe for disposition.
In conducting this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections . . . . The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court’s review of the Report
thus depends on whether or not objections have been filed, in either case, the Court
is free, after review, to accept, reject, or modify any of the magistrate judge’s
findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
I.
Legal Standards
The record reflects that Cowan swallowed a bag of cocaine at some point during an arrest
arising out of a traffic stop. After arriving at the detention center, Cowan perished as a result of
cocaine toxicity, according to the autopsy report. Coats alleges that Arresting Officers and GCDC
Officers violated Cowan’s substantive due process rights by delaying or failing to provide medical
2
care for Cowan. ECF No. 1 at 6.
To establish a constitutional violation, Coats must show that Defendants exhibited
“deliberate indifference” to Cowan’s “serious medical needs.” Farmer v. Brennan, 511 U.S. 825,
835 (1994). A claim of deliberate medical indifference requires more than a showing of mere
negligence, Estelle v. Gamble, 429 U.S. 97, 105-06 (1976), and “more than ordinary lack of due
care for the prisoner’s interests or safety,” Whitley v. Albers, 475 U.S. 312, 319 (1986).
Specifically, Plaintiff must show that Defendants were “aware of facts from which an inference
could be drawn that a substantial risk of serious harm exists” and that Defendants actually drew
that inference. Farmer, 511 U.S. at 837. “If an officer fails to act in the face of an obvious risk of
which he should have known, but did not, the officer has not violated the Eighth or Fourteenth
Amendments.” Watkins v. City of Battle Creek, 273 F.3d 682, 686 (6th Cir. 2001).
Deliberate indifference involves an objective and a subjective component. The objective
component is met if the medical need is “sufficiently serious.” Farmer, 511 U.S. at 834. A medical
need is sufficiently serious “if it is one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (citations
omitted). Under the subjective component, the plaintiff must show that the officials had “a
sufficiently culpable state of mind,” which is shown if an official “knows of and disregards an
excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Stated another way, the
plaintiff must “allege facts which, if true, would show that the official … subjectively perceived
facts from which to infer substantial risk to the [individual], that he did in fact draw the inference,
and that he then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)
(citing Farmer, 511 U.S. at 837). If the official recklessly disregarded a known risk, a plaintiff
3
need not prove that the official acted purposefully to cause harm or with knowledge that harm
would result. Scozzari v. Miedzianowski, 597 F. App’x 845, 848 (6th Cir. 2015) (citing Farmer,
511 U.S. at 835).
Where “minor maladies” or “non-obvious complaints of a serious need for medical care”
are involved, verifying medical evidence of the detrimental effect of delay is required to establish
the subjective component of deliberate indifference. Blackmore v. Kalamazoo Co., 390 F.3d 890,
898 (6th Cir. 2004). In such cases, the conduct in causing a delay creates the constitutional
infirmity, and the effect of the delay goes to the extent of the injury, not the existence of a serious
medical condition. Blackmore, 390 F.3d at 899. The Fourth Circuit has held that where a deliberate
indifference claim is predicated on a delay in medical care, a constitutional violation will be found
if “‘the delay results in some substantial harm to the patient,’ such as ‘marked’ exacerbation of the
prisoner’s medical condition or ‘frequent complaints of severe pain.’” Formica v. Aylor, 739 F.
App’x 745, 755 (4th Cir. 2018) (quoting Webb v. Hamidullah, 281 F. App’x 159, 166–67 (4th Cir.
2008) and citing Sharpe v. S.C. Dep’t of Corr., 621 F. App’x 732, 734 (4th Cir. 2015)).
In another branch of deliberate indifference claims, a constitutional violation may be
premised solely on the delay in providing medical care where the need for medical attention is
obvious. “[A] constitutional violation arises if the injury in question is so obvious that even a
layperson could easily recognize the necessity for a doctor’s attention, and the resulting need for
treatment was not addressed within a reasonable time frame.” Scozzari, 597 F. App’x at 849 (citing
Blackmore, 390 F.3d at 899–900). In such a case, the plaintiff may rely on the obviousness of a
detainee’s serious medical condition to support an inference of an official’s deliberate indifference
and satisfy the subjective component. Farmer, 511 U.S. at 842 (“Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual
4
ways, including inference from circumstantial evidence…and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was obvious.”); see also
Blackmore, 390 F.3d at 899 (“When prison officials are aware of a prisoner’s obvious and serious
need for medical treatment and delay medical treatment of that condition for non-medical reasons,
their conduct in causing the delay creates the constitutional infirmity. In such cases, the effect of
the delay goes to the extent of the injury, not the existence of a serious medical condition.”)
II.
Coats’ Objections as to the Fourteenth Amendment Claims Arising Out of the
Traffic Stop
The Report recommends summary judgment in favor of Arresting Officers, who did not
seek medical treatment for Cowan, because “[they] did not see [Cowan] ingest cocaine and had no
reason to suspect [Cowan] had handled or come into contact with cocaine.” Coats argues that the
Magistrate Judge erred by “focusing exclusively on cocaine rather than the clear evidence that
[Cowan] had ingested some form of drugs.”
During Cowan’s arrest, the Arresting Officers discovered marijuana, ecstasy pills, a set of
scales, and cash in Cowan’s possession, but no other drugs. Cowan attempted to conceal ecstasy
pills under his car and told Arresting Officers that he was choking. Arresting Officers searched
Cowan’s mouth but found nothing to indicate that he had swallowed any drugs. The record reflects
that Cowan was talking and breathing normally throughout his arrest and continued to behave
normally upon arriving at the detention center. Importantly, it is undisputed that Cowan did not
inform Arresting Officers that he swallowed a bag of drugs at any time. While Cowan eventually
informed officers that he had used drugs earlier in the day, no case law has been presented
establishing that officers must specifically ask a detainee if he swallowed drugs during an arrest
or that officers must seek medical treatment for general use of “some form of drugs.” Given these
facts, deliberate indifference cannot be shown because there is no evidence from which a fact
5
finder could infer that Arresting Officers in fact knew that Cowan had swallowed a bag of cocaine
or that he evidenced a need for medical attention.
Coats also objects to the Report’s reliance on Brown v. Middleton, 362 F. App’x 340 (4th
Cir. 2010). She contends that Brown is not dispositive since the detainee in that case, who also
swallowed cocaine during arrest, “received immediate medical attention.” However, as the
Magistrate Judge observes, the detainee in Brown received medical attention as soon as he fell out
of the shower in the detention center and began seizing, not upon arrest. During arrest, officers
found a bag of cocaine in the detainee’s mouth but there was no evidence that the bag had lost any
of its contents. Prior to arriving at the detention center, the detainee repeatedly denied having
ingested cocaine, declined offers for medical care, and displayed no symptoms associated with
cocaine ingestion. Based on these facts, the Fourth Circuit held that there was no triable issue of
fact as to whether arresting officers knew the detainee needed urgent medical attention. Similarly,
in this case, Arresting Officers did not know that Cowan had swallowed a bag of cocaine based on
his behavior during arrest, so no triable issue of fact exists as to whether they knew that Cowan
needed urgent medical attention. Therefore, this Court agrees with the analysis in the Report and
concludes that summary judgment in favor of Arresting Officers is appropriate.
III.
Coats’ Objections as to the Fourteenth Amendment Claims Arising Out of
Cowan’s Detention at Greenwood County Detention Center
According to the Report, when Cowan was booked at the Greenwood County Detention
Center around 10:07 PM, Cowan informed Sergeant Montgomery that he had consumed small
amounts of marijuana and ecstasy earlier in the day. Sergeant Montgomery testified in his
deposition that Cowan appeared to be under the influence of drugs and alcohol. Cowan’s behavior
was otherwise normal for several hours. As the Report illustrates though, at approximately 3:30
AM, Cowan’s condition began to degrade:
6
Around 3:30 a.m., Inmate told Sergeant Montgomery Decedent had vomited.
Montgomery Aff. at 3. Sergeant Montgomery instructed Officer Murray to check
on Decedent and isolate him in Holding Cell Two. [Murray Dep. 13:8–11 (available
at ECF No. 38-12)]. Officer Murray observed Decedent crawling on the floor of
Holding Cell One, “acting strange” and shaking. Murray Aff. at 3. Officer Murray
directed Decedent to stand up, and Decedent refused. Murray Dep. 13:13–17.
Officer Murray opened the cell door, and Decedent began to crawl out of Holding
Cell One and into Holding Cell Two with a dazed look on his face. [Murray Incident
Rep., ECF No. 38-14 at 2]. Decedent told Murray he was “high” and had been using
drugs all day. [ECF No. 1 at 5]. Sergeant Montgomery overheard Decedent’s
statement. Id. Decedent mumbled and signaled to Officer Murray he would like
some water. Murray Dep. 13:24–14:2. Officer Murray gave Decedent a cup of
water and secured him in Holding Cell Two. [Murray Incident Rep., ECF No. 3814 at 2]. Officer Murray created an observation log and began preparing an incident
report regarding Decedent’s perceived detoxing. [Murray Dep. 15:9–12; Murray
Incident Rep., ECF No. 38-14 at 1 (showing title of incident report as “Inmate
Detoxing”); Observation Log, ECF No. 38-15 at 1]. At 3:45 a.m., Officer Murray
noted on the observation log that Decedent was “laying down.” [ECF No. 38-15 at
1].
Approximately ten minutes later, Officer Murray observed Decedent lying
on the floor and shaking. [Murray Incident Rep., ECF No. 38-14 at 2]. Officer
Murray, unsure if Decedent was pretending to have a seizure, instructed Decedent
to stop shaking. Murray Dep. 21:15–22:8. When Decedent did not reply, Officer
Murray set up a camera in the control room window with a clear view of Decedent
inside Holding Cell Two. Murray Dep. 18:25–19:24. Officer Murray returned to
the control room and continued preparing the incident report while Sergeant
Montgomery monitored Decedent. Murray Dep. 19:25–20:19.
The camera began recording at 3:55 a.m. 2 [Camera Video at 00:01
(available at ECF No. 38-1)]. At 3:56 a.m., Officer Osborne opened Holding Cell
One and escorted Inmate out of the cell to call his wife. [Id. at 00:02; Osborne Dep.
14:23–16:9 (available at ECF No. 38-18)]. Officer Osborne asked Officer Murray
what was wrong with Decedent and Officer Murray told her Decedent was
detoxing. Osborne Dep. 23:1–5. At 3:58 a.m., while Inmate spoke to his wife,
Officer Osborne observed Decedent lying on the floor of Holding Cell Two,
shaking in a way that resembled a seizure. Camera Video at 02:57; Osborne Dep.
21:22–22:25. From 3:55 a.m. until approximately 4:09 a.m., Decedent’s arms lifted
and his body seized and shook for several seconds every minute. Camera Video at
00:12–13:47. Then his arms fell back to the floor and he lay motionless until the
next episode. Id.
At 4:01 a.m., Officer Osborne returned Inmate to Holding Cell One and told Officer
Murray they needed to position Decedent away from the wall so he would not hit
his head. Id. at 05:47; Osborne Dep. 40:20–41:10. Inmate informed Officer
Osborne Decedent had vomited around the toilet in Holding Cell One. Osborne
Dep. 41:22–42:8. Officer Osborne advised Officer Murray Decedent had vomited
and said they needed to re-position him from his back to his side in case he vomited
again to prevent him from choking. Id. 42:13–25.
7
At 4:03 a.m., Officer Osborne and Sergeant Montgomery opened Holding
Cell Two and checked on Decedent. Camera Video at 07:58. At Sergeant
Montgomery’s instruction, Officer Murray pointed the camera at the floor from
4:03 a.m. to 4:04 a.m. Id. at 07:58–08:42. Neither Officer Osborne nor Sergeant
Montgomery entered Holding Cell Two at that time. [SLED Add. to Osborne Rep.,
ECF No. 38-22 at 2 (noting GCDC’s surveillance camera captured Holding Cell
Two’s door and “no one entered the cell at the time the body camera was pointed
down at the floor”)]. Sergeant Montgomery instructed Decedent to “stop faking it.”
Id. at 1. Sergeant Montgomery observed Decedent breathing, moving, and
attempting to speak. Montgomery Dep. 66:4–22, 68:2–6.
From 4:04 a.m. to 4:05 a.m., Officer Osborne cleaned the vomit in Holding
Cell One while Sergeant Montgomery spoke with Inmate, held the Holding Cell
One door open, and watched Decedent. Camera Video at 08:45–09:53.
At 4:07 a.m., Officer Osborne and Sergeant Montgomery entered Holding
Cell Two, moved Decedent away from the wall, and placed Decedent on his side
on a mat. Osborne Dep. 44:9–16; Camera Video at 11:52–13:08. When they rolled
Decedent onto his side, vomit fell from the corner of Decedent’s mouth. Osborne
Dep. 44:17–22. Sergeant Montgomery noted Decedent’s pulse was slow and
instructed Officer Osborne to obtain a cold, wet towel so he could clean Decedent’s
face and try to elicit a response from him. Montgomery Dep. 67:4–9.
Sergeant Montgomery and Officer Osborne continued to tend to Decedent
until 4:12 a.m., when Sergeant Montgomery left Holding Cell Two to notify the
shift lieutenant, who was not in the detention center, of the situation. Camera Video
at 16:30; Osborne Dep. 45:8–12. Officer Osborne remained with Decedent and
continued to check his pulse. Camera Video at 16:53–17:48. At 4:13 a.m., Officer
Osborne indicated she could not find a pulse and did not observe Decedent’s
stomach rising and falling. Id. at 17:48. Officer Murray activated emergency
medical services (“EMS”) at 4:13 a.m. Id. at 18:14. Officer Murray told the EMS
dispatcher the officers believed Decedent had taken drugs before arriving at GCDC
and may be detoxing. Id. Officer Osborne continued to check Decedent’s pulse, pat
his face, and attempt to elicit a response. Id. at 18:14–20:14. At 4:15 a.m., Sergeant
Montgomery called the shift lieutenant. [Murray Incident Rep., ECF No. 38-14 at
3]. At 4:18 a.m., EMS arrived. Id. Decedent’s death certificate lists his time of death
as 4:17 a.m. [Death Certificate, ECF No. 32-6 at 1].
The coroner determined Decedent died from an apparent gran mal seizure
followed by cardiac arrest due to cocaine toxicity. [Autopsy Rep., ECF No. 32-4 at
3–4]. (ECF No. 45, pp. 6-10)
Coats alleges that GCDC Officers unduly delayed Cowan’s access to medical care, stating
that they “were in the immediate vicinity and were aware that [Cowan] was experiencing extreme
physical pain, but took no action to provide or request medical care for [Cowan,] disregarding the
obvious risk to his health.” ECF No. 1 at 6. The Report recommends summary judgment in favor
8
of GCDC Officers because Coats ultimately did not demonstrate a causal connection between their
actions and Cowan’s death.
The undersigned undertook research to find cases that relate to delay by prison officials in
seeking medical care for a prisoner. The Report focuses on one branch of deliberate indifference
claims involving non-obvious, serious needs for medical care, which require verifying medical
evidence of a detrimental effect “resulting from” delay. Strickler v. Waters, 989 F.2d 1375, 1381
(4th Cir. 1993) (emphasis added); see also Formica 739 F. App’x at 758 (deliberate indifference
established where delayed treatment of over one year resulted in exacerbated condition and
prolonged pain); Webb 281 F. App’x at 167 (no deliberate indifference where delay in performing
surgery did not result in harm to inmate or worsened condition); Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005) (triable issue of fact as to deliberate indifference where prisoner continually
reported chest pain over a three-day period and suffered a heart attack resulting in irreversible
damage to her heart as a result of the delay in treatment); Sosebee v. Murphy, 797 F.2d 179, 183
(4th Cir. 1986) (reversal of summary judgment where guards knew that prisoner’s condition had
worsened and was life-threatening but they refused to seek medical care in the final ten hours of
prisoner’s life); Napier v. Madison Cty., Ky., 238 F.3d 739, 743 (6th Cir. 2001) (no deliberate
indifference where plaintiff who suffered from kidney failure and required scheduled dialysis
treatment failed to offer any medical evidence that he suffered a detrimental effect from being kept
from his scheduled dialysis). To this end, the Report discusses the affidavit from Dr. Kim Collins,
a board-certified forensic pathologist, who found that “[m]ost probably to a degree of reasonable
medical certainty even if officers had summoned emergency assistance at or around 3:30
a.m….death was most probably not preventable due to his having ingested cocaine as shown on
the autopsy and by toxicology, which was not known by those on scene.” ECF No. 44-2 at 53. As
9
will be discussed, this Court concludes that Coats presents a cognizable claim for deliberate
indifference based on the obviousness of Cowan’s symptoms. However, this Court also notes that
“most probably” does not meet the level of certainty required to find that no triable issue of fact
exists in determining whether the officer’s conduct was the proximate cause of Cowan’s death.
The undersigned concludes that Coats presents a cognizable claim for deliberate
indifference based on the obviousness of Cowan’s seizure symptoms. As the Supreme Court has
stated, “whether a prison official had the requisite knowledge of a substantial risk is a question of
fact subject to demonstration in the usual ways, including inference from circumstantial
evidence…and a factfinder may conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Farmer 511 U.S. at 843. Accepting, as required, Coats’
version of the facts, Coats alleges facts that show Cowan experienced an obvious need for medical
care, including his vomiting, inability to walk or stand, delirious look on his face, inability to speak,
and seizures. Coats alleges that, due to the obviousness of Cowan’s symptoms, GCDC Officers
should have sought medical care sooner. Further, Cowan asserts they knew policy required them
to do so. Although it would be difficult to know that these were symptoms of cocaine toxicity
specifically, Cowan’s condition presented an issue of fact as to his serious and obvious need for
medical attention.
GCDC Officers argue that they did not know Cowan had swallowed a bag of cocaine and
that they thought he was merely detoxing. Initially this may have been a reasonable conclusion.
However, Cowan’s condition became worse quickly. The GCDC Officers were certainly aware of
his deteriorating condition as Cowan was crawling, he was unable to walk, he was shaking,
vomiting, and had a dazed look on his face. He had what was described as a seizure and was told
at that time by Sergeant Montgomery to “stop faking it.” ECF No. 38-22 at 1. Sergeant
10
Montgomery testified about the Detention Center’s policy for when an inmate is detoxing: “[i]f
he’s detoxing or she’s detoxing, we’ll isolate them, put them in a cell—a medical cell, advise
lieutenant what’s going on, and from there they put a watch on that person.” ECF. 38 at 12. GCDC
Officers did not activate emergency medical services until 4:13 AM, approximately thirty minutes
after placing Cowan in an observation cell, and Sergeant Montgomery contacted his lieutenant at
4:15 AM after EMS was called. Additionally, there is no evidence in the record that any of the
GCDC Officers had medical training. No one attempted to determine whether Cowan was faking
the seizures, nor did officers attempt to administer CPR to Cowan when they lost his pulse. Cowan
did not receive medical treatment until EMS arrived, at which point, the record reflects, he was
already deceased.
In summary, the facts at issue differ from Brown, the case relied upon by the GCDC
Officers and discussed in the Report, in a number of important ways that distinguish this case from
Brown. In Brown, prison officials reacted immediately as soon as the inmate fell out of the shower
and began seizing. Even though officials were unaware that the inmate had swallowed a bag of
cocaine, the inmate’s seizures were clear signs of an urgent medical need and prison officials
summoned EMS immediately. Here, however, approximately forty-three minutes transpired
between the time Cowan began exhibiting serious medical issues (vomiting, delirium, inability to
walk or talk, and seizures) and the time GCDC Officers activated EMS. EMS arrived five (5)
minutes after being notified. The facts give rise to a jury question as to whether the GCDC Officers
addressed Cowan’s symptoms within a reasonable time frame. Therefore, summary judgment in
favor of the GCDC Officers is appropriately denied.
IV.
Coats’ Objections as to Qualified Immunity Claims
Defendants assert that they are entitled to qualified immunity for Coats’ Fourteenth
11
Amendment claims. Under the qualified immunity defense, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
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). The Supreme Court
has repeatedly stated that courts should not “define clearly established law at a high level of
generality.” Mullenix v. Luna, __ U.S. __, 136 S.Ct. 305, 308 (2015). Instead, the “dispositive
question is whether the violative nature of particular conduct is clearly established.” Id. Coats bears
the burden of showing “that the right was clearly established in light of the specific context of the
case, not as a broad general proposition.” Linden v. Piotrowski, 619 F. App’x 495, 619 (6th Cir.
2015).
The question is whether at the time of the incident it was clearly established that the
Fourteenth Amendment forbids prison officials who observe an inmate who is sweating and
breathing heavily, vomiting, incapable of speaking, standing or walking, and having seizures from
delaying approximately forty-three minutes in summoning medical care for that inmate. See, e.g.,
McRaven v. Sanders, 577 F.3d 974, 983 (8th Cir. 2009) (denying qualified immunity to officer
who, after noticing that the inmate was not breathing, failed to give the inmate CPR for seven
minutes as he stood over the inmate in a prison cell); Iko v. Shreve, 535 F.3d 225, 243 (4th Cir.
2018) (denying qualified immunity to officers after inmate was pepper sprayed and collapsed in
their presence and eventually asphyxiated because taking him outside for a few minutes of fresh
air was an insufficient response to his serious medical needs); Estate of Bradich v. City of Chicago,
413 F.3d 688, 691–92 (7th Cir. 2005) (denying qualified immunity to officers who had allegedly
delayed ten minutes in calling for help after discovering that a prisoner had hanged himself); Estate
of Owensby v. City of Cincinatti, 414 F.3d 596, 603 (6th Cir. 2005) (denying qualified immunity
12
to officers who beat a suspect, observed him in significant physical distress, and made no attempt
to summon medical care until six minutes later); Tlamka v. Serrell, 244 F.3d 628, 633–34 (8th Cir.
2001) (denying qualified immunity to officers who delayed ten minutes in providing CPR or any
other form of assistance to an inmate they observed suffering a heart attack). Because Cowan’s
needs were objectively serious and obvious enough that GCDC Officers were subjectively aware
of that seriousness and chose not to seek medical treatment immediately, the GCDC Officers
actions, based on the caselaw set forth, put the officers on notice that his serious condition could
violate Cowan’s Fourteenth Amendment right to adequate medical care. The officers’ assertion of
qualified immunity is denied.
V.
Coats’ Objections as to State Law Claims Against Sheriff and Police Chief
Under the Eleventh Amendment, a federal court has jurisdiction to hear a claim against a state,
a state’s agencies, and state employees acting within their official capacity, only to the extent that
either the state has expressly waived immunity or Congress has successfully abrogated that
immunity. Smith v. Ozmint, 394 F. Supp. 2d 787, 791 (D.S.C. 2005) citing Hans v. Louisiana,
134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). South Carolina has waived its sovereign
immunity to a limited degree through the South Carolina Tort Claims Act, S.C. Code Ann. § 1578-10, et seq. (SCTCA). The SCTCA mandates that the “State, an agency, a political subdivision,
and a governmental entity are all liable for their torts in the same manner and to the same extent
as a private individual under like circumstances, subject to the limitations upon liability and
damages, and exemptions from liability and damages.” S.C. Code Ann. § 15-78-40. Under this
waiver of immunity, the SCTCA creates the “exclusive civil remedy available for any tort
committed by a governmental entity, its employees, or its agents except” for limited exceptions
provided for in the act. S.C. Code Ann. § 15-78-20. The state law claims stated by Plaintiff fall
13
under the SCTCA.
The SCTCA waives immunity in state court for certain tort claims against the state and
state employees; however, the SCTCA expressly reserves the state’s Eleventh Amendment
immunity in federal court. S.C. Code Ann. § 15-78-20(e) (stating “Nothing in this chapter is
construed as a waiver of the state's or political subdivision's immunity from suit in federal court
under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued
in any state court beyond the boundaries of the State of South Carolina”); DeCecco v. Univ. of
S.C., 918 F. Supp. 2d 471, 498 (D.S.C. 2013) (finding that the SCTCA preserves immunity for the
state and state employees in federal court and therefore even if the SCTCA would allow plaintiff’s
gross negligence claim to proceed in state court, the SCTCA would not allow the claims to proceed
in federal court).
Plaintiff alleges state law claims of negligence, gross negligence, loss of filial services 1,
infliction of emotional distress, and conscious pain and suffering against Sheriff and Police Chief
in their official capacities and Arresting Officers and GCDC Officers in their individual capacities.
In her Report, the Magistrate Judge found that the state law claims against Sheriff and
Police Chief, in their official capacities, are barred by the Eleventh Amendment. In her objections,
Plaintiff asserted that the causes of action under the SCTCA, naming Sheriff and Police Chief in
their official capacities, should be construed as against the Greenwood County Sheriff’s Office
and the Greenwood Police Department. Because the Greenwood County Sheriff’s Office and the
Greenwood Police Department were on notice that they were being sued, they retained lawyers,
and they participated in the litigation, the Court accepts the Plaintiff’s position that these claims
should be construed as against the Greenwood County Sheriff’s Office and the Greenwood Police
Plaintiff labels her cause of action “loss of filial services” but the Magistrate Judge correctly construed Plaintiff’s
cause of action as a claim of loss of consortium under S.C. Code Ann. § 15-75-20.
1
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Department.
The Court finds, however, that notwithstanding the waiver of sovereign immunity found
in the SCTCA, the claim against the Greenwood County Sheriff’s Office is barred under the
Eleventh Amendment. The Eleventh Amendment applies to a political subdivision or an arm of
the State and the Greenwood County Sheriff’s Office is considered an arm of the state. See McCall
v. Williams, 52 F. Supp. 2d 611, 623, (D.S.C. 1999) (“[T]he Sheriff’s Department, like the Sheriff,
is an arm of the state and entitled to Eleventh Amendment immunity.”) Therefore, because the
SCTCA expressly reserves Eleventh Amendment immunity in federal court and the Greenwood
County Sheriff’s Office is immune from liability under the Eleventh Amendment, Plaintiff’s state
law claims against the Greenwood County Sheriff’s Office are barred.
With regards to the state claims against the Greenwood Police Department, this Court
declines, after consideration of the relevant factors under 28 U.S.C. § 1367(c)(3), to exercise
supplemental jurisdiction over the remaining state law claims considering the Court’s dismissal of
the federal claims against Arresting Officers. Shanagan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995)
(directing district courts to consider “convenience and fairness to the parties, the existence of any
underlying issues of federal policy, comity, and considerations of judicial economy”).
VI.
Coats’ Objections as to State Law Claims Against Arresting Officers and Officer
Osborne
The Magistrate Judge found that Plaintiff’s state law claims of negligence, gross
negligence, loss of filial services, infliction of emotional distress, and conscious pain and
suffering against the Arresting Officers and Officer Osbourne in their individual capacities
should be dismissed. Plaintiff objects that the Report does not consider the actions of Officer
Montgomery and Officer Murray. The Report states that Plaintiff does not allege state law
claims against GCDC Officers Sergeant Montgomery and Officer Murray, citing Plaintiff’s
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Response to Summary Judgment Motions of All Defendants which states that “the complaint
does not allege state law claims against Sergeant Montgomery and Officer Murray.” ECF No.
38 at 25. While the reliance on Plaintiff’s statement is appropriate by the Magistrate Judge,
the Plaintiff in her objections asserts she does allege state law claims against all Arresting
Officers and GCDC Officers in their individual capacities. Therefore, this Court will consider
the viabilities of those claims.
The SCTCA is the exclusive remedy for injury caused by state employees in the scope
official duty, however it does not grant an employee personal “immunity from suit and
liability if it is proved that the employee’s conduct was not within the scope of his official
duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving
moral turpitude.” S.C. Code Ann. § 15-78-70(b). Plaintiff does not allege Arresting Officers
or GCDC Officers acted outside the scope of their official duties and therefore, the officers
may only be held individually liable for Plaintiff’s state law claims if Plaintiff can show that
their conduct constituted actual fraud, actual malice, intent to harm, or a crime involving
moral turpitude.
As to the negligence and gross negligence claims, the Court agrees with the findings
of the Magistrate Judge that summary judgment is appropriate because the claims lack the
required elements under S.C. Code Ann. § 15-78-70(b). See Smith v. Ozmint, 394 F. Supp. 2d
787, 792 (D.S.C. 2005) (finding negligence claim did not include the element of “intent to
harm,” and thus the claim could not be asserted against state employees in their individual
capacity under the South Carolina Tort Claims Act); Barnes v. Thueme, No. CA 5:13-2349RMG, 2013 WL 5781711, at *1 (D.S.C. Oct. 25, 2013), aff'd, 559 F. App'x 205 (4th Cir.
2014) (finding that Plaintiff’s state tort law claims of negligence and gross negligence,
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amongst other claims, must be brought in state court under the SCTCA because Plaintiff's
state law claims fail to allege an intent to harm or actual malice); Gallmon v. Cooper, No. CV
3:17-59-TLW-PJG, 2018 WL 4957406, at *7 (D.S.C. Apr. 19, 2018), report and
recommendation adopted in part, rejected in part, No. 8:17-CV-0059-TLW, 2018 WL
4403389 (D.S.C. Sept. 17, 2018) (noting that while intent is an element of gross negligence,
the specific element of “intent to harm” or “malicious intent” must be an element of the tort
to apply personal liability on a state employee under the South Carolina Tort Claims Act and
therefore Plaintiff’s claim for gross negligence should be dismissed). Plaintiff objects that
this conclusion overlooks S.C. Code Ann. § 15-78-60(25) which provides:
“The governmental entity is not liable for a loss resulting from responsibility
or duty including but not limited to supervision, protection, control,
confinement, or custody of any student, patient, prisoner, inmate, or client of
any governmental entity, except when the responsibility or duty is exercised
in a grossly negligent manner.”
However, this misconstrues § 15-78-60(25). Section 15-78-60 establishes exceptions to the
general waiver of immunity under the SCTCA. Section 15-78-60(25) establishes that while
the state waives its immunity in some regards, it preserves its immunity and “is not liable for
a loss resulting from responsibility or duty including but not limited to supervision,
protection, control, confinement, or custody of any student, patient, prisoner, inmate, or client
of any governmental entity,” the section goes on to state a qualification to this exception
“when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann.
§ 15-78-60(25). This is a separate question, however, from when an employee of a
governmental entity is immune from suit. Section 15-78-60(25) does not establish that a claim
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of gross negligence is sufficient in a federal action to state a claim against an employee of a
governmental entity. As has been stated, under § 15-78-70, the SCTCA “constitutes the
exclusive remedy for any tort committed by an employee of a governmental entity” and claims
against the employee may only be brought outside the SCTCA when the “employee’s conduct
was not within the scope of his official duties or that it constituted actual fraud, actual malice,
intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-70.
Plaintiff’s state law claim of intentional infliction of emotional distress does require a
showing of actual malice and intent to harm and therefore the SCTCA does not bar state
employees being held individually liable. See Smith v. Ozmint, 394 F. Supp. 2d 787, 792
(D.S.C. 2005) (finding that a claim of intentional infliction of emotional distress does allege
and require a showing of actual malice and intent to harm and therefore the court had
jurisdiction to hear the claims against South Carolina Department of Corrections officers in
their individual capacities). However, as the Magistrate Judge concluded, the evidence does
not support a finding of intentional infliction of emotional distress. To recover for intentional
infliction of emotional distress, a plaintiff must establish that “the conduct was so ‘extreme
and outrageous’ as to exceed ‘all possible bounds of decency’ and must be regarded as
‘atrocious, and utterly intolerable in a civilized community.’” Ford v. Hutson, 276 S.E.2d
776, 778 (S.C. 1981) (quoting Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (Me. 1979)).
The evidence does not support a finding that the conduct at issue was “so extreme and
outrageous,” and therefore, summary judgment is appropriate as to Plaintiff’s claim of
intentional infliction of emotional distress.
Plaintiff’s claim of loss of consortium under S.C. Code Ann. § 15-75-20 does not show
conduct that constitutes actual fraud, actual malice, intent to harm, or a crime involving moral
18
turpitude under S.C. Code Ann. § 15-78-70(b). Therefore, the officers may not be held
individually liable under the SCTCA.
As to Plaintiff’s claim of conscious pain and suffering, the SCTCA does not preclude a
survival action for conscious pain and suffering, see Boyle v. U.S., 948 F. Supp. 2d 577, 580
(D.S.C. 2012). However, the Magistrate Judge recommends summary judgment concluding
that the evidence does not support Plaintiff’s allegation that “Defendants directed a course of
extreme and outrageous conduct with the intention of causing, or reckless disregard of the
probability of causing, conscious pain and suffering to [Decedent],” ECF No. 1 at 10. This
Court accepts the analysis in the Report. Therefore, summary judgment is granted as to
Plaintiff’s claim of conscious pain and suffering.
CONCLUSION
The Court has carefully reviewed the Report and the Objections thereto in accordance with
the relevant standard. Additionally, the Court has reviewed and considered significant caselaw
relevant to the issues raised in the Report and the Objections. After review, the Report, ECF No.
45, is ACCEPTED IN PART AND DENIED IN PART. As to the Arresting Officers, their motion
for summary judgment is GRANTED. As to Chief of Police of the City of Greenwood Gerald
Brooks and Sheriff of Greenwood County Tony Davis, their motions for summary judgment are
GRANTED. As to the GCDC Officers, their motions for summary judgment are GRANTED as to
the state law claims and DENIED as to the Fourteenth Amendment claim.
With the dispositive motions decided, this case is ready for trial. Considering the denial of
summary judgment, the parties are directed to attempt to mediate this case within forty-five (45)
days. If it is not resolved, counsel shall appear for a pretrial conference on January 14, 2020, at
9:30 a.m., at which time the Court will set the date for jury selection and trial.
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IT IS SO ORDERED.
s/ Terry L. Wooten
Terry L. Wooten
Senior United States District Judge
October 30, 2019
Columbia, South Carolina
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