Heyward v. Tyner et al

Filing 28

ORDER granting in part and denying in part 5 Motion to Dismiss; adopting Report and Recommendations re 17 Report and Recommendation. Signed by Honorable David C Norton on March 20, 2018.(cban, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Bryant Heyward,

)
)
Plaintiff,
)
)
vs.
)
)
Keith Tyner, Richard Powell, Eric Watson,
)
Mitch Lucas, and Al Cannon, Individually and )
in their Official Capacities; Charleston County )
Sheriff’s Office; Charleston County
)
Consolidated 911 Center,
)
)
Defendants.
)
_______________________________________)

No. 2:17-01545-DCN
ORDER

This matter is before the court on Magistrate Judge Mary Gordon Baker’s
Report and Recommendation (“R&R”), ECF No. 17, that the court grant in part, deny
in part, and find to be moot in part defendants’ Keith Tyner (“Tyner”), Richard
Powell (“Powell”), Eric Watson (“Watson”), Mitch Lucas (“Lucas”), Al Cannon
(“Cannon”), and Charleston County Sherriff’s Office’s (“CCSO”) (collectively,
“moving defendants”) partial motion to dismiss, ECF No. 5. For the reasons set forth
below, the court fully adopts the R&R.
I. BACKGROUND
Because the R&R ably recites the relevant facts of the case, the court
summarizes the key portions of the complaint that relate to this motion to dismiss.
Bryant Heyward (“Heyward”), an African-American male, alleges that armed men
burglarized his home in Hollywood, South Carolina on May 5, 2015. ECF No. 1, ¶¶
14–15. After the armed men fired gun shots into Heyward’s home, he retrieved his
brother’s gun and returned fire. Id. Heyward claims that he called 911 and told the

1

operator about the incident, informing the operator that he was hiding in his laundry
room in the rear of the home and was armed with a weapon. Id. at ¶¶ 16, 18–19.
Tyner and Powell responded to the 911 call and arrived at Heyward’s home.
Id. at ¶ 23. They entered through the partially open back door of Heyward’s
residence, where Heyward was hiding in his laundry room. Id. at ¶ 24. Heyward
claims that within one second of first seeing Heyward, Tyner shot him while
simultaneously yelling “show me your hands.” Id. Heyward was shot in the neck
and fell to the ground. Id. After shooting Heyward, Tyner and Powell allegedly
dragged Heyward out of the laundry room, causing further damage to his spinal cord
and lacerations to his back requiring stitches. Id. at ¶ 26. They later realized that
Heyward was not an intruder, but rather the homeowner who had called 911. Id. at ¶
27. Heyward was placed into an ambulance with a CCSO detective who recorded an
interview with him while paramedics rendered him care. Id. at ¶¶ 28–29. As a result
of the gun shot, Heyward is now a quadriplegic. Id. at ¶ 14.
One month prior to the incident, Walter Scott, an African-American male, was
shot and killed by police officer Michael Slager in North Charleston. Id. at ¶ 30.
Heyward alleges that the increasingly high tensions between law enforcement and the
North Charleston community this incident led moving defendants to attempt to quell
the unrest that would result from Heyward’s shooting. Id. Heyward claims that
moving defendants sought to change the narrative of the events surrounding the
shooting by portraying Heyward as a threat who disregarded the police officer’s
instructions, did not drop his weapon when commanded, and was accidentally shot.
Id. at ¶ 31. Heyward further alleges that, in an attempt to support this narrative,

2

moving defendants intentionally filed and released various false reports both
internally and to the public, and purposefully made false statements regarding the
events surrounding the shooting. Id. at ¶¶ 34, 36, 38–39, 41.
Heyward filed this suit on May 4, 2017 in the Charleston County Court of
Common Pleas, and defendants removed it on June 13, 2017. Heyward brings the
following causes of action: (1) gross negligence against Rivers, individually and in
her official capacity; (2) gross negligence against Charleston County Consolidated
911 Center (“CCCC”) and Lake, individually and in his official capacity; (3) gross
negligence against CCSO and Lucas and Cannon, individually and in their official
capacities; (4) negligent hiring, supervision, retention against CCSO and CCCC; (5)
battery against Tyner and Powell, individually and in their official capacities; (6)
assault against Tyner, individually and in his official capacity; (7) 42 U.S.C. § 1983
claim for violation of Heyward’s civil rights under the Fourth and Eighth
Amendments of the United States Constitution by Tyner and Powell, individually and
in their official capacities; (8) 42 U.S.C. § 1983 claim for violation of Heyward’s
civil rights under the Second Amendment of the United States Constitution by Tyner
and Powell, individually and in their official capacities; (9) 42 U.S.C. § 1985 claim
for civil conspiracy as to CCSO and Tyner, Powell, Watson, Lucas, and Cannon,
individually and in their official capacities. Id. ¶¶ 46–107.
On July 3, 2017, moving defendants filed a partial motion to dismiss, claiming
that: Cannon and Lucas are entitled to dismissal from Heyward’s gross negligence
claim; CCSO and Tyner, Powell, Watson, Lucas, and Cannon, are entitled to have the
§ 1983 claims brought against them in their official capacities dismissed, based on

3

Eleventh Amendment immunity; and Heyward’s § 1983 Second and Eighth
Amendment claims, as well as his § 1985 civil conspiracy claim, should be dismissed
for failure to state a claim upon which relief may be granted. ECF No. 5 at 1. After
full briefing on the motion,1 Judge Baker issued an R&R on November 29, 2017,
recommending that the court grant in part, deny in part, and find to be moot in part
moving defendants’ motion to dismiss. Judge Baker concluded that: (1) moving
defendants are immune from any § 1983 claims brought against them in their official
capacities;2 (2) Heyward should not obtain punitive damages against moving
defendants for claims brought against them in their official capacities under § 1983;
(3) the § 1983 Second Amendment claim against Tyner and Powell should be
dismissed for failure to state a claim; and (4) moving defendants’ motion to dismiss
the conspiracy claim should be denied. Moving defendants filed their objections to
the R&R on December 13, 2017, and Heyward filed his reply on January 26, 2018.
The motion has been fully briefed and is now ripe for the court’s review.

1

In his response, Heyward agreed to dismiss his gross negligence claim
against Cannon and Lucas, part of hist third cause of action. ECF No. 9 at 3. He also
agreed to dismiss his Eighth Amendment claims against Tyner and Powell in the
seventh cause of action. Id. at 9. Heyward further stated that he does not allege any
liability based on respondeat superior in his federal causes of action. Id. at 13. Thus
the R&R addressed only the remaining issues raised by the motion to dismiss.
2
The court adopts the R&R in full, finding that the § 1983 claims brought
against moving defendants in their official capacities should be dismissed. However,
the motion to dismiss says nothing about dismissing these claims against any
defendants in their individual capacities. For the sake of clarity, the court specifies
that Heyward’s claims against the defendants in their individual capacities still stand,
excluding those claims that the court has dismissed on other grounds.  
4

II. STANDARD
A.

De Novo Review

This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
636(b)(1). The court may adopt the portions of the R&R to which the petitioner did
not object, as a party’s failure to object is accepted as agreement with the conclusions
of the magistrate judge. Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and it is this
court’s responsibility to make a final determination. Mathews v. Weber, 423 U.S.
261, 270–71 (1976).
B.

Motion to Dismiss

A Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6)
. . . does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”). To be legally sufficient, a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears
certain that the plaintiff can prove no set of facts that would support his claim and
would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). When considering a Rule 12(b)(6) motion, the court should accept all well-

5

pleaded allegations as true and should view the complaint in a light most favorable to
the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs.,
Inc., 7 F.3d at 1134. “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
III. DISCUSSION
Heyward has filed no objections to the R&R. Moving defendants object only
to the R&R’s recommendation that this court deny their motion to dismiss Heyward’s
ninth cause of action for 42 U.S.C. § 1985 civil conspiracy. The court has reviewed
the portions of the R&R to which no objections have been filed and adopts those
portions. The court denies moving defendants’ objection and adopts the R&R in full.
A.

Civil Conspiracy Claim Factors
Under 42 U.S.C. § 1985(3), a plaintiff may bring a civil conspiracy claim

alleging a civil rights violation. A successful § 1985 claim for conspiracy to deny a
citizen equal protection of the law requires proving:
(1) a conspiracy of two or more persons, (2) who are motivated by a
specific class-based, invidiously discriminatory animus to (3) deprive
the plaintiff of the equal enjoyment of rights secured by the law to all,
(4) and which results in injury to the plaintiff as (5) a consequence of an
overt act committed by the defendants in connection with the
conspiracy.
Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995). A claimant must also show an
agreement or a “meeting of the minds” by defendants to violate the claimant’s
6

constitutional rights. Id.; see also Lenard v. Argento, 699 F.2d 874, 882–83 (7th Cir.
1983), cert. denied, 464 U.S. 815 (1983) (“A civil conspiracy is a combination of two
or more persons acting in concert to commit an unlawful act, or to commit a lawful
act by unlawful means, the principal element of which is an agreement between the
parties to inflict a wrong against or injury upon another . . . .”) (internal quotation
marks omitted). Suits alleging a conspiracy under § 1985 must plead specific facts in
a nonconclusory fashion to survive a motion to dismiss. Gooden v. Howard, 954 F.2d
960, 969–70 (4th Cir. 1992).
Heyward has alleged sufficient facts to survive a motion to dismiss with
respect to his § 1985 claim. Moving defendants have conceded that Heyward
satisfied the first element, a conspiracy involving two or more persons, and the third
element, the deprivation of the right to equal protection. ECF No. 5-1 at 10
(“Plaintiff has pled a conspiracy of two or more persons that deprived him of equal
protection.”). The court finds that Heyward has also satisfied the remaining elements
required to survive moving defendants’ motion to dismiss. Regarding the second
element—specific class-based, invidiously discriminatory animus—Heyward has
sufficiently alleged enough facts from which a jury could determine that moving
defendants’ actions were motivated by some discriminatory animus. Specifically,
Heyward claims that following the shooting of Walter Scott, an unarmed AfricanAmerican man, by Michael Slager, a while police officer, a month prior to this
alleged incident, the tension between law enforcement and the North Charleston
community was rising. Heyward has alleged that moving defendants were concerned
about the public perception of the police officers in the community after another

7

African-American male was shot by the police, and that this concern about further
public backlash against law enforcement led moving defendants to make it appear as
though they rightly perceived Heyward as a threat during the encounter. Heyward
also claims that the officers involved filed false police reports and purposefully made
various false statements to the public about the incident to further this false narrative.
Considering the fourth factor—injury to the plaintiff—the court finds that
Heyward has sufficiently alleged that he suffered injuries caused by moving
defendants’ conspiracy. Heyward claims that after Tyner entered through the back
door and shot him, Heyward informed Tyner and Powell that the residence belonged
to him and that they had the wrong man. Id. ¶ 24. Heyward alleges that Tyner and
Powell then hung up Heyward’s phone and, rather than providing aid to him where he
lay or waiting for EMS to arrive, dragged him out of the laundry room, further
damaging his spinal cord and causing severe lacerations to his back. Id. ¶ 26. It is
reasonable for the court to infer that Tyner and Powell moved Heyward’s body out of
the laundry room to support the narrative that they and CCSO would later announce
to the public—that Tyner and Powell were “confronted by an armed subject exiting or
standing at the back door of the residence.” Id. ¶ 36. It is plausible that the
lacerations to his back and the further damage to his spinal cord were caused by
Tyner and Powell’s conspiracy to support this narrative. Tyner and Powell then
allegedly made false statements about the event, claiming that when they arrived at
Heyward’s home the back door swung open and Heyward exited the back door
pointing a handgun at them, and that only after Tyner commanded Heyward to drop
the gun did Tyner shoot Heyward to “suppress the threat.” Id. ¶¶ 38–40. Heyward

8

claims that Tyner and Powell reported that Heyward went back inside and closed the
back door after he was shot. Id. Watson, Lucas, and Cannon allegedly joined this
conspiracy when they made several allegedly false statements about the incident to
the public, in an effort to support Powell and Tyner’s false reports. Id. ¶¶ 37–41.
Heyward claims that the moving defendants’ actions following the shooting caused
him irreparable mental and emotional harm, in addition to the physical harm caused
by Tyner and Powell’s actions. Id. at ¶ 42. Finally, Tyner and Powell’s alleged
actions following the shooting and the false statements made by Watson, Lucas,
Cannon, and the CCSO constitute “overt acts” in satisfactions of the fifth factor. 
Additionally, Heyward has alleged sufficient facts from which a jury could
conclude that there was a “meeting of the minds” among moving defendants to
conspire to violate Heyward’s constitutional right to equal protection under the law.
Heyward alleges that after wrongly shooting him, Tyner and Powell conspired with
Watson, Lucas, Cannon, and CCSO to “purposefully make misleading and inaccurate
statements to the public regarding the true nature of” the shooting, largely because of
Heyward’s race and their fear of the public backlash surrounding another shooting of
an African-American man by a white police officer in Charleston. ECF No. 1-1 at ¶¶
32–35 (“Specifically, Defendant Watson intentionally and falsely stated that . . .
Plaintiff ‘confronted’ the deputies . . . .”). Heyward further claims that Watson also
falsely stated on multiple occasions that Heyward disobeyed Tyner and Powell’s
order to drop his weapon, while audio from the officers’ body microphones
demonstrates that they in fact never ordered him to drop his weapon. Id. ¶ 35.
Further, Heyward’s complaint alleges that Tyner made false statements in CCSO

9

reports about the incident—that Heyward exited the back door pointing a handgun at
Tyner and Power, which constituted adequate provocation for Tyner to fire at
Heyward. Id. ¶ 40. Heyward’s allegations about the consistently false and misleading
actions by moving defendants—from filing inaccurate and self-serving police reports
to making similar public statements promoting a false narrative of the incident—
provide a sufficient basis from which a jury could determine that there was a
“meeting of the minds” among moving defendants to violate Heyward’s right to equal
protection under the laws.
“[I]n light of the lenient pleading standard [under Rule 12(b)(6)],” Johnson v.
City of Fayetteville, 91 F. Supp. 3d 775, 796 (E.D.N.C. 2015), Heyward’s
allegations are sufficient to survive a Rule 12(b)(6) motion as to the civil conspiracy
claim under § 1985.
B.

Intracorporate Conspiracy Doctrine
Moving defendants have raised the intracorporate conspiracy doctrine as a

defense to Heyward’s conspiracy claim. This court finds that the defense does not
apply in the current case.
Under the intracorporate conspiracy doctrine, “an agreement between or
among agents of the same legal entity, when the agents act in their official capacities,
is not an unlawful conspiracy.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017); see
Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 352 (4th Cir. 2013) (“The
intracorporate conspiracy doctrine recognizes that a corporation cannot conspire with
its agents because the agents’ acts are the corporation’s own.”), Buschi v. Kirven, 775
F.2d 1240, 1251 (4th Cir. 1985) (finding that the doctrine can apply to civil rights

10

claims under §§ 1983 and 1985(3)). The Fourth Circuit has adopted an exception to
this doctrine “where the plaintiff has alleged that the corporate employees were
dominated by personal motives or where their actions exceeded the bounds of their
authority.” Buschi, 775 F.2d at 1252; see Greenville Pub. Co. v. Daily Reflector,
Inc., 496 F.2d 391, 399 (4th Cir. 1974) (“We agree with the general rule [that a
corporation cannot be guilty of conspiring with its officers or agents] but think an
exception may be justified when the officer has an independent personal stake in
achieving the corporation’s illegal objective.”), Liverett v. Island Breeze Int’l, Inc.,
2012 WL 3264563, at *1 (D.S.C. Aug. 9, 2012) (dismissing plaintiff’s civil
conspiracy cause of action because plaintiff “failed to allege facts that [defendants]
acted outside of their normal corporate duties or had any independent stake in
achieving the objective of the alleged conspiracy”).
In Greenville Pub. Co., the Fourth Circuit overturned a district court’s
granting of summary judgment to the defendants based on the intracorporate
conspiracy doctrine. The plaintiff in this antitrust suit alleged that local publisher The
Daily Reflector, through its president David Whichard, conspired with the
corporation and other publishing companies to set low publishing prices in violation
of the Sherman Act. Greenville Pub. Co., 496 F.2d at 399. The district court applied
the intracoprorate conspiracy doctrine to find that the defendants could not be guilty
of conspiracy. Id. The Fourth Circuit overturned this holding based on facts before
the court from which “it [was] reasonable to infer that Whichard could benefit
personally from the elimination of” the competing publishing company. Id. at 400.

11

Here, Heyward has alleged sufficient facts from which the court may
reasonably infer that the individually named moving defendants could benefit
personally from intentionally filing false reports and making false statements to the
public. ECF No. 1 ¶¶ 34, 36, 38–39, 41. From the facts in front of the court, the
court finds it plausible that Tyner and Powell could have had an incentive to claim
that Heyward failed to follow their orders to drop his weapon and that he charged at
them with a gun pointed at them before Tyner shot him. If Tyner and Power could
convince their superiors and the public that reasonably perceived Heyward as a threat
based on these actions, they could more easily argue that Tyner acted appropriately in
shooting him. If Watson, Lucas, and Cannon knew that the incident did not in fact
occur this way yet made the false public statements, it is reasonable to infer that they
could benefit from making those false statements by protecting one of their fellow
law enforcement officers and avoiding further scrutiny on themselves and police
officers in the wake of the rising tensions alleged by Heyward. Additionally, filing
false reports and making false public statements would clearly exceed the bounds of
moving defendants’ authority as officers of CCSO, another reason this case falls
under the doctrine’s exception.
While this circuit does not appear to have addressed the intracorporate
conspiracy doctrine in a case with unique facts such as this, the District Court for the
District of Columbia has analyzed a similar factual scenario. In Blakeney v.
O’Donnell, 117 F. Supp. 3d 6, 16 (D.D.C. 2015), the court carved out another
exception to the intracorporate conspiracy doctrine. Blakeney involved police
officers assaulting the plaintiff and subsequently filing false police reports and

12

making false statements about their actions. Id. The Blakeney court concluded the
intracorporate conspiracy defense did not apply where the underlying alleged scheme
involved conduct that was outside the scope of employment and arguably criminal.
Id. This court finds Blakeney instructive and applies its reasoning here. Heyward
sufficiently alleges that Powell and Tyner purposefully filed false police reports
regarding the shooting in order to make Heyward appear as if he were a threat and
that the other moving defendants made false statements to substantiate this narrative.
Id. at ¶¶ 38–39, 41. Therefore, the court declines to apply the intracorporate
conspiracy doctrine and refrains from dismissing Heyward’s conspiracy claim.
IV. CONCLUSION
For the foregoing reasons, the court fully ADOPTS the R&R.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 20, 2018
Charleston, South Carolina

13