Cox v. Duke Energy Inc et al

Filing 170

OPINION AND ORDER granting 135 Motion for Summary Judgment; granting 141 Motion for Summary Judgment Signed by Honorable Bruce Howe Hendricks on 3/31/2016.(prou, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

William
B.
Cox,
Personal ) Civil Action No.: 4:13-cv-01456-BHH
Representative for the Estate of )
Robin C. Flemming,
)
)
Plaintiff, )
Opinion and Order
vs.
)
)
Duke Energy, Inc., Darlington County )
Sheriff’s Office, Darlington County )
Sheriff J.W. Byrd, Gary Streett, Joyce )
C. Everett, and William “Randy” )
Gideon,
)
)
Defendants. )
______________________________ )
This matter is before the Court on the motion of the Defendants Duke Energy,
Inc.,1 and William “Randy” Gideon (collectively the “Duke Defendants”) for summary
judgment (ECF No. 135) and on the motion of Defendants JW Byrd, Joyce C. Everett,
Gary Streett, and the Darlington County Sheriff’s Office (collectively the “Darlington
Defendants”) for summary judgment (ECF No. 141). For the reasons set forth below,
the Court grants the motions for summary judgment.
BACKGROUND
The Plaintiff in this case is William B. Cox, who is acting as the personal
representative of the Estate of Robin C. Fleming. On October 10, 2013, Plaintiff was
substituted for Mr. Fleming, who sadly passed away from cancer on July 3, 2013. (See

1

Defendants maintain that this party is more properly identified as Duke Energy Progress, Inc., and
Plaintiff has not contested the correction. The Court will refer to this entity as “Duke.”

1

ECF Nos. 29 & 31.) This case arises out of the July 26, 2012 arrest of Mr. Fleming, a
then 70 year-old retired aeronautical engineer and commercial glider pilot, by officers of
the Darlington County Sherriff’s Office. Mr. Fleming was ordered to land at the Hartsville
Airport and arrested after he flew his glider over a nuclear power facility and circled in a
nearby area.
The H.B. Robinson nuclear power plant (the “Robinson Plant”) is a nuclear facility
located in Hartsville, S.C., near Lake Robinson. The Robinson Plant is operated by
Duke Energy Progress, Inc., a regulated public utility that generates, transmits,
distributes, and sells electricity in North and South Carolina. (Am. Answer ¶ 2, ECF No.
124.) Nuclear facilities, like the Robinson Plant, are licensed by the Nuclear Regulatory
Commission (NRC), which comprehensively regulates their security. (See id. at ¶ 26; 10
C.F.R. § 73.55.) The Duke Defendants submitted documents, including several
submitted under seal, showing that the agency monitors the security of the Robinson
Plant and provides guidance addressing a range of potential threats, including those
related to aviation. (See, e.g., ECF No. 167 (sealed documents filed in support of Duke
Defendants’ motion for summary judgment).)
Mr. Fleming’s July 26, 2012 flight originated at “Bermuda High Soaring,” a
soaring airfield and flight training facility located in Lancaster County, near Jefferson,
South Carolina. (Fleming Dep., ECF No. 135-5 at 25:1-4.2) Mr. Fleming intended to fly
from Bermuda High Soaring to Asheboro, North Carolina, then to Dillon, South Carolina,
then to Winnsboro South Carolina, and then back to Bermuda High. (See ECF No. 135                                                            
2

Because the parties have broken various depositions into numerous exhibits, in most instances, the
Court cites the record using the docket numbers for each exhibit rather than the document names. Pin
cites are to ECF pagination, except for citations to depositions, where the original page and line numbers
are used.

2

8 at 1.) Mr. Fleming left Bermuda High Soaring at 12:41 p.m., but the weather
conditions were not conducive to his original flight plan, and just after 4:00 p.m., while in
the vicinity of Darlington, South Carolina, he decided to return to Bermuda High
Soaring. (Id.) He proceeded north of Hartsville and then headed southwest toward Lake
Robinson in an attempt to find a thermal pattern that would allow him to gain altitude.
(Id.) It was at this point that he passed over the Robinson Plant. (Id.)
According to Mr. Fleming, his glider made a single pass over the facility, but did
not fly directly over the dome of the reactor. (See ECF No. 144-25 at 37:5-38:25
(describing the flight path).) An examination of the flight recorder in his glider confirmed
this testimony and indicated that the glider remained in an excess of 1,000 feet over the
facility as it made its pass. (See ECF No. 144-11 at ¶ 9; ECF No. 144-26 (illustration
showing the horizontal flight trace from Fleming’s flight recorder).) The glider’s pass
over the Robinson Facility lasted less than two minutes, and it proceeded several miles
away from the plant toward the east side of Lake Robinson where it slowly gained
altitude by a normal mode of flight for a glider, which involved circling or “thermalling” “in
a rising column of air, much the way a buzzard constantly turns to stay aloft on a
summer day.” (ECF No. 144-11 at ¶¶ 10-11.)
It does not appear that, at any time relevant to this case, there were any FAAimposed airspace restrictions over or around the Robinson Nuclear Plant, or anything
that could accurately be described as a “no-fly zone”. (ECF No. 144-10 at ¶ 5, ECF No.
144-11 at ¶¶ 6-7.) Nor does it appear from the record that Mr. Fleming violated any FAA
regulations during his flight on July 26, 2012. (ECF No. 144-11 at ¶ 5.) The FAA had
issued a Notice to Airmen (NOTAM), which read as follows:

3

In the interest of national security and to the extent practicable, pilots are
strongly advised to avoid the airspace above, or in proximity to such sites
as power plants (nuclear, hydro-electric, or coal), dams, refineries,
industrial complexes, military facilities and other similar facilities. Pilots
should not circle as to loiter in the vicinity over these types of facilities.3
Mr. Fleming was aware of this NOTAM on July 26, 2012; however, he and Plaintiff’s
expert witnesses characterize the NOTAM as “advisory” and maintain that thermalling,
the means by which a motorless glider climbs and maintains altitude, should not be
considered “loitering.” (ECF No. 144-34 at 78:12-79:13; ECF No. 144-11 at ¶ 12.)
Plaintiff also submitted some evidence suggesting that the FAA has clarified that
thermalling is not the same as “loitering.” (See ECF No. 144-10 at ¶¶ 10-11; ECF No.
144-11 at ¶¶ 12-13.) For purposes of these summary judgment motions, the Court
assumes that Mr. Fleming’s flight was legal, and the evidence largely supports that
conclusion.
Security personnel employed by Duke at the Robinson Plant observed Mr.
Fleming’s glider pass over the facility and then begin to circle in a nearby area. The
security personnel considered the continued presence of the aircraft in the vicinity of the
plant to be suspicious, and initially believed that the glider was a drone. (ECF No. 135-3
at 106:23-107:20, 164:25-165:14; ECF No. 135-4 at 42:11-13, 45:14-17.) They
contacted local law enforcement and the local airport, and also spoke with the Federal
Aviation Administration (“FAA”) and Shaw Air Force base (“Shaw”) regarding the
suspicious aircraft. (ECF No. 135-3 at 129:5-10, 154:8-12; ECF No. 135-4 at 22:723:17, 35:18-24; ECF No. 135-9.) Neither the FAA nor Shaw could pick up the aircraft
by radar. (ECF No. 135-11 at 11:5-15; ECF No. 135-4 at 23:18-25; ECF No. 135-10 at
81:4-17.)

3

See FAA National Flight Data Center, Special Notice 4/0811 (“Notice to Airmen”).

4

The arrest warrant alleges that Mr. Fleming flew “very close to the nuclear plant
dome in a ‘no-fly zone.’” (ECF No. 144-7.) Various Duke employees have given
estimates of Mr. Fleming’s altitude that are inconsistent with the records from the flight
recorder. In one of the most extreme instances, the assistant manager of the Hartsville
Airport reported that Duke security personnel “stated that the glider had flown only 100
feet above the dome of the reactor ….” (Aff. of Wendy Griffin ¶ 11, ECF No. 144-2.) It is
not entirely clear what the Duke Defendants conveyed to the Darlington Defendants
regarding Mr. Fleming’s altitude, but construing, as it must, the facts in the light most
favorable to the non-moving party, the Court assumes that the report did not precisely
or accurately relay the Mr. Fleming’s true altitude and that the Duke Defendants
reported to the Darlington Defendants that Mr. Fleming had flown very close to the
dome of the reactor.
Law enforcement also appears to have been operating under the inaccurate
assumption that the airspace in and around the Robinson Plant was a restricted “no-fly
zone.” It is not entirely clear where the Darlington County Sherriff’s Office got this idea.
Plaintiff has speculated that the Duke Defendants and their agents also held this
inaccurate belief and have suggested that they conveyed it to law enforcement.
However, there is only the most speculative evidence that anyone from Duke actually
held this belief. (See ECF No. 144-20 at 3 (Sheriff Byrd implying in a news interview that
Duke and local and federal officials shared a false assumption that the airspace over
the plant was restricted4).) Plaintiff has not directed the Court to any evidence that

4

The assumption that the Duke Defendants believed that the airspace over the Robinson Plant was
restricted is called into question by testimony indicating that airplanes and even gliders regularly flew over
the Robinson Plant without incident. (See Reid Dep. 39:13-40:3, ECF No. 144-52 (testifying that flights
regularly flew over the Robinson Plant).) According to Duke, it was Mr. Fleming’s flight pattern and

5

anyone from Duke made this claim to local law enforcement.5 Numerous witnesses
denied hearing anyone from Duke convey to state law enforcement that there was a
“no-fly zone” over the Robinson Nuclear facility or that Mr. Fleming had flown into a “nofly zone.” (See ECF No. 144-6 at 169:2-22; ECF No. 144-30 at 169:2-10.) Additionally,
Mr. Fleming denied hearing anyone from Duke assert that he had entered a “no-fly
zone” or otherwise mention a “no-fly zone.” (ECF No. 135-5 at 55:17-24.) Indeed, when
asked about how he and his deputies came to believe that the airspace over the
Robinson Nuclear Plant was restricted, Sherriff Byrd testified as follows:

proximity to structures in the plant that caused his flight to be reported as suspicious, not the mere fact
that he flew in the area around the Robinson Plant. (See ECF No. 144-30 at 90:8-93:21.)
5
Plaintiff explicitly alleges that Duke reported to the Sheriff that Fleming had “infiltrated a no-fly zone”
over the facility. In support of this claim, Plaintiff cites (1) the Amended Complaint at ¶¶ 23-24, (2) the
Deposition of Tim Robertson at 168-169, (3) the arrest warrant, (4) the Sherriff’s Reports, and (5) the
Deposition of Sherriff Byrd at 90-92, 74, 96, 131, and 122. “Allegations contained in a complaint are not
evidence, and cannot defeat a motion for summary judgment.” See, e.g., Cambridge Capital Group v. Pill,
20 Fed. Appx. 121, 124-25 (4th Cir. 2001) (unpublished). The cited portions of the Robertson Deposition
do not support Plaintiff’s claim. Mr. Robertson was specifically asked, “[s]o did anyone at Duke Energy, to
the best of your knowledge, tell the Darlington County sheriff that the glider was in a no-fly zone,” and his
answer was “No.” (ECF No. 144-6 at 169:2-5.) The arrest warrant and incident report prepared by the
Darlington County Sheriff’s Office both indicate that Mr. Fleming flew through restricted airspace or a “nofly zone,” but neither attribute this claim to anyone from Duke. (See ECF No. 144-7; ECF No. 144-8 at 4.)
Finally, the Court has reviewed the cited pages from Sheriff Byrd’s deposition, which do not directly
support Plaintiff’s allegation that someone from Duke said there was a “no-fly zone” over the Robinson
Plant, but rather indicate that the Sheriff and his deputies reached this conclusion as a matter of “common
sense.” In summary, the Court cannot find any direct evidence that “Duke called the Darlington County
Sheriff to report that Mr. Fleming’s glider … had ‘infiltrated a no-fly zone’ over the facility,” as Plaintiff has
claimed. (ECF No. 144 at 2-3.) It is one thing for a party to argue that a sequence of events or statements
create an inference that information came from a particular source, but it is quite another to attribute
language with quotation marks around it to a source where there is no direct evidence that the statement
was made by that source and to send the Court on a wild-goose chase looking for evidence that does not
exist in any form close to that suggested in the briefing. A citation without an introductory signal and
explanatory parenthetical is understood to assert that the cited authority “(i) directly states the proposition,
(ii) identifies the source of a quotation, or (iii) identifies an authority referred to in the text.” The Bluebook:
A Uniform System of Citation (19th ed. 2010) at R.1.2. Plaintiff’s oversight is particularly ironic given the
harsh accusations it levels regarding the Duke Defendants’ recitation of facts. (See, e.g., ECF No. 144 at
1 (“Dukes recitation of the facts in this case as enumerated in their memorandum of law are replete with
self-serving statements of what Duke would like the facts to be, but in reality represent a one sided view
of the case that does not comport with the record as a whole.”).)

6

Q. So how did you or your deputies come to believe that there was this
restricted airspace over the nuclear plant?
A. I think that was an assumption that we arrived at based on what we
considered common sense and the national response since 9/11.
(ECF No. 144-16 at 96:10-13.)
After receiving the report from Duke, the Darlington Defendants engaged in what
can only be described as a heavy-handed response. As many as seventeen (17)
vehicles carrying local law enforcement and two police dogs converged on the Hartsville
Airport. (Aff. of Wendy Griffin ¶ 10, ECF No. 144-12.) Deputies of the Darlington County
Sheriff’s office advised the airport’s assistant manager, Wendy Griffin, that they were
“commandeering the airport” and requested that she order Mr. Fleming’s glider to land.
(Id. at ¶¶ 3-4; ECF No. 144-38 at 259:2-5.) Ms. Griffin responded that she did not have
the authority to order the pilot of the glider to land as such authority belonged
exclusively to the FAA. (ECF No. 144-12 at ¶ 4.) Although she believed that she lacked
the authority to give the requested order, Ms. Griffin “felt coerced by law enforcement to
cooperate,” and she conveyed the instruction to Mr. Fleming to land his glider. (Id. at ¶¶
5-7.)
An incident report from the Darlington County Sherriff’s Office indicates that
“officials from the H.B. Robinson Nuclear Plant also arrived on the scene at the airport,”
but it does not indicate what role, if any, these officials played. (ECF No. 144-8.) Ms.
Griffin indicated that Duke security personnel arrived, told her that the aircraft had flown
a hundred feet over the dome of the reactor and that they wanted to shoot the aircraft
down. (ECF No. 144-12 at ¶ 11.) This Duke employee also allegedly told Ms. Griffin that
an armed helicopter had been deployed from Chesterfield County. (Id.) Despite these

7

statements, there is absolutely no evidence that anyone from Duke ever attempted to
shoot at Mr. Fleming’s glider or that any steps were taken by Duke to seek authorization
to shoot at the glider. Moreover, it appears from the record that the helicopter allegedly
referenced belonged to Chesterfield County law enforcement, and not to Duke. (See
ECF No. 135-9, ECF No. 144-32 at 60:2-24.)
Although he did not believe that he had entered any restricted airspace or
otherwise violated the law, Mr. Fleming decided to comply with the instruction and land
his glider. (ECF No. 135-5 at 80:1-11.) Once on the ground he cooperated with law
enforcement and explained that there was no restricted airspace corresponding to the
Robinson Plant on his flight charts. Although these claims were apparently corroborated
by Ms. Griffin’s response to law enforcement and by statements made to Sheriff’s
deputies by a helicopter pilot for Chesterfield County, (see ECF No. 144-12 at ¶ 12), Mr.
Fleming was, nevertheless, arrested by Darlington County Sheriff’s deputies and
charged with a breach of the peace, a misdemeanor.6
There is substantial evidence in the record that the Darlington County Sheriff’s
Department, and not the Duke Defendants, made the decision that Mr. Fleming should
be arrested. Captain Joyce Everett of the Darlington County Sheriff’s Office testified:
Q. Was Mr. Fleming arrested for Duke Energy?
A. I don’t know anything about that, him being arrested for someone else.
The sheriff’s office doesn’t arrest for – this is for us. I don’t know about
nobody else.
Q. Did anyone from Duke ask the sheriff’s office to arrest or detain Mr.
Fleming?

6

Additionally, Plaintiff maintains that the arrest warrant was defective because it indicates that a particular
officer personally appeared before a magistrate, when the facts indicated that the warrant was prepared
and signed by an officer who was not even on duty on July 26. (See ECF No. 153 at 9-10.)

8

A. Not to my knowledge. That ain’t the way the sheriff’s office works.
…
Q. You weren’t asked by H.B. Robinson personnel to do anything with
regard to this incident, correct?
A. I wasn’t.
(ECF No. 135-11 at 86:19-87:8; 91:25-92:2.)
Captain Gary Streett, also of the Darlington County Sheriff’s Office, testified that
he made the decision to instruct one of his officers to direct Mr. Fleming to land at the
Hartsville Airport. (See ECF No. 135-10 at 21:8-12). He also made the decision that Mr.
Fleming should be arrested:
Q. Did you make the determination to arrest Mr. Fleming?
A. I did.
…
Q. In your training with Duke power, is there anything in that training that
indicates how long you should hold something [sic] that you have
questions about?
A. No. …holding someone …that we have questions about is normally not
a Duke power decision. That’s our decision. That’s a law enforcement
matter. Duke power’s concerned with the security and protection of that
reactor and their personnel. …
…
Q. …[A]t the time you made the decision to make the arrest, no one from
Duke was with you at that point?
A. No.
…
Q. … And the decision to detain him was made by law enforcement again.
Is that right?
A. Yes, sir.
Q. …[T]hat was not something that Duke was involved in?
A. No…
…
9

Q. …[W]hen the warrant, the next day on July 27th was presented to the
magistrate judge – who did that?
A. I believe that was Lieutenant Jim Goins.
Q. And there was no one from the Duke side who was present for that that
you’re aware of?
A. No.
…
(Id. at 42:21-23, 52:9-18, 147:12-15, 149:15-20.)
After Mr. Fleming was arrested, Mirandized, and placed in the back of a
Darlington County Sherriff’s vehicle, a law enforcement officer opened the door and
asked if he would answer questions from two individuals that Mr. Fleming believed to be
Duke employees. (ECF No. 135-8 at 3) Mr. Fleming responded that “it depended on
what the questions were.” (Id.) The Duke personnel asked Mr. Fleming whether he
knew that he was flying over a nuclear plant, and he responded that he did. This was
the only question that these individuals asked Mr. Fleming. (Id.; Fleming Dep., ECF No.
135-5 at 47:1-17.) Plaintiff also claims that Duke security personnel were allowed to
look inside Fleming’s glider, however, a photo of the glider reveals that the cockpit is
very small, and the entirety of it could be seen by a person standing outside the glider
on the runway. (See ECF No. 135-7.) There is no evidence that Duke security
personnel took anything from the glider and created any type of inventory to turn over to
law enforcement.
Mr. Fleming spent the night of July 26 in jail. The next day he was interviewed by
agents with the FBI and the Department of Homeland Security, and was released on
bond after having spent a total of approximately 24 hours in custody. (See ECF No.
135-8 at 4-5.) The breach of the peace charge against Mr. Fleming came up for trial in
10

the Hartsville Magistrate Court on August 21, 2012. Prior to the trial, Mr. Fleming’s
defense counsel, Gerald Malloy, a practicing attorney and state senator, advised Mr.
Fleming that the charge against him would be dropped if he waived any potential legal
claims he might have against Darlington County law enforcement. Mr. Fleming initially
resisted the proposal, but after arguing with Mr. Malloy about it for approximately 20
minutes, he decided to follow his attorney’s advice. (See ECF No. 141-2 at 67:1168:12.) Mr. Fleming composed the following release, which was written in his
handwriting, signed by him, and witnessed by Denise Chavis, an employee of Mr.
Malloy’s office:
SUBJECT: CASE # 2012A1610100158
TO WHOM IT MAY CONCERN
I, ROBIN G. FLEMING, ACCEPT DISMISSAL OF THE SUBJECT
BREACH OF PEACE AGAINST ME. I ALSO AGREE THAT NO LEGAL
ACTION WILL BE TAKEN AGAINST DARLINGTON COUNTY LAW
ENFORCEMENT NOW, OR IN THE FUTURE.
SIGNED: Robin G. Fleming
(ECF No. 141-3.)
Mr. Fleming was not in custody at the time he executed the release and had not
been in custody since July 27, 2012, the day after he was arrested. (See ECF No. 141-2
at 68:16-69:4.) In explaining his reasoning for signing the release, Mr. Fleming testified
as follows:
I signed the document, believing that if I didn’t, it would go to a court case.
And I would be in front of a series of jurors from the City of Hartsville. And
I felt I would have no chance of clearing my name. And then – I would
have a record and I would also have to pay a fine. So I elected to sign this
document.

11

(ECF No. 141-2 at 17:6-13.) Mr. Fleming denied that Mr. Malloy had told him that he
would go to jail if he failed to sign the release, but said that Mr. Malloy did advise him
that it would be in his best interest to sign a release. (Fleming Dep., ECF No. 135-5 at
69:5-15.)
Plaintiff argues that the release should be set aside, in part, because Mr. Fleming
learned “only after the release was signed” that “Defendant Byrd had admitted against
his interest that his office did not require the release to be signed in consideration for
dropping the charges against him.” (Pls. Resp. to Darlington Defendants Mot. Summ. J.
5, ECF No. 153.) Plaintiff is referring to a January 17, 20137 news article about Mr.
Fleming’s arrest, which reported as follows: “…Fleming has said that his lawyer had told
him outside the closed courtroom that the charges would be dropped if he agreed not to
sue the department. [Sheriff] Byrd denied that the prosecuting attorney made this
suggestion.” (ECF No. 144-20 at 3.) Plaintiff’s claim simply does not follow from the
language cited in the article. The fact that it was defense counsel who suggested that
the case be resolved through a release-dismissal agreement does not mean that the
charges would have been dropped in the absence of the waiver. Indeed, while Sherriff
Byrd testified that his office did not require Mr. Fleming to sign a release of claims
against it in order to drop the charges, he also indicated that the charges would not
have been dropped in Mr. Fleming’s attorney had not offered the release of claims. (See
ECF No. 144-23 at 184:11-185:19.)

7

The date of the article is significant because it is several months after Mr. Fleming signed the release.
There is no evidence to suggest that Sheriff Byrd or anyone else connected to the Darlington County
justice system had indicated that charges against Mr. Fleming would be dismissed with or without a
release at the time Mr. Fleming signed the release.

12

Finally, the evidence further suggests that the Duke Defendants had no role in
the decision to prosecute Mr. Fleming for breach of the peace. Captain Streett testified
as follows:
Q. And at the time that the case was to go forward for prosecution on
August 21, to your knowledge, there was no one from Duke present to – to
make that case?
A. The only one present that day that I know of was myself, Captain
Everett and Senator Malloy.
Q. And none of them were from Duke?
A. No.
(ECF No. 135-10 at 150:21-151:3.) Plaintiff has not directed the Court to any contrary
evidence indicating that the Duke Defendants contributed in any way to the decision to
charge Mr. Fleming.
STANDARD OF REVIEW
The court shall grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating
that summary judgment is appropriate; if the movant carries its burden, then the burden
shifts to the non-movant to set forth specific facts showing that there is a genuine issue
for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts
that a fact cannot be disputed, it must support that assertion either by “citing to
particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other

13

materials;” or “showing . . . that an adverse party cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must
demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is
entitled to judgment as a matter of law. As to the first of these determinations, a fact is
deemed “material” if proof of its existence or non-existence would affect disposition of
the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue of material fact is “genuine” if the evidence offered is such that a
reasonable jury might return a verdict for the non-movant. Id. at 257. In determining
whether a genuine issue has been raised, the court must construe all inferences and
ambiguities against the movant and in favor of the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of
the non-moving party’s position is insufficient to withstand a summary judgment motion.
Anderson, 477 U.S. at 252. Conclusory allegations or denials, without more, are
likewise insufficient. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th
Cir. 1985). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
DISCUSSION
I.

Claims Against the Darlington Defendants
Although the Darlington Defendants move for summary judgment on numerous

grounds, the Court concludes that all the claims against them should be dismissed

14

because Mr. Fleming executed a valid waiver of his rights to sue them in connection
with his arrest. While acknowledging that release-dismissal agreements had the
potential for abuse, the Supreme Court in Town of Newton v. Rumery, 480 U.S. 386
(1987), rejected the argument that this potential for abuse rendered such agreements
per se unenforceable. The Court reasoned that, “[i]n many cases a defendant’s choice
to enter into a release-dismissal agreement will reflect a highly rational judgment that
the certain benefits of escaping criminal prosecution exceed the speculative benefits of
prevailing in a civil action.” Id. at 394. Justice O’Connor, who provided the Court’s
critical fifth vote, concurred, writing separately to clarify that it was the defendant’s
burden to “prove” that the release in question “was voluntarily made, not the product of
prosecutorial overreaching, and in the public interest.” Id. at 401 (O’Connor, J.,
concurring). Justice O’Connor also set forth a list of factors to be considered in
determining whether to set aside a release-dismissal agreement, including:
(1) the knowledge and experience of the criminal defendant;
(2) the nature of the criminal charges;
(3) the existence of a legitimate criminal justice objective for obtaining the
release;
(4) whether the defendant was counseled; and
(5) whether the agreement was executed under judicial supervision.
Id. at 401-402. The Fourth Circuit has treated these factors as controlling. See
Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348, 353-54 (4th Cir. 2003).
A. The Rumery Factors
(1) The Knowledge And Experience Of The Criminal Defendant
Plaintiff argues that the first factor favors him because, although Mr. Fleming was
a United States citizen, he grew up in the United Kingdom and spent much of his life in
South Africa. (ECF No. 153 at 7.) Furthermore, he had no prior encounters with the
15

criminal justice system in the United States and consequently lacked relevant
knowledge and experience. (Id.) However, beginning with Rumery, courts that have
considered this factor appear to have focused more on the “sophistication” of the
accused than on his or her level of experience with the criminal justice system. See,
Rumery, 480 U.S. at 394 (characterizing the accused as “a sophisticated
businessman”); Poling v. Ferguson, 878 F. Supp. 880, 882 (N.D. W. Va. 1995) (finding
that although the plaintiff was young and lacked a college education, the fact that he
was articulate and represented by an experienced defense attorney made up for his
“lack of sophistication”); Berry v. Peterson, 887 F.2d 635, 640 (5th Cir. 1989) (noting
that while the plaintiff and his family had “modest education[s]” “they were all literate”);
Hill v. City of Cleveland, 12 F.3d 575, 578 (6th Cir. 1993) (contrasting the
“sophistication” of the accused with the accused in Rumery); Woods v. Rhodes, 994
F.2d 494, 499 (8th Cir. 1993) (describing the first factor as “the sophistication of the
signer”).
Plaintiff has not directed the Court to any specific cases where a court focused
primarily or exclusively on the accused’s level of experience with the criminal justice
system. Indeed, the Court suspects that, in many instances, a party’s level of
experience with the criminal justice system will be inversely correlated with his or her
level of sophistication, which is what this factor appears to be primarily concerned with.
While Mr. Flemings limited experience with and knowledge of the criminal justice
system is relevant, it is easily outweighed by the fact that, by all accounts, he was an
accomplished, well-educated man who was capable of weighing the relative advantages
and disadvantages of signing the release. Moreover, Mr. Fleming’s explanation of his

16

reasoning for signing the release evinces a logical calculation that it was preferable to
waive his right to sue Darlington County law enforcement in order to avoid the risk of a
conviction and fine on a minor charge. Accordingly, the Court finds that the first factor
favors the enforceability of the release-dismissal agreement.
(2) The Nature Of The Criminal Charges
Regarding the second factor, Plaintiff emphasizes the weakness of the criminal
charges against Fleming, arguing that the charges should have been dropped, but were
maintained for the improper purpose of coercing Fleming to waive his rights in a civil
action. (See ECF No. 153 at 10-11.) An evaluation of the strength of the criminal
charges is arguably relevant to the overall determination of whether the agreement was
“a product of an abuse of the criminal process.” Rumery, 480 U.S. at 399. However, “the
nature of criminal charges” referenced in Rumery appears to refer primarily to the
severity of the charges brought, not their underlying merit. See id. at 401 (“The nature of
the criminal charges that are pending is also important, for the greater the charge, the
greater the coercive effect.”) Here, the charges pending were for breach of the peace, a
misdemeanor, reducing substantially the risk that Fleming was unduly coerced to accept
the release-dismissal agreement. See Rodriguez, 338 F.3d at 354 (“[T]he likelihood that
plaintiffs were unduly coerced is particularly small, since they faced only misdemeanor
charges.”). Thus, the second factor favors the enforceability of the release-dismissal
agreement.

17

(3) Existence Of A Legitimate Criminal Justice Objective For Obtaining The
Release
The decision to dismiss the criminal charges in Rumery involved criminal justice
considerations that are not involved here, namely, sparing the victim of an alleged
sexual assault from being required to testify against the defendant, who had been
charged with witness tampering for trying to prevent her from testifying against her
alleged assailant. See Rumery, 480 U.S. at 402-403. While no analogous concerns
have been raised here, the Rumery Court also added that “sparing the local community
the expense of litigation associated with some minor crimes for which there is little or no
public interest in prosecution may be a legitimate objective of a release-dismissal
agreement.” 480 U.S. at 399-400; see also Rodriguez, 338 F.3d at 354 n.3 (observing
that “the release serves the public interest by sparing Bladen County the expense of
future civil litigation”). This case would appear to be exactly the type of “minor” criminal
matter where a release-dismissal agreement represents a sensible resolution.
Moreover, the Court can hardly attribute to the Darlington Defendants an improper
motive to pursue weak charges in order to secure a release-dismissal agreement when
it was Mr. Fleming’s defense counsel who first suggested that the case be resolved
through such an agreement. The third factor favors the enforceability of the releasedismissal agreement.
(4) Whether The Defendant Was Counseled
It is undisputed that Mr. Fleming was represented by counsel at the time he
executed the release-dismissal agreement. Plaintiff, however, argues that Mr. Malloy
should not have ever been representing Mr. Fleming because he had a conflict of
interest due to the fact that he had previously represented Progress Energy, a
18

predecessor to Duke. Plaintiff fills the record with insinuations of intrigue, but the actual
facts are fairly unremarkable. There is no evidence that Mr. Malloy was representing the
Duke Defendants at the time he was representing Mr. Fleming, and the Duke
Defendants were not prosecuting Mr. Fleming for breach of the peace. If the theory is
that Mr. Malloy was acting to protect the interests of the successor of his former client,
an obvious question would be why he did not seek to obtain a release for Duke as a
part of the deal. It is clear from the record that Mr. Fleming was represented at the time
he signed the release-dismissal agreement, and that he drafted and executed it after
talking with his counsel about the risks and benefits. Moreover, the Court, can hardly
fault Mr. Malloy for negotiating a deal to have the charges against his client dropped,
particularly where Mr. Fleming suffered no discernable injury to his person or property
during his arrest and spent at most 24 hours behind bars. Plaintiff has not presented the
Court with facts that would lead the Court to treat Mr. Fleming as unrepresented or to
find that his counsel was ineffective. Again, the Court finds that this factor favors the
enforceability of the release-dismissal agreement.
(5) Whether The Agreement Was Executed Under Judicial Supervision
The release-dismissal agreement was not executed under judicial supervision,
which does weigh against its enforceability. However, the Court notes that the
agreement found enforceable in Rumery was not executed under judicial supervision,
but that fact was not fatal to the agreement. See 480 U.S. at 403 (“While it would have
been preferable, and made this an easier case, had the release-dismissal agreement
been concluded under some form of judicial supervision, I concur in the Court's
judgment . . . that Rumery's § 1983 suit is barred by his valid, voluntary release.”).

19

Though the factor is not specifically addressed, it does not appear that the agreement
found enforceable in Rodriguez was executed under judicial supervision either. In sum,
four of the five Rumery factors strongly support the validity of the agreement.
B. Other Arguments Against Summary Judgment for Darlington Defendants
The Plaintiff also argues that he is not bound by the release-dismissal agreement
that Fleming signed because the agreement did not specify that it applied to his heirs
and assigns. Under South Carolina law, “a personal representative of a decedent
domiciled in this State at his death has the same standing to sue and be sued in the
courts of this State and the courts of any other jurisdiction as his decedent had
immediately prior to death.” S.C. Code Ann. § 62–3–703. Accordingly, this Court has
held that personal representatives are bound by various waivers signed by or
attributable to their decedents. See, e.g., THI of S. Carolina at Columbia, LLC v.
Wiggins, CA 3:11-888-CMC, 2011 WL 4089435, at *5 (D.S.C. Sept. 13, 2011) (“Thus,
[PR] is bound in her capacity as personal representative if [Decedent] would have been
bound immediately prior to his death.”).
Finally, Plaintiff argues that summary judgment should not be granted because,
at the time the motion was filed, Plaintiff had yet to receive discovery responses from
Captain Streett, who was added to this case in an amended complaint. (See ECF No.
153 at 3-4.) It does not appear that Plaintiff has filed a motion to compel responses to
this discovery, and while the Court would typically hesitate to grant summary judgment
to a party who failed to comply with discovery obligations, it is clear to the Court that
summary judgment is nevertheless warranted. Here, the basis for the Court’s ruling in
favor of the Darlington Defendants is the release executed by Mr. Fleming, and Plaintiff

20

has not addressed how any of the discovery sought might be relevant to the validity of
the release or moved the Court for assistance in obtaining the information. Accordingly,
the Court concludes that summary judgment is proper as to the Darlington Defendants.
II.

Section 1983 Claims Against the Duke Defendants
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that he or

she was “deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The “under-color-of-state-law”
requirement excludes from the reach of § 1983 liability “merely private conduct, no
matter how discriminatory or wrongful.” Id. at 50 (quoting Blum v. Yaretsky, 457 U.S.
991, 1002 (1982)). The Duke Defendants argue that Duke is a private entity as opposed
to a public entity and that its conduct does not fall within the exception allowing private
entities or individuals to be treated as state actors. (See ECF No. 135-1 at 9.) Plaintiff
does not appear to contest that Duke is a private entity, but argues that the Duke
Defendants should be treated like a state actor because of their alleged role in the
events in question.
“To implicate 42 U.S.C. § 1983, conduct must be ‘fairly attributable to the State.’”
DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999) (quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982)); see also Dowe v. Total Action Against Poverty in
Roanoke Valley, 145 F.3d 653, 659 (4th Cir. 1998) (“The central inquiry in determining
whether a private party’s conduct will be regarded as action of the government is
whether the party can be described ‘in all fairness’ as a state actor.”). If the defendant is
not a state actor it must “have a sufficiently close relationship with state actors such that

21

a court would conclude that the non-state actor is engaged in the state’s actions.”
DeBauche, 191 F.3d at 506.
Plaintiff directs the Court to a number of allegations which it claims support the
contention that the conduct of the Duke Defendants is “fairly attributable to the state.”
These include: (1) the allegation that law enforcement is trained by the Duke
Defendants on how to respond to calls from the Robinson Plant, (2) the allegation that
an internal Duke email shows joint efforts with law enforcement to capture and detain
Mr. Fleming, (3) the allegation that Duke employees traveled to the Hartsville Airport
where Mr. Fleming landed, (4) the allegation that Duke employees participated in
directing an employee of the Hartsville Airport to instruct Mr. Fleming to land, (5) the
allegation that Duke employees photographed or inspected Mr. Fleming’s glider, and (6)
the allegation that Duke employees interrogated Mr. Fleming while he was detained.
Each of these allegations must be evaluated in light of the evidence that is actually in
the record.
Before turning to the specific allegations, it is important to note that the Duke
Defendants have a duty to report any suspicious activity in the area around the Plant to
specified federal authorities and local law enforcement, which they did in this case.
There is no requirement that conduct be illegal for it to be considered suspicious and
reported. Moreover, the Duke Defendants have a duty to investigate suspicious
instances, and, depending on their findings, to submit reports to federal regulatory
authorities.8 These duties arise from federal regulatory law, and to treat actions taken in

8

It is not difficult to imagine that federal authorities and regulators might seek information about
suspicious flight activity as well as the identity and activities of the pilot, regardless of whether a crime
was committed. For example, the federal agents who interviewed Mr. Fleming appeared to be particularly
interested in whether he had taken photographs of the Plant. (See ECF No. 135-8 at 4-5.) In short, one

22

compliance with these federally-imposed responsibilities as “state action” would not be
appropriate. See, e.g., Dowe v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 658 (4th Cir. 1998) (“To the extent Dowe contends that TAP is funded and
regulated by the federal government, she is really making the case that TAP was acting
under the color of federal law. If so, the claim should have been brought under Bivens v.
Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), rather than
§ 1983.”) (abrogated on other grounds). If the Duke Defendants had seized Mr.
Fleming, ordered state law enforcement to seize him, used any force against him,
sought to have him prosecuted, or otherwise exercised power analogous to that of the
state against him, this would likely be a different case.
The Court does not find that the conduct cited by Plaintiff is sufficient to warrant
treating the actions of the Duke Defendants as the actions of the state. First, Plaintiff
has not shown any direct link between training conducted by the Duke Defendants and
the law enforcement response in this case. If there is evidence supporting the theory
that the Duke Defendants, during a previous training session, provided the Darlington
County Sheriff’s Department with inaccurate information on how this specific situation
ought to have been handled, that theory has not been adequately developed to allow it
to be presented to a jury. The only evidence Plaintiff cites is a very short passage from
the deposition of Mitchell Lynch indicating that Duke provides some training to law
enforcement and participates in joint drills with them from time to time. (ECF No. 14453.) This is simply insufficient to convert the Duke Defendants into state actors.

cannot assume that the motivation for Duke security personnel to investigate Mr. Fleming’s flight would
be to aid state authorities in arresting and prosecuting him.

23

Second, Plaintiff directs the Court to an internal Duke email sent at 5:39 p.m. on
the evening of July 26, 2012, which reads as follows:
The control room was contacted by Security personnel regarding an
unidentified airborne craft in the area near the plant. Further investigation
and monitoring identified the craft as a glider. The tail number has been
obtained by a security officer stationed in one of the BRE towers. This
information has been forwarded to Darlington County Law enforcement to
assist in determining the crafts [sic] origin in an effort to capture and detain
the individual for further questioning. The individual has been
apprehended at the Hartsville airport by local law enforcement personnel.
(ECF No. 144-33.)
Here is how Plaintiff characterizes this email in its submission to the Court: “In an
internal email, Duke indicated that it had contacted the Darlington County Sheriff’s
Department and requested that it capture and detain Mr. Fleming.” (ECF No. 144 at 8.)
The email above simply does not say what Plaintiff maintains it says. There is no
“request” from the Duke Defendants that local law enforcement “capture and detain” Mr.
Fleming. A fair reading of this email is that the Duke Defendants forwarded information
to local law enforcement officers who were themselves seeking to capture and detain
Mr. Fleming and ultimately did capture and detain him. However, even if a jury could
reasonably disagree with this interpretation of the email, Plaintiff has not directed the
Court to any other steps that the Duke Defendants took that can be fairly characterized
as an attempt to “capture or detain him.” The record makes it abundantly clear that it
was the Darlington County Sheriff’s Department that captured and detained Mr.
Fleming, not Duke.
Third, the fact that Duke security personnel travelled to the Hartsville Airport
where Mr. Fleming was arrested is fairly unremarkable because they clearly had an
interest in determining who was operating the aircraft, the purpose for which it was

24

being operated, and whether there was any ongoing threat to the security of the
Robinson Plant. Indeed, if local law enforcement had determined that they were going
to arrest the operator of the aircraft, it would be odd for security personnel from the
Robinson Plant not to go to the scene to see what else could be learned about the
situation. Private security officers do not become state actors simply by being at the
scene of an arrest or seizure. See Sanders v. City of Minneapolis, Minnesota, 474 F.3d
523, 527 (8th Cir. 2007) (security guard employed by private college who followed a
vehicle being driven erratically and blocked it in an alley was not a state actor for
purposes of a lawsuit brought by driver’s family after driver was killed by responding
police officers).
Fourth, the claim that Duke security personnel assisted law enforcement in
convincing Ms. Griffin to order Mr. Fleming to land is simply not supported by the
record. Plaintiff’s counsel appears to have filed Ms. Griffin’s affidavit out of order,
switching pages 3 (¶¶ 4-9) and 4 (¶¶ 9-16). (See ECF No. 144-12.) That the affidavit
was filed out of order is not only confirmed by the paragraph numbers, but by the fact
that ¶ 4, which begins at the bottom of page 2, continues at the top of page 4. When the
pages and paragraphs are read in proper order, it appears that Ms. Griffin had already
argued with the Sheriff’s deputies (¶ 4) and conveyed to Mr. Fleming the Sheriff’s
instruction that he land his glider (¶ 5) before Duke security personnel even arrived (¶
11). While Ms. Griffin alleged that “[n]uclear plant personnel at the airport appeared to
work in concert with Darlington County Sheriff’s deputies throughout the incident” (¶ 16),
she also indicated that she “felt coerced by law enforcement” to order Mr. Fleming to

25

land (¶ 5), but did not allege that anything she heard from Duke security personnel
influenced her decision to convey the instruction to Mr. Fleming.
Fifth, the fact that Duke security personnel inspected or photographed Mr.
Fleming’s glider does not convert their actions into the actions of the state. It is not as if
the Darlington County Defendants would have had to let Duke security personnel board
the aircraft to see inside the cockpit. As previously noted, the cockpit of the glider is very
small, and with the hatch open, the entirety of the cockpit could be seen by anyone
standing nearby. Moreover, there is no evidence that the Duke Defendants were
involved in seizing items from the glider or taking an inventory of the glider, which tasks
were completed by deputies of the Darlington County Sheriff’s Department. (See
Incident Report, ECF No. 144-8 at 4.) Again, the conduct of Duke security personnel is
consistent with the goal of gathering information about Mr. Fleming and the motivation
for his flight, and not with gathering evidence to support an arrest or prosecution.
Sixth, Plaintiff points to the fact that Duke employees interrogated Mr. Fleming as
evidence that they were acting as the state. Plaintiff maintains that there is a factual
dispute over whether Mr. Fleming consented to speaking with the Duke security
personnel who questioned him. However, Mr. Fleming’s response does not actually
appear to be disputed. When he was asked if he would answer questions from
members of Duke’s security team, he replied that “it depended on what the questions
were.” (ECF No. 135-8 at 3.) While this is not a commitment to answer the questions, it
is consent for questions to be asked, as his response implies that he would determine
whether to answer after hearing the substance of any given question. In any event,
Duke security personnel asked him a single question about whether he knew that the

26

Robinson Plant was a nuclear facility, to which he responded that he did. This hardly
represents a police-style interrogation.
As illustrated above, in one instance after another Plaintiff fails to distinguish
between the actions of the Duke Defendants and the Darlington Defendants in support
of its argument that the Court should treat the Duke Defendants as if they were the
Darlington Defendants. If the Duke Defendants were strictly private actors with no
separate federal obligations to report and investigate suspicious activity near the plant,
this would be a much closer case. However, given that the Duke Defendants had
legitimate reasons to investigate Mr. Fleming’s flight that were separate from the state’s
apparent interest in apprehending and prosecuting him, the Court cannot characterize
their actions as those of the state.
Finally, Plaintiff argues that the fact that some of Duke’s security personnel are
deputized weighs in favor of treating Duke’s activities as those of the state. However, if
the Court were to find that the Duke Defendants acted under color of state law on this
basis, the result would not necessarily be beneficial for Plaintiff. In Rodriguez, the
Fourth Circuit found that a defendant acting as “an auxiliary deputy sheriff” at the time
he arrested the plaintiffs fell within the scope of a release the plaintiffs executed waiving
their claims against the sheriff’s department. See 338 F.3d at 355 (“The problem for
plaintiffs, however, is that once we find that Priest was acting under color of state law
when making the arrests, he is covered by the release and cannot be sued by Ward or
Rodriguez.”).

27

III.

State Law Claims Against the Duke Defendants
Plaintiff advances state law claims against the Duke Defendants for negligence,

false arrest, and civil conspiracy. The Duke Defendants argue that these claims are
preempted by the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et. seq. (“AEA”), and
the Energy Reorganization Act of 1974, specifically 42 U.S.C. § 5841, which established
the Nuclear Regulatory Commission (NRC).
Under the Supremacy Clause, Article VI, Clause II of the United States
Constitution, state law that conflicts with federal law is of no effect and the applicable
federal law controls. Federal law may supersede state law in three different ways: (1)
when Congress expressly preempts state law by so stating in express terms, (2) where
a scheme of federal regulation is sufficiently comprehensive to invoke a reasonable
inference that Congress left no room within the field for supplementary state regulation,
and (3) where federal and state law actually conflict. See California Federal Sav. and
Loan Ass’n v. Guerra, 479 U.S. 272, 280-81 (1987). The third category, so called
“conflict” preemption, may arise either because “compliance with both federal and state
regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142-143 (1963), or because the state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress,” Hines
v. Davidowitz, 312 U.S. 52, 67 (1941).
“[T]he federal government has occupied the entire field of nuclear safety
concerns, except the limited powers expressly ceded to the states.” Pacific Gas and
Elec. Co. v. State Energy Resources Conservation & Dev. Commn., 461 U.S. 190, 205
(1983). Accordingly, while states may “exercise their traditional authority over the need

28

for additional generating capacity, the type of generating facilities to be licensed, land
use, ratemaking, and the like,” federal authorities “maintain[] complete control of the
safety and ‘nuclear’ aspects of energy generation.” Id. at 212. To determine whether a
state-law tort claim is preempted, a court must consider whether the claim “is so related
to the ‘radiological safety aspects involved in the . . . operation of a nuclear facility that it
falls within the pre-empted field.” English v. Gen. Elec. Co., 496 U.S. 72, 85 (1990).9
“[F]or a state law to fall within the pre-empted zone, it must have some direct and
substantial effect on the decisions made by those who build or operate nuclear facilities
concerning radiological safety levels.” Id.
Like the English Court, this Court rejects the argument “that the pre-empted field
of ‘nuclear safety’ is a large one.” See 496 U.S. at 82-83. What is implicated by this
case is a narrow area of discretion, namely the ability of officials at nuclear facilities to
assess activity in the airspace around a facility, to evaluate whether that activity is
suspicious or concerning, to report that activity to federal and local law enforcement,
and to follow up to determine what, if any, risk was or is posed to the facility by the
activity. Still, the Court finds that, if they were allowed to proceed, Plaintiff’s claims in

9

In a sharply worded response, Plaintiff accuses the Duke Defendants of intentionally misconstruing the
holding in Pacific Gas by failing to discuss the Supreme Court’s 1988 ruling in Silkwood v. Kerr-McGee
Corp., 464 U.S. 238 (1984):
In arguing that Pacific Gas stands for the proposition that state tort law is preempted,
Duke ignores the more recent holding in Silkwood that is precisely on point. Duke’s
ignorance or willful blindness as to Silkwood makes their pre-emption claim frivolous and
irrelevant. Their argument is disingenuous when they knew or should have known that
the Supreme Court held in Silkwood that state law tort claims and punitive damages are
allowed and not preempted by the Atomic Energy Act and its subsequent amendments.
(ECF No. 144 at 11.) The Court, however, agrees with Defendants that Silkwood rested primarily on a
specific finding “that Congress assumed that persons injured by nuclear accidents were free to utilize
existing tort law remedies.” Silkwood, 464 U.S. at 251-52; see English, 496 U.S. at 86 (observing that
“Silkwood was based in substantial part on legislative history suggesting that Congress did not intend to
include in the pre-empted field state tort remedies for radiation-based injuries”). This Court also agrees
with the Duke Defendants that the Supreme Court’s holding in English, which the Duke Defendants cite
and discuss in their memorandum in support of summary judgment, states the controlling test.

29

this case would have a direct and substantial effect on security decisions concerning
radiological safety levels by those charged with operating nuclear facilities.
More specifically, the liability Plaintiff seeks to impose upon the Duke Defendants
would undoubtedly affect the manner in which potential security threats are perceived,
evaluated, and reported to law enforcement. Indeed, the injunctive relief sought by
Plaintiff makes it abundantly clear that this is one of the primary goals of this litigation.
(See Am. Compl. 24-25, ECF No. 118 (seeking an order “requiring . . . Defendants . . .
to develop and implement a program to properly educate their employees and agents
regarding aircraft operations, airspace classification, safety, and aviation security in a
manner that is acceptable to national aviation organizations such as the Aircraft Owners
and Pilots Association and the Soaring Society of America”).) These are matters upon
which federal regulators have provided very specific guidance. Without discussing the
specifics of the NRC guidance that the Duke Defendants submitted to the Court under
seal, the Court finds that the Duke Defendants followed the applicable guidance in their
response to a flight they considered suspicious, and that they considered the flight
suspicious for reasons that were generally consistent with the guidance. (See ECF No.
166 at 5, 8-9, 13 & 16.) Again, it is important to note that a flight need not violate FAA
regulations to be considered suspicious and to warrant security officials at a nuclear
facility contacting law enforcement. If there was ever a venue at which we should hope
security personnel consider themselves better safe than sorry, a nuclear generation
plant is that venue.
Lest Plaintiff fear that the Court is creating an opportunity for security personnel
at nuclear facilities to harass with impunity civilian aircraft lawfully operating in the

30

airspace around such facilities, the Court wishes to emphasize the limited nature of its
ruling. This would be a very different case had the Duke Defendants attempted to shoot
down Mr. Fleming’s glider, seized Mr. Fleming, ordered him to land, or taken any other
steps to physically interfere with his flight or seize his person. The conduct this decision
insulates involves the manner in which nuclear operators assess and evaluate activity
as suspicious or non-suspicious and report that activity to law enforcement. Such
operators should be able to rely on state and local authorities to know the law, to
independently make determinations about the activity reported, and to respond within
the bounds of their lawful authority. To hold such operators liable for tortious actions law
enforcement may take in response to their reports would have a direct and substantial
impact on judgments that Congress intended these operators to make exclusively in
accordance with guidance from federal authorities, such as the NRC.
Plaintiff would likely object that his claims involve not only the reasonableness of
the judgments made by the Duke Defendants, but also the accuracy (or inaccuracy) of
the information they conveyed to law enforcement regarding the altitude of Mr.
Fleming’s glider and his reported flight path. (See ECF No. 144 at 3.) However, to allow
Plaintiff to proceed on such a theory would have a similarly direct and substantial impact
on the readiness or reticence of nuclear facility security personnel to convey their
observations to law enforcement. The NRC has apparently not seen fit to require such
personnel to become experts in differentiating between various types of aircraft, judging
distance and altitude, or describing a flight path in a detailed manner. However, it is
neither for Plaintiff nor this Court to dictate how such personnel are trained when
Congress has delegated these decisions to a specific federal entity. In the absence of

31

any evidence that the Duke Defendants intentionally or maliciously conveyed inaccurate
information to the authorities, the Court concludes that such a theory of liability is
preempted because it would have a direct and substantial impact on the willingness of
security personnel at nuclear facilities to describe what they think they see when they
see it. Allowing nuclear facilities to be held liable for non-malicious inaccuracies in the
reports of their security personnel in the midst of rapidly developing situations would
unquestionably affect the balance between accuracy and precision on the one hand and
candid, contemporaneous reporting on the other. For good reasons, this is a balance
that Congress has left to federal regulators.
CONCLUSION
In conclusion, the Court is sympathetic to the position of Mr. Fleming and his
estate. From the record before the Court it appears that he should not have been
ordered to land or arrested. The Court does not wish to suggest for a moment that it is
sanctioning the response of the Darlington County Sheriff’s Department or that the law
excuses their exercise of authority beyond their jurisdiction. On the other hand, Mr.
Fleming waived his rights against these defendants in return for having very minor
charges against him dropped, and the Darlington Defendants have carried their burden
to show that the waiver is enforceable. While Plaintiff has attempted to raise suspicion
around Mr. Fleming’s defense counsel, the Court is not convinced that he acted
unethically or unreasonably in recommending that Mr. Fleming draft and execute a
release-dismissal agreement. Plaintiff has not directed the Court to facts or
circumstances that meaningfully distinguish this case from others where courts have

32

upheld similar waivers. Accordingly, the Darlington Defendants are entitled to summary
judgment, and their motion for the same (ECF No. 141) is GRANTED.
The Duke Defendants’ motion for summary judgment must also be granted. The
Duke Defendants were not state actors for the purposes of § 1983 because they were
not responsible for the state’s actions in ordering Mr. Fleming to land, arresting him, and
charging him with breach of the peace. While the presence of Duke security at the
airport, the fact that they asked Mr. Fleming a question, and the fact that they looked in
his glider would otherwise make this a close case, the reality that the Duke Defendants
had a separate federal obligation to investigate the circumstances surrounding a flight
they deemed to be suspicious weighs against construing their actions as those of the
state. Moreover, state law causes of action against the Duke Defendants for reporting
Mr. Fleming’s flight to local law enforcement are preempted by federal law. It is not for
this Court or Plaintiff to determine what the Duke Defendants may reasonably consider
to be suspicious and what they may or may not report to federal or local law
enforcement. A party with a federally imposed duty to report certain conduct to local law
enforcement cannot be held liable simply because local law enforcement subsequently
overreacts. Accordingly, the Duke Defendants’ motion for summary judgment (ECF No.
135) is GRANTED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 31, 2016
Greenville, South Carolina

33