Blakely v. Kershaw County Sheriff's Office et al

Filing 89

ORDER supplementing 86 Minute Entry, granting in part and denying defendants' 77 and 78 motions for summary judgment and notifying parties the case will proceed to trial with Tyrell Coleman and Gregg Lowery as defen dants on the § 1983 excessive force claims and the South Carolina Department of Natural Resources the Kershaw County Sheriff's as defendants on the negligence claim. Signed by Honorable Joseph F Anderson, Jr on 08/13/2012. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Deloris Blakely, as Personal
Representative of Lori Jean Ellis
Plaintiff,
vs.
Kershaw County Sherfiff’s Office;
Steven D. McCaskill in his capacity as
Sheriff of Kershaw County; Tyrell
Coleman; William Sowell; South
Carolina Department of Natural
Resources; John E. Frampton, in his
capacity as the Director of Natural
Resources; and Gregg Lowery,
Defendants.

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C/A No.: 3:10-cv-707-JFA

ORDER

This matter comes before the court upon the defendants’ motions for summary
judgment (ECF Nos. 77 & 78). The parties have fully briefed the matter and the court
heard oral argument. Following oral argument, the court denied the motions. The court
issues this written order to supplement that ruling. As set forth below, the court denies
the defendants’ motions for summary judgment with the exception of the grounds
consented to by the plaintiff.
I.

FACTUAL AND PROCEDURAL HISTORY
This case arises from a fatal shooting incident involving two Kershaw County

Sheriff’s deputies and a South Carolina Department of Natural Resources (SCDNR)
agent. On April 21, 2008, Deputy William Sowell and Agent Gregg Lowery went to Lori
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Jean Ellis’s residence, a mobile home located at 1216 Dogwood Lane in Kershaw
County. The officers were attempting to serve outstanding warrants stemming from four
misdemeanors, and planned to take Ms. Ellis into custody to serve jail time. Lowery and
Sowell arrived shortly after 10:00 p.m. Though the officers allege they saw Ms. Ellis
open the door and yell at the dog, she refused to come out of the residence. Due to the
presence of a pit bull within the residence’s fence and Ms. Ellis’s refusal to leave the
residence, Sowell contacted his supervisor, Kershaw County Corporal Tyrrell Coleman,
who also came to the residence. Believing that Ellis was fleeing arrest, Coleman, Sowell,
and Lowery (the officers) formulated a plan to enter the house without endangering
themselves due to the dog.
The officers entered the yard in Lowery’s DNR truck, with the two officers in the
bed of the truck. Sowell used his pepper spray on the dog and it retreated under an out
building. Once near the door, the officers attempted to open the door by picking the lock.
The officers allege they continued to announce themselves and their purpose throughout
this procedure. The officers eventually opened the door, and when the door opened, the
officers allege that Ms. Ellis was moving toward the door and raising a long gun. The
officers also allege they heard a pop or saw a poof or flash. Upon seeing Ellis, Lowery
moved to his left to gain cover, and fired two shots while making that movement.
Coleman moved toward the truck—which was behind him—and fired a single shot.
Lowery fired first. Sowell did not fire due to the position of the other officers, and he
jumped from the back of the truck to gain cover. The officers then called for back-up.

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When SLED arrived, they entered the house, and discovered Ms. Ellis deceased,
lying in her bathroom with her feet in the hallway. The autopsy and ballistic evidence
indicates that Ms. Ellis died from the third shot—fired by Coleman—which struck her in
the back of the head. Lowery’s first shot missed Ellis, but his second shot grazed her
shoulder. Ms. Ellis’s blood alcohol content was between 0.269-0.282%. The police
found a pellet gun upon entering the house.
The parties have submitted various photos and reconstructions which indicate the
path of the bullets as they travelled through the mobile home.

The parties dispute

whether or not the forensic evidence supports the officers’ version of the events outlined
above. Defendants now ask this court to grant summary judgment in their favor on all
the claims asserted by Plaintiff.
II.

LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary

judgment shall be granted when a moving party has shown that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The court must determine whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). When
evaluating a motion under Rule 56, the Court must construe all “facts and inferences to
be drawn from the facts . . . in the light most favorable to the non-moving party,” Miller
v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (internal quotations omitted), and

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summary judgment should be granted in those cases where it is perfectly clear that there
remains no genuine dispute as to material fact and inquiry into the facts is unnecessary to
clarify the application of the law. McKinney v. Bd. of Trustees of Maryland Community
College, 955 F.2d 924, 928 (4th Cir. 1992). In deciding a motion for summary judgment,
“the judge’s function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
249.
III.

DISCUSSION
a. Excessive Use of Force
Plaintiff claims that the officers used excessive force against her that violated the

Fourth Amendment’s protection against “unreasonable seizures.” Graham v. Connor,
490 U.S. 386, 394 (1989). Any claim that law enforcement used excessive force during
an arrest or other seizure is examined under the Fourth Amendment’s “objective
reasonableness” standard. Id. at 388. In order to establish a claim for excessive force, a
plaintiff must show: “(1) a significant injury; (2) that resulted from the use of clearly
excessive force; and (3) that the force used was objectively reasonable.” Id. at 390. The
plaintiff has the burden of showing that the use of deadly force was unreasonable.
Tennessee v. Garner, 471 U.S. 1, 12 (1985).
In making this inquiry the court must look to “the facts from the perspective of a
reasonable officer on the scene,’ and avoid judging the officer’s conduct with the ‘20/20
vision of hindsight,’ recognizing that ‘police officers are often forced to make split-

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second judgments – in circumstances that are tense, uncertain, and rapidly evolving.”
Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) (quoting Graham, 490 U.S. at
396–97). The central inquiry is “whether a reasonable officer in the same circumstances
would have concluded that a threat existed justifying the particular use of force.” Id.
(citing Graham, 490 U.S. at 396–97). While “[t]he intrusiveness of a seizure by means
of deadly force is unmatched,” deadly force may be used “where the officer has probable
cause to believe that the suspect poses a threat of serious physical harm, either to the
officer or to others.” Carr v. Deeds, 453 F.3d 593, 600 (4th Cir. 2006) (quoting Garner,
471 U.S. at 9).
In fatal excessive force cases such as the instant case, the court is often confronted
with only the officers’ testimony and the forensic evidence. In such circumstances, “a
court must undertake a fairly critical assessment of the forensic evidence, the officer's
original reports or statements and the opinions of experts to decide whether the officer's
testimony could reasonably be rejected at a trial.” Ingle v. Yelton, 439 F.3d 191, 195 (4th
Cir. 2006) (citing Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994)). When there is
contrary evidence, a “court may not simply accept what may be a self-serving account by
the police officer.” Id. (citing Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)).
Viewing the facts, evidence and inferences in the light most favorable to the
plaintiff as it must, the court is constrained to find at this stage in the case that there are
genuine issues of material fact that prevent the court from granting judgment as a matter
of law. The court finds that on the record before it a properly charged jury could

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reasonably reject the officers’ testimony. Accordingly, summary judgment on the § 1983
excessive force claims against Agent Gregg Lowery and Deputy Tyrell Coleman should
be denied.
The plaintiff indicated at oral argument that it did not contest dismissal of the
§ 1983 claims against the other defendants. Accordingly, judgment as a matter of law is
hereby granted in favor of William Sowell, Stephen McCaskill in his capacity as Sheriff
of Kershaw County, the Kershaw County Sheriff’s Office, John E. Frampton in his
capacity as director of SCDNR, and SCDNR on the § 1983 excessive force claims.
i. Qualified Immunity
Qualified immunity serves to “provide[] ample protection to all [public officials]
but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986). In Harlow v. Fitzgerald, the Supreme Court of the United
States set forth objective standards for a qualified immunity defense, holding that
“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.” 457
U.S. 800, 818 (1982). The Fourth Circuit Court of Appeals has held that an official’s
entitlement to qualified immunity is based on an “objective reasonableness” standard,
explaining that “the very idea of reasonableness requires that courts accord interpretive
latitude to official judgments.” Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir.
1991). In assessing whether an official is entitled to qualified immunity, courts go

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through a two-pronged analysis—under the first prong, courts determine “whether a
constitutional right would have been violated on the facts alleged,” and under the second
prong, courts decide whether that constitutional right was clearly established. Saucier v.
Katz, 533 U.S. 194, 200 (2001).1
In order for a right to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that law.” Katz, 533 U.S. at 202. “Officials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d
295, 298 (4th Cir. 1992).
The court finds that the disputed issues of material fact similarly prevent the court
from granting judgment as a matter of law on the qualified immunity grounds as to
defendants Coleman and Lowery. See Witt v. West Virginia State Police, Troop 2, 633
F.3d 272, 275 (4th Cir. 2011). The disputed factual issues prevent this court from
making a determination of whether the officers violated Ellis’s Fourth Amendment rights
and, if so, whether they should have known their conduct was impermissible.
b. State Law Claim
The complaint in this case also includes a state law claim for negligence. Under
SC law, the proper defendants for state law claims of negligence would be the SCDNR
and the Kershaw County Sheriff’s office. See S.C. Code Ann § 15-78-70 (providing

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Since its decision in Saucier, the Supreme Court has held that the two-step procedure need not be followed rigidly,
noting that “[b]ecause the two-step Saucier procedure is often, but not always, advantageous, the judges of the
district courts and the courts of appeals are in the best position to determine the order of decisionmaking that will
best facilitate the fair and efficient disposition of each case.” Pearson v. Callahan, 555 U.S. 223, 242 (2009).

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immunity to individual defendants). Plaintiff indicated that she did not contest summary
judgment against the individual defendants, and accordingly, the court hereby grants
judgment as a matter of law in favor of Steven D. McCaskill in his capacity as Sheriff of
Kershaw County, Tyrell Coleman, William Sowell, John E. Frampton in his capacity as
the Director of Natural Resources, and Gregg Lowery as to the state law negligence
claims. Due to the factual disputes as discussed above, the court denies the motion as to
the remaining defendants, and the South Carolina Department of Natural Resources and
the Kershaw County Sheriff’s office remain in the case as defendants on the negligence
claims.
IV.

CONCLUSION
In summary, the case will proceed to trial with Tyrell Coleman and Gregg Lowery

as defendants on the § 1983 excessive force claims and the South Carolina Department of
Natural Resources the Kershaw County Sheriff’s as defendants on the negligence claim.

IT IS SO ORDERED.
August 13, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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