Wingate v. Byrd et al

Filing 134

ORDER RULING ON REPORT AND RECOMMENDATIONS: The Court adopts Reports Two and Three and adopts Report One in part. It is, therefore,ORDERED that Defendant Weatherford's Motion for Summary Judgment (ECF No. 59 ) is GRANTED IN PART and DENIED IN PART. The Court denies Weatherford summary judgment on Plaintiff's § 1983 excessive force claim and State claims for wrongful death, survivorship, and civil conspiracy, and grants Weatherford summary judgment on Plaint iff's claim for Fourth Amendment knock-and-announce violations and civil conspiracy under § 1983. It is further ORDERED that Defendants Wayne Byrd, Darlington County Sherriffs Office, and County of Darlingtons Motion for Summary Judgment (E CF No. 64 ) is GRANTED these parties are therefore dismissed from this action. Likewise, it is ORDERED that City of Darlington, Darlington Police Department, and Clyde M. Sheppards Motion for Summary Judgment (ECF No. 63) is GRANTED these parties ar e therefore also dismissed from this action. Accordingly, only Plaintiff's claims against Weatherford survive. Specifically, her § 1983 claim for excessive force, as well as her State claims for civil conspiracy, wrongful death and survivorship. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 09/30/2016. (dsto, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
)
Civil Action No.: 4:13-3343-BHH
)
)
)
Plaintiff, )
ORDER AND OPINION
)
)
vs.
)
)
)
Wayne Byrd, both individually and in
)
his Official capacity as the Sherriff of
Darlington County; Darlington County )
)
Sherriff’s Office; The County of
)
Darlington; The City of Darlington
)
Police Department; The City of
Darlington; Ben Weatherford; Clyde M )
)
Shephard; And John Does 1-10,
)
Defendants. )
______________________________ )
Ernestine Wingate as the Personal
Representative of the Estate of Ernest
Russell,

This action arises out of the execution of a search warrant, resulting in the death
of Ernest Russell (“Russell”). On October 18, 2013, Plaintiff Ernestine Wingate
(“Plaintiff”), as personal representative of the estate of Russell, filed this 42 U.S.C.
§ 1983 action alleging Defendants violated Russell’s Fourth and Fourteenth Amendment
rights. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this
matter was referred to United States Magistrate Kaymani D. West, for consideration of
pretrial matters. The Magistrate Judge prepared three thorough Report and
Recommendations, addressing Defendants’ various motions for summary judgment. The
first Report and Recommendation, (“Report One”), recommended granting in part and

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denying in part Defendant Ben Weatherford’s (“Weatherford”) motion for summary
judgment. (ECF No. 116.) Specifically, the Magistrate Judge recommended granting
Weatherford summary judgment on Plaintiff’s § 1983 claim for Fourth Amendment
knock-and-announce violations based on qualified immunity. (Id. at 41.) However, she
recommended denying Weatherford summary judgment on Plaintiff’s Fourth Amendment
cause of action for excessive force and for all remaining causes of action. (Id. at 41–42.)
The second Report and Recommendation, (“Report Two”), recommended granting
Defendants Wayne Byrd, Darlington County Sherriff’s Office, and the County of
Darlington’s motion for summary judgment and dismissing these Defendants. (ECF No.
118.) The third Report and Recommendation, (“Report Three”), recommended granting
Defendants City of Darlington, Darlington Police Department, and Clyde M. Sheppard’s
motion for summary judgment and dismissing these Defendants. (ECF No. 119.)
Defendant Weatherford filed timely objections to Report One (ECF No. 125), and Plaintiff
filed timely objections to Reports One and Two (ECF Nos. 124; 126).
For the reasons set forth herein, the Court adopts Report One in part. Specifically,
the Court adopts the portion of Report One denying Weatherford summary judgment on
Plaintiff’s excessive force claims and claims for wrongful death, survivorship, and civil
conspiracy, and granting Weatherford summary judgment on Plaintiff’s claim for Fourth
Amendment knock-and-announce violations. However, the Court modifies Report One
by dismissing Plaintiff’s § 1983 conspiracy claim against Weatherford. The Court adopts
Reports Two and Three and dismisses Defendants Wayne Byrd, Darlington County

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Sherriff’s Office, County of Darlington, City of Darlington, Darlington Police Department,
and Clyde M. Sheppard from this action.
BACKGROUND AND PROCEDURAL HISTORY
The Report sets forth in exhaustive detail the relevant facts and standards of law,
and the Court incorporates them and summarizes below only in relevant part. Plaintiff
filed this matter on October 18, 2013, bringing § 1983 claims for: (1) unlawful search,
excessive force, and a violation of due process under the Fourth and Fourteenth
Amendments against all Defendants; (2) deliberate indifference against Defendants
Byrd, Darlington County Sherriff’s Office, and Darlington County; and, (3) conspiracy
against the state actors and civil conspiracy against the non-state actors . (ECF No. 1-1
¶¶ 46–47, 56–57, 67–68.) Plaintiff also brings claims under South Carolina law for: (1)
civil conspiracy; (2) negligence and gross negligence against Defendants Byrd,
Darlington County Sherriff’s Office, Darlington County, Darlington County Police, and the
City of Darlington; (3) wrongful death; and (4) a “survivorship action.” (Id. ¶¶ 64–66, 73–
78.)
On January 12, 2016, Defendant Weatherford moved for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 59.) On January
13, 2016, the remaining Defendants also moved for summary judgment. (ECF Nos. 63;
64.) After consideration of Plaintiff’s response filed in opposition to these motions for
summary judgment (ECF No. 76) and Defendants’ replies (ECF Nos. 80; 82), the
Magistrate Judge prepared three thorough Report and Recommendations. (ECF Nos.

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116; 118; 119.) The Court has reviewed the objections to the Reports,1 and finds them to
be largely without merit. Therefore, it will enter judgment accordingly.2
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight. The responsibility for making a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of any portions of the Report
and Recommendation to which a specific objection is made. The Court may accept,
reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge
or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. §
636(b)(1). The Court need not conduct a de novo review when a party makes only
“general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate
Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
DISCUSSION
A.

Report One

In Report One, the Magistrate Judge recommended granting Defendant
Weatherford summary judgment on Plaintiff’s § 1983 claim for Fourth Amendment
knock-and-announce violations based on qualified immunity. (Id. at 41.) However, she

1
The parties have only filed specific objections to Reports One and Two. (ECF Nos. 124; 125; 126.)
2
 As always, the Court says only what is necessary to address the parties’ objections against the already
meaningful backdrop of the thorough Reports of the Magistrate Judge; exhaustive recitation of law and fact
exists there. 

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recommended denying Defendant Weatherford summary judgment on Plaintiff’s Fourth
Amendment cause of action for excessive force and § 1983 conspiracy cause of action.
(Id. at 41–42.) She also recommended denying Weatherford summary judgment on
Plaintiff’s state law claims for civil conspiracy, wrongful death, and her survivorship
action. (Id. at 33–34.)
1.

Defendant Weatherford’s Objections

Defendant Weatherford objects to Report One on two grounds, arguing that the
Magistrate Judge erred in: (1) finding that a question of fact remains as to whether
Weatherford used excessive force in executing the search warrant; and, (2) finding that
Plaintiff’s civil conspiracy claim should survive summary judgment. (ECF No. 125 at 1–
13.) The Court addresses these objections in turn.
a.

Excessive Force Claim

Plaintiff alleges that Defendant Weatherford used excessive force by fatally
shooting Russell when executing the search warrant. (ECF No. 1-1 ¶ 46–47.) “The
Fourth Amendment governs claims of excessive force during the course of an arrest,
investigatory stop, or other ‘seizure’ of a person.” Riley v. Dorton, 115 F.3d 1159, 1161
(4th Cir. 1997) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)), abrogated on other
grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); see also Tennessee v. Garner, 471
U.S. 1 (1985). Thus, claims that law enforcement officers have used excessive force in
the course of an arrest or other seizure should be analyzed under the Fourth
Amendment and its reasonableness standard. See Graham, 490 U.S. at 395. In
determining whether the force used in the context of an arrest is reasonable under the

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Fourth Amendment, the Court must pay “careful attention to the facts and circumstances
of each particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. at 396 (citing Garner,
471 U.S. at 8–9). Moreover, “the ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968). “The
calculus of reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.” Id. at 396–97. And the “reasonableness” inquiry in the context of the
Fourth Amendment is an objective one: “the question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their intent or motivation.” Id. at 397.
Here, the Magistrate Judge found that the Graham factors did not conclusively
establish the reasonableness of Weatherford’s actions in using deadly force against
Russell. (ECF No. 116 at 29.) She found that the first factor—the severity of the crime—
weighed in favor of Russell. (Id.) As she correctly noted, Russell was suspected of taking
part in illegal gambling activities, a non-violent crime. (Id.) However, the Magistrate
Judge determined she could not weigh the second two Graham factors because there
remained genuine issues of material fact as to whether Russell posed a deadly threat to

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the officers and whether he was actively resisting arrest by arming himself with a firearm.
(Id.)
In finding a question of fact as to whether Russell was pointing and presenting a
firearm at the officers when they entered the building where the shooting occurred, the
Magistrate Judge cited “the lack of video evidence, coupled with Plaintiff’s ability to prove
absence of Russell’s DNA on the gun and the improbability that Russell was aiming
based on the gun’s location in relation to Russell’s body.” (Id. at 27.) She further found
that even if Russell had grabbed his gun, “a jury could find he was justified in arming
himself because of his fear of being robbed by someone other than police breaking and
entering the location.” (Id. at 28.) She concluded that whether Weatherford was justified
in using deadly force in this situation remains a question of fact. (Id. at 29.)
Weatherford first objects that the Magistrate Judge erred in finding an issue of
material fact as to whether Russell was pointing and presenting a firearm at the officers
when they entered the building to execute the search warrant. On this point, Weatherford
asserts that she disregarded the video evidence and failed to evaluate the totality of the
evidence before the Court. (ECF No. 125 at 1.) He contends that the Magistrate Judge
erred in stating “there is no footage of the shooting as it occurred” and ignored the fact
that Weatherford can be heard announcing “Sherriff’s Office!” when entering the building.
(Id. at 2.) He further contends that the video “shows that, as the second officer, Robert
McIntyre, entered the building and came around the left side of the first officer,
Weatherford, where he could now clearly see Ernest Russell, McIntyre dives defensively
to his left, toward the cover of a refrigerator, and raises his arm, firing upon Russell.”

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ECF No. 125 at 3.) According to Weatherford, “[t]he exercise of common sense leads to
the conclusion that McIntyre observed an immediate threat from Russell.” (Id.)
According to Weatherford, the video evidence, combined with the testimony from
the confidential informant and other officers at the scene, supports the conclusion that
Russell crouched behind the counter when the officers entered the building and came up
with a firearm in his hand. (ECF No. 125 at 3.) He cites the scene photographs as further
support of this conclusion, noting that the photographs depict the close proximity of the
gun to Russell’s body after his death. (Id. at 3–4.) Weatherford also contends that the
Magistrate Judge improperly relied on the deposition testimony of Plaintiff’s proposed
expert witness, Ken Katsaris (“Katsaris”), in reaching her conclusions. (Id. at 4.)
The Court has reviewed the evidence in the record, including the video evidence.
Contrary to Weatherford’s assertions, the Court finds that the Magistrate Judge
thoroughly and accurately recounted the video evidence depicting the execution of the
search warrant as recorded by a chest camera worn by Officer Specht. She summarized
the video as follows:
During daylight hours, officers exited a vehicle and approached the side of
a white building with two doors. The first door (the right-side door) had a
glass or plastic storm door covering a wooden door. Officers opened the
first door, and one officer (now known to be Defendant Weatherford)
attempted to twist the inside wooden door’s knob but finds it is locked. This
officer then walks toward the other side door (the left-side door). At this
point in the video, Officer Specht is behind two officers, and the first in line
is wearing a vest with “SHERIFF” written across the back. One officer, the
second officer (now known to be Officer McIntye), hits the locked wooden
door with a battering ram, but the door does not open. This officer has
“POLICE” written across the back of his vest. The second officer runs to
the left-side door where the first officer is approaching. Based on the countdown clock on the video, this initial entry—the time officers exited the
police vehicle to the time the first and second officers entered the left-side
door—took approximately 20 seconds.

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The first officer (Defendant Weatherford) enters, without knocking, through
the left-side door. The video does not depict images from inside the house
in the moments immediately following the first officer’s entry. Next, the two
officers (Officers McIntyre and Specht) following the first officer also enter
the location through this door. Loud shouting is heard as the second officer
enters into the location, and the third officer is immediately behind him. The
video depicts a woman (the confidential informant) standing towards the
front of the room, and the officers pass her during their entry. More yelling
is heard, and several shots are fired. It is unclear from the video who fired
the shots or the circumstances leading to the firing of the shots. One
officer, with “SHERIFF” written on the front and back of his vest, looked at
the camera and said, “he pointed a gun at me.” Based on the countdown
clock on the video, 46 seconds elapsed between time of both officers’ entry
until the declaration by the officer (Defendant Weatherford).
After the shooting, the officers re-enter the location, and one officer says,
“where’s the gun now?” Russell is seen sitting or slumped behind a
counter, and there is black gun lying on the counter to the left of where
Russell’s body is resting. One of the officers then goes outside and reenters with a camera. Officer Specht then surveys the room and takes
several photographs. Five video poker machines are seen lining one of the
walls of the room.
(ECF No. 116 at 3–4.)
The Court agrees with the Magistrate Judge’s account of the video. Because the
video is from the recording of Officer Specht’s chest camera, the viewer is necessarily
limited to what was observed and heard by Officer Specht. Officer Specht appears to
have entered the building just before the shots were fired. However, as stated by the
Magistrate Judge, “[i]t is unclear from the video who fired the shots or the circumstances
leading to the firing of the shots.” (ECF No. 116 at 4.) The video is very shaky during the
shooting. The Court agrees with Weatherford that for a brief moment, the video displays
what appears to be Russell’s head behind the counter, with the rest of his body hidden.
However, such body language equally supports the conclusion that Russell was

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shielding himself from the officers’ sudden entry, as it does the conclusion that Russell
was attempting to grab a firearm. The Court also agrees with Weatherford that the video
depicts, for a brief moment, an officer diving down toward the refrigerator. However, it is
unclear from the video whether the officer is firing upon Russell. In addition, such body
language equally supports the conclusion that the officer was diving down to avoid
getting shot in the back by Weatherford as Weatherford was firing at Russell, as it does
the conclusion that the officer was avoiding “an immediate threat from Russell.” (Id.)
Further, while the Court agrees with Weatherford that it appears he announced
“Sherriff’s Office” upon entering the building, the sound is muffled. The Court is not
convinced that Weatherford’s statement upon entering the building is an established fact.
The Court also finds it was proper for the Magistrate Judge to consider the
testimony of Katsaris in finding an issue of fact as to whether Russell was aiming a gun
when Weatherford fired at Russell. Katsaris offered testimony as Plaintiff’s proposed
expert witness based on his experience in law enforcement training and as a crime
scene investigator. (ECF No. 133-1, Katsaris Dep. 16:1-21, 37:25-38:1-2.) Upon
examining the crime scene photos, Katsaris opined that the gun was “far away” from
Russell’s body and not where investigators would expect it to be had Russell held the
gun and raised it in the moments before he was shot. (Id., Katsaris Dep. 37:25-38:1-17.)
Here, Weatherford argues that such testimony is not needed nor allowed where
the expert is testifying on the credibility of other witnesses and on “matters of common
observation in which a judge and jury can determine through their own eyes and their
common sense.” (ECF No. 125 at 4.) The Court does not find that the testimony

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highlighted above expressly comments upon the credibility of any witnesses, nor does
the testimony invade the province of the factfinder. Such evidence is admissible under
Federal Rule of Evidence 702. Katsaris’ experience in crime scene investigations
renders his testimony on the position of the gun helpful to the factfinder and beyond the
common knowledge of a layperson. See F.R.E. 702 (Rule 702(a) permits expert
testimony if the expert’s “knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue”);  Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055
(4th Cir. 1986) (“Rule 702 makes inadmissible expert testimony as to a matter which
obviously is within the common knowledge of jurors.”).
Weatherford cites a Sixth Circuit case, Gaddis v. Redford Township, 364 F.3d 763
(6th Cir. 2004), for the proposition that the evidence available in the instant matter is
sufficient to find no material dispute of fact that Russell presented a gun at Weatherford.
In Gaddis, the court held that officers acted reasonably when using deadly force to seize
a mentally impaired man who allegedly threatened officers with a knife during a traffic
stop. 364 F.3d at 772–777. Although a dashboard camera recorded the interaction, it
was of such “low quality,” that the court could not determine whether the suspect actually
had the knife as the officers claimed. Id. at 773. The court noted that “[s]ince [the
decedent] could not testify, the only relevant evidence is the videotape and the testimony
of the four officers.” Id. The court found that the body language of the officers as
depicted in the video reinforced the officers’ testimony that there was a knife. Id. In
addition, the video depicted the suspect “react[ing] violently: he wheeled and struck at
[an officer] with his right, then his left hand.” Id. The court found the suspect’s strike “was

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a windmilling motion arguably suggestive of an attempt to stab with a knife,” and
concluded that “[a]ll admissible evidence in the case points to the conclusion that the
knife was present.” Id.
A similar conclusion is not warranted here, where there is evidence disputing the
assertion that Russell was presenting the gun. The Gaddis case presents the legal
conclusion that Weatherford seeks, but the facts are readily distinguishable. As the
Magistrate Judge noted, Plaintiff presented evidence that a post-incident investigation
did not reveal any of Russell’s DNA on the gun. (ECF No. 76-14.) In addition, Katsaris’s
testimony disputes the likelihood that Russell was aiming the gun based on the gun’s
location in relation to Russell’s body. Finally, for the reasons stated above, the video
evidence, when viewed in the light most favorable to the Plaintiff, does not establish that
Russell was pointing and presenting a firearm at the officers. Unlike in Gaddis, Russell’s
head is seen only for the briefest of moments—the Court does not have the benefit of
observing Russell’s body language throughout his interaction with the officers, and the
Court is not permitted to draw any inferences in the movant’s favor at this procedural
stage.
Weatherford’s final objection related to the excessive force claim is that the
Magistrate Judge improperly incorporated the knock and announce requirement into the
excessive force analysis, “essentially finding that Weatherford ‘teed up’ the confrontation
with an armed Ernest Russell.” (ECF No. 125 at 7.) He asserts that the inquiry here “is
whether Weatherford acted reasonably in employing force,” and that it is irrelevant
whether Russell acted reasonably in arming himself. (Id. at 7–8.)

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After finding a genuine issue of material fact as to whether Russell was presenting
and pointing a gun during the incident, the Magistrate Judge found that the officers’
failure to comply with the knock and announce requirement “contributed to the perilous
situation.” (ECF No. 116 at 28.) Her reasoning appears to be that, given the manner in
which the officers entered the building, “a reasonable officer would expect Mr. Russell to
defend himself.” (Id.) The Magistrate Judge concluded that even if Russell had grabbed
his gun, “a jury could find he was justified in arming himself because of his fear of being
robbed by someone other than police breaking and entering the location.” (Id.)
The Court agrees with Weatherford that the events preceding the deadly shooting
should not have been considered in the excessive force analysis. The Fourth Circuit has
consistently found that pre-seizure conduct is irrelevant to the reasonableness inquiry in
an excessive force analysis. For example, in Greenidge v. Ruffin, 927 F.2d 789 (4th Cir.
1991), the Fourth Circuit considered whether a district court had properly excluded
evidence which established that prior to the time at which the plaintiff had been shot by a
police officer, the officer violated “standard police procedure for night time prostitution
arrests.” Id. at 791. Plaintiffs alleged that the officer “recklessly created a dangerous
situation during the arrest” by violating standard police procedures and that this violation
was probative on the issue of her reasonableness. Id. The trial court excluded evidence
of the officer’s alleged violation of police procedures immediately preceding the shooting.
Id. at 790. In affirming this exclusion, and holding that the evidence of the officer’s
alleged violations prior to the shooting was “not relevant,” the Fourth Circuit relied upon
the following reasoning in Graham: (1) The “reasonableness” of an officer’s particular

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use of force “must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight”; (2) “reasonableness” means “the standard
of reasonableness at the moment”; and (3) “split-second judgments” are often required to
be made. Id. at 791–792.
The Fourth Circuit reaffirmed Greenidge two years later in Drewitt v. Pratt, 999
F.2d 774 (4th Cir. 1993). In Drewitt, the court held that an off-duty plainclothes police
officer who failed to display his badge when attempting to stop a fleeing robbery suspect
was entitled to a qualified immunity defense. 999 F.2d at 780. Relying upon Greenidge,
the court held that the failure to display the badge (a requirement of state law) was
“irrelevant to the issue of whether at the moment of the shooting, [the officer] had
probable cause to believe that [the suspect] posed a threat of death or serious bodily
harm to him.” Id. at 779–780.
More recently, the Fourth Circuit has held that “[a] police officer’s pre-seizure
conduct, regardless of whether it was ill-advised or violative of law enforcement protocol,
is generally not relevant for purposes of an excessive force claim under the Fourth
Amendment which looks only to the moment force is used.” Gandy v. Robey, 520 F.
App'x 134, 142 (4th Cir. 2013). Greenidge, Drewitt, and Gandy make clear that the Court
is to focus only upon the reasonableness of the conduct at the moment Weatherford
made the decision to use deadly force. See also Elliott v. Leavitt, 99 F.3d 640, 642 (4th
Cir. 1996) (“Graham requires us to focus on the moment force was used; conduct prior to
that moment is not relevant in determining whether an officer used reasonable force.”).

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Thus, Weatherford’s alleged failure to comply with the knock and announce requirement
is not relevant here.  
However, such a finding does not resolve Plaintiff’s excessive force claim. For the
reasons discussed above, the Court has found a genuine issue of material fact as to
whether Russell was pointing and presenting a firearm at the time deadly force was used
against him. Thus, as the Magistrate Judge correctly noted, the second and third
Graham factors cannot be weighed at this point in the litigation. Because a question of
fact remains as to whether Russell posed a deadly threat to the officers when they
entered the building (second factor), and as to whether Russell was actively resisting
arrest by arming himself with a firearm (third factor), the Court cannot find as a matter of
law that Weatherford used an objectively reasonable amount of force when he used
deadly force against Russell.  See Graham, 490 U.S. at 396. Accordingly, the Court
denies Weatherford summary judgment on Plaintiff’s excessive force claim and overrules
his objection.
i.

Wrongful Death and Survivorship Action

The Court’s denial of summary judgment on the excessive force claim has
implications for Plaintiff’s wrongful death and survivorship actions under South Carolina
law.
South Carolina’s wrongful death statute provides that
Whenever the death of a person shall be caused by the wrongful act,
neglect or default of another and the act, neglect or default is such as
would, if death had not ensued, have entitled the party injured to maintain
an action and recover damages in respect thereof, the person who would
have been liable, if death had not ensued, shall be liable to an action for
damages, notwithstanding the death of the person injured, although the
death shall have been caused under such circumstances as make the

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killing in law a felony. In the event of the death of the wrongdoer, such
cause of action shall survive against his personal representative.
S.C. Code Ann. § 15-51-10.
South Carolina also provides a survivorship cause of action. The applicable
statute states that
Causes of action for and in respect to any and all injuries and trespasses to
and upon real estate and any and all injuries to the person or to personal
property shall survive both to and against the personal or real
representative, as the case may be, of a deceased person and the legal
representative of an insolvent person or a defunct or insolvent corporation,
any law or rule to the contrary notwithstanding.
S.C. Code Ann. § 15-5-90.
The Magistrate Judge found that because a genuine issue of material fact
precluded granting summary judgment on the excessive force claim, a question of fact
existed as to whether Russell would have been able to bring such a claim had he
survived. (ECF No. 116 at 34.) She further determined that whether Weatherford was
entitled to any statutory immunity provided under South Carolina law was a genuine
issue of material fact, given that “it appears that Defendant may have acted in a manner
that would deprive him of the immunity he would otherwise be granted.” (Id.)
Weatherford’s brief arguments for dismissal of Plaintiff’s state law wrongful death
claim are wholly based on the Court granting summary judgment on Plaintiff’s excessive
force claim. (ECF No. 125 at 10.) Because the Court has found the Magistrate Judge
appropriately denied summary judgment on the excessive force claim, Weatherford’s
arguments here do not warrant discussion. The Court agrees with the Magistrate Judge
that a genuine issue of material fact exists as to Plaintiff’s wrongful death claim and

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survivorship action, given the Court’s finding that Plaintiff’s excessive force claim should
survive summary judgment. Further, Weatherford makes no specific objections to the
Magistrate Judge’s reasoning on Plaintiff’s survivorship action—the Court finds that said
reasoning evinces no clear error. See Diamond, 416 F.3d at 315 (holding de novo review
unnecessary in the absence of a timely filed, specific objection). Accordingly, the Court
denies Weatherford’s motion for summary judgment as to the wrongful death claim and
survivorship action.
b.

Conspiracy Claims

The Court construes the Complaint to allege both a § 1983 conspiracy claim and
a claim for civil conspiracy under South Carolina law. (ECF No. 1-1 ¶¶ 67–72.)
i.

Conspiracy under § 1983

To establish a civil conspiracy under § 1983, plaintiff must show that defendants
acted in concert in furtherance of the conspiracy which resulted in plaintiff’s deprivation
of a constitutional right. Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir.
1996) (citing Hafner v. Brown, 983 F.2d 570, 577 (4th Cir. 1992)). Here, the Magistrate
Judge found that “Plaintiff has alleged enough facts that, if true, could amount to a claim
for conspiracy to deprive an individual of a constitutional right in violation of § 1983.”
(ECF No. 116 at 31.) She further found that because Plaintiff apparently conceded that
she cannot legally allege a violation of her rights as personal representative of the
estate, Plaintiff could only sue for violations of Russell’s constitutional rights. (Id.)

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Weatherford first argues that Plaintiff cannot pursue redress on Russell’s behalf
for constitutional violations that occurred only after Russell’s death.3 (ECF No. 125 at
10.) In her reply, Plaintiff concedes this fact. (ECF No. 133 at 14.) Indeed, it is well
established that section 1983 does not provide a cause of action on behalf of a
deceased for events occurring after death. See Guyton v. Phillips, 606 F.2d 248, 250
(9th Cir. 1979) (“[T]he Civil Rights Act, 42 U.S.C. §§ 1983 and 1985, does not provide a
cause of action on behalf of a deceased based upon alleged violation of the deceased's
civil rights which occurred after his death.”); Silkwood v. Kerr–McGee Corp, 637 F.2d
743, 749 (10th Cir. 1980) (rejecting a Bivens claim, holding: “We agree with the Ninth
Circuit that the civil rights of a person cannot be violated once that person has died.”);
Riley v. St. Louis County of Mo., 153 F.3d 627, 632 n.1 (8th Cir. 1998) (holding that
section 1983 does not provide a cause of action on behalf of a deceased for events
occurring after death); Estate of Morris ex rel. Morris v. Dapolito, 297 F. Supp. 2d 680,
691 n. 9 (S.D.N.Y. 2004) (referring to “the well established proposition stated in Ford v.
Moore, 237 F.3d 156, 165 (2d Cir. 2001), that . . . a dead person has no constitutional
rights[.]”).
However, Plaintiff argues in her reply that as personal representative of Russell’s
estate, she is “a proper party to bring the conspiracy claim arising from Weatherford’s
attempt to cover up his unlawful conduct.” (ECF No. 133 at 14.) She asserts that her
injury is her due process right of access to the courts. (Id.) Plaintiff acknowledges that
she has been able to file a suit to bring claims against Weatherford, but contends that

3
It is undisputed that the allegations of conspiracy concern conduct that occurred only after Russell’s
death. (See ECF No. 1-1 at 19–20, Compl. ¶ 68 (“Defendants conspired . . . to deprive Plaintiff and
Plaintiff’s decedent of their rights as well as their Constitutional rights by giving clearly false statements to
SLED during their official investigation.”).)

18

“his lack of candor regarding the last moments of Mr. Russell’s life has substantially
hampered Plaintiff’s ability to discover the truth and to pursue adequate redress for what
Mr. Russell’s family has lost.” (Id.) In support of her ability to bring a claim for conspiracy,
Plaintiff cites Love v. Bolinger, 927 F. Supp. 1131 (S.D. Ind. 1996), and Hickenbottom v.
Nassan, No. CIV.A. 03-223, 2007 WL 7753803 (W.D. Pa. Mar. 29, 2007). (Id.) Upon
review, the Court finds that these cases actually weigh against finding the existence of
such a claim here. In both cases, the court ultimately denied the plaintiffs’ right of access
claim, finding that they had not alleged facts sufficient to support such a claim.
Hickenbottom, 2007 WL 7753803, at *38; Love, 927 F. Supp. at 1138–1139.
In Hickenbottom, the court recognized that a personal representative “may bring a
claim for conspiracy if he can show that defendants’ alleged conspiracy violated his right
to due process by hampering his ability to bring his claims for wrongful death in court.”
2007 WL 7753803, at *37. The court went on to clarify, however, that “not every act of
deception in connection with a judicial proceeding gives rise to a constitutional violation.”
Id. (citing Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984), overruled on
other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005)). Similarly, the Love court
also acknowledged that a decedent’s estate could bring a cause of action for the alleged
cover-up of the circumstances of the decedent’s death “where the cover-up obstructs
legitimate efforts to vindicate the killing through judicial redress.” 927 F. Supp. at 1138
(citing Bell, 746 F.2d at 1261). However, the court noted “it is important to recognize that
‘there is no general constitutional or federal ‘right to truth.’” Id. (quoting Bolden v. Ramos
et al., No. 93 C 3416, 1996 WL 66135 at *11 (N.D. Ill., Feb. 13, 1996)).

19

In both cases, the courts discussed in detail the limitations of such a cause of
action, citing Bell as the exemplary case for this type of claim. Hickenbottom, 2007 WL
7753803, at *37; Love, 927 F. Supp. at 1138. In Bell, the Seventh Circuit Court of
Appeals held that a successful twenty-year cover-up of a police killing obstructed the
deceased’s survivors’ right of access to the courts. 746 F.2d at 1264. As the
Hickenbottom court notes, “[t]he holding in Bell was motivated in large part by the
egregious police conduct in that case and the extensive delay it caused.”  2007 WL
7753803, at *37 (citing Bell, 746 F.2d at 1264 (“our holding is limited to the particularly
egregious set of facts herein. . . . [T]he conspirators did everything in their power to
cover up and conceal the facts within their sole control.”). The Love court observed that
more recent Seventh Circuit cases have reached a different result from that in Bell,
consistently finding that the parties have failed to establish a sufficient denial of access.
927 F. Supp. at 1138; see Gibson v. City of Chicago, 910 F.2d 1510, 1523 (7th Cir.
1990) (finding that even where a plaintiff successfully alleges the filing of intentionally
false and inaccurate reports, he cannot state a claim for denial of access to the courts
without alleging some “concrete injury to the decedent’s survivors resulting from th[e]
alleged cover-up”); Thompson v. Boggs, 33 F.3d 847, 852-53 (7th Cir. 1994) (police
officers who omitted information from police reports did not deny access to court, since
facts known to plaintiff were sufficient to enable him to promptly file his lawsuit, unlike
Bell, “where the true facts were concealed thereby denying the plaintiffs the opportunity
to file a lawsuit until some twenty years after the fact”); Vasquez v. Hernandez, 60 F.3d
325, 329 (7th Cir. 1995) (holding that where the actual circumstances surrounding the

20

shooting were revealed publicly within six months of the incident, and plaintiffs were
granted access to records of investigation of the incident/cover-up, their constitutional
rights “were ultimately preserved”); Bolden, 1996 WL 66135, at *11 (finding that because
plaintiff was aware of alleged cover-up when filing complaint, “he was hardly deceived
into forgoing his legal remedies”).
In Hickenbottom, the court similarly noted that more recent cases have limited the
Bell holding to only the most egregious facts. 2007 WL 7753803, at *37; see Foster v.
City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (suggesting that the right of
access to the courts encompasses “a right to file an action, but not the right to proceed
free of discovery abuses after filing”); Estate of Smith v. Marasco, 318 F.3d 497, 511–12
(3d Cir. 2003) (“[O]nly prefiling conduct that either prevents a plaintiff from filing suit or
renders the plaintiff’s access to the court ineffective or meaningless constitutes a
constitutional violation.”); Kies v. City of Aurora, 149 F. Supp. 2d 421, 424 (N.D. Ill. 2001)
(“When there are no allegations indicating that a defendant’s cover-up prevented a
plaintiff from pursuing a tort action or that the value of such an action was reduced by the
cover-up, there is no basis for a § 1983 action because there has been no injury beyond
the underlying torts.”).
Here, the injuries alleged by Plaintiff in her § 1983 conspiracy claim fail to
establish that her claims against Defendants have been hindered or devalued to such an
extent that her constitutional rights have been violated. (See ECF No. 1-1, Compl. ¶¶
68–69.) Plaintiff filed her lawsuit two years after the alleged incident occurred, and there
is no indication that the delay was due to any actions by Defendants. While Plaintiff

21

makes vague references to her inability to “discover the truth and to pursue adequate
redress,” she does not point to any specific obstruction to her case allegedly caused by
Weatherford’s conduct. (ECF No. 133 at 14.) The Complaint alleges that the conspiracy
has prevented Plaintiff “from knowing the true circumstances and true culprits
responsible for the death, harms and losses of the Plaintiff and Plaintiff’s decedent,” but
the Court has found that fact-issues preclude summary judgment on Plaintiff’s claims for
excessive force and other causes of action against Weatherford. (See ECF No. 1-1 at
20, Compl. ¶ 69.) Thus, “this very opinion demonstrates that [Plaintiff] ha[s] been able to
develop the facts in this case quite effectively.” Marasco, 318 F.3d at 512 (finding alleged
cover-up did not prevent plaintiffs “from filing suit or render their access to the courts
ineffective or meaningless”).
In short, the Court finds that Plaintiff cannot establish any constitutional violation
from her purported denial of access to the courts and, therefore, grants summary
judgment on her § 1983 civil conspiracy claim.
ii.

Civil Conspiracy under State Law

Under South Carolina law, “[t]he tort of civil conspiracy has three elements: (1) a
combination of two or more persons, (2) for the purpose of injuring the plaintiff, and (3)
causing plaintiff special damage.” Hackworth v. Greywood at Hammett, LLC, 682 S.E.2d
871, 874 (S.C. Ct. App. 2009) (citing Vaught v. Waites, 387 S.E.2d 91, 95 (S.C. Ct. App.
1989)).
Here, the Magistrate Judge found that “the footage from the chest-cam is enough
evidence for Plaintiff to overcome Defendant Weatherford’s summary judgment motion

22

concerning civil conspiracy.” (ECF No. 116 at 32–33.) She explained that the officer’s
statements, when compared to the video evidence, created a question of fact as to
whether Defendants engaged in some sort of civil conspiracy. (Id. at 33.) She further
found that “[w]hether Plaintiff is able to establish the elements of this cause of action to a
jury’s satisfaction is not one for the court at this time.” (Id.)
Weatherford’s objection provides substantive arguments relating only to Plaintiff’s
§ 1983 conspiracy claim. In arguing that Plaintiff has failed to establish a claim for “civil
conspiracy,” he recites the elements required to establish civil conspiracy under § 1983.
(ECF No. 125 at 11 (citing Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir.
1996)).) Weatherford offers no basis to grant summary judgment on Plaintiff’s civil
conspiracy claim under state law and the Court has not independently found one. The
Court agrees with the Magistrate Judge that the video evidence does not necessarily
support Defendants’ version of the events at issue. Accordingly, the Court finds a
question of fact as to whether Defendants engaged in civil conspiracy and denies
Weatherford’s motion for summary judgment on the civil conspiracy claim under South
Carolina law. Weatherford’s objection is therefore overruled.
2.

Plaintiff’s Objections

Plaintiff partially objects to Report One, arguing that the Magistrate Judge erred in
finding that Weatherford is entitled to a qualified immunity defense on Plaintiff’s § 1983
claim for Fourth Amendment knock-and-announce violations. (ECF No. 124 at 1.) Citing
“key evidence” purportedly overlooked by the Magistrate Judge, Plaintiff asserts that no
reasonable officer in Weatherford’s position could have believed that Russell did not

23

have a legitimate expectation of privacy in the premises where the search warrant was
executed. (Id. at 2.) Plaintiff further argues that the Magistrate Judge erred in her
interpretation of the Fourth Circuit Court of Appeals case, U.S. v. Gray, 491 F.3d 138
(4th Cir. 2007), and in her application of the case to the present facts. (Id. at 9–12.)
Qualified immunity protects government officials performing discretionary
functions from suits for civil damages arising out of the exercise of their discretionary
functions, provided that their conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Slattery v. Rizzo,
939 F.2d 213, 216 (4th Cir. 1991) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The plaintiff’s rights must be established so clearly that a “reasonable official would
understand that what he is doing violates that right.” Slattery, 939 F.2d at 216 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Accordingly, ruling on a defense of
qualified immunity requires “(1) identification of the specific right allegedly violated; (2)
determining whether at the time of the alleged violation the right was clearly established;
and (3) if so, then determining whether a reasonable person in the [official’s] position
would have known that doing what he did would violate that right.” Pritchett v. Alford, 973
F.2d 307, 312 (4th Cir. 1992).
In addressing qualified immunity, the United States Supreme Court has held that
“a court must first determine whether the plaintiff has alleged the deprivation of an actual
constitutional right at all, and if so, proceed to determine whether that right was clearly
established at the time of the alleged violation.” Wilson v. Layne, 526 U.S. 286, 290
(1999); see also Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000).

24

Further, the Supreme Court held that “[d]eciding the constitutional question before the
qualified immunity question also promotes clarity in the legal standards for official
conduct, to the benefit of both the officers and the general public.” Wilson, 526 U.S. at
609. If the court first determines that no right has been violated, the inquiry ends there,
“because government officials cannot have known of a right that does not exist.”
Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir. 1998).
As an initial matter, the Court notes the thorough and detailed manner in which
the Magistrate Judge addressed Plaintiff’s claim for Fourth Amendment knock-andannounce violations. After providing a detailed factual background, the Magistrate Judge
skillfully summarized the parties’ arguments and the applicable law. (ECF No. 116 at 2–
6, 9–13.) She then thoroughly analyzed Plaintiff’s Fourth Amendment claim, first finding
that a question of fact remains concerning whether Russell had a legitimate expectation
of privacy in the location where this shooting occurred, and then concluding that
Defendants failed to comply with the knock and announce rule and no exception to this
rule applied here.4 (Id. at 13–24). The Magistrate Judge next determined, however, that
because a reasonable officer armed with the information Defendant Weatherford
possessed at the time of the search warrant’s execution would have reason to believe it

4
Weatherford did not file an objection to this aspect of the Magistrate Judge’s finding and the Court finds
her reasoning does not evidence clear error.  See Diamond, 416 F.3d at 315 (holding de novo review
unnecessary in the absence of a timely filed, specific objection). Specifically, the Magistrate Judge
correctly found that the officers’ conduct in failing to announce their presence and not waiting a reasonable
amount of time before entering the building violated the knock-and-announce rule. (ECF No. 116 at 23);
see United States v. Grogins, 163 F.3d 795, 797 (4th Cir. 1998) (“[T]he Fourth Amendment incorporates
the common law requirement that police officers entering a dwelling must knock on the door and announce
their identity and purpose before attempting forcible entry.” (quoting Richards v. Wisconsin, 520 U.S. 385,
387 (1997))). She further correctly determined that Defendants could not establish any exemption from the
rule based on exigent circumstances. (ECF No. 116 at 23); see Grogins, 163 F.3d at 797 (“In order to
justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing the destruction of evidence.” (quoting
Richards, 520 U.S. at 394)).

25

would be legal to dispense with the knock-and-announce requirement, Weatherford was
entitled to qualified immunity on this Fourth Amendment claim. (Id. at 34–39.) On this
point, she first found that a reasonable officer in Weatherford’s position would have
reason to believe the building was only an illegal gambling hall and not Russell’s private
residence. (Id. at 38.) Then, drawing upon the case law and the Gray decision in
particular, the Magistrate Judge found that a person operating a “solely illegal” business
in a commercial space would not have a legitimate expectation of privacy in that space.
(Id. at 39.)
While Plaintiff expressly objects to only the qualified immunity portion of Report
One, her arguments implicate the Magistrate Judge’s reasoning and findings as to other
aspects of the Fourth Amendment claim. Most significantly, Plaintiff has attached to her
brief a lease agreement naming “Ernest Russell” as the lessee of the property at which
the search warrant was executed, and argues that this document establishes that
Russell had a legitimate expectation of privacy in the location where the warrant was
executed.5 (ECF Nos. 124 at 3–4; 124-3.) As explained by the Magistrate Judge, this
finding is crucial because the “capacity to claim the protection of the Fourth Amendment
depends . . . upon whether the person who claims the protection of the Amendment has
a legitimate expectation of privacy in the invaded place.” (ECF No. 116 at 15 (citing

5
Plaintiff asserts that her counsel only just located the lease agreement and served a copy on Defendants
as soon as it was discovered, on September 15, 2016, as part of Plaintiff’s supplemental responses to
Defendants’ document requests. (ECF No. 124 at 3–4 n.1.) Given the relevance of the document, the
Court, in its discretion, will admit the document into the record. See Bennett v. Stirling, No. CV 2:13-3191RMG, 2016 WL 1070812, at *3 (D.S.C. Mar. 16, 2016) (“[T]he district court’s decision whether to consider
additional evidence is committed to its discretion, and any refusal will be reviewed for abuse.”) (citation
omitted).

26

Bonner v. Anderson, 81 F.3d 472, 475 (4th Cir. 1996) (quoting Rakas v. Illinois, 439 U.S.
128, 143, (1978)).)
The lease agreement, dated March 1, 2005, provides a lease term starting March
1, 2005, with no end date. (ECF No. 124-3 ¶ 1.) The “use of premises” paragraph states
that
The premises shall be used and occupied by Lessee and Lessee’s
immediate family, consisting of Ernest Russell ETC. Business, exclusively,
as a private single family dwelling, and no part of the Premises shall be
used at any time during the term of this Agreement by Lessee for the
purpose of carrying on any business, profession, or trade of any kind, or for
any purpose other than as a private single family dwelling. Lessee shall not
allow any other person, other than Lessee’s immediate family or transient
relatives and friends who are guests of Lessee, to use or occupy the
Premises without first obtaining Lessor’s written consent to such use.
(Id. ¶ 4.)
From this newly submitted piece of evidence, the Court concludes that Russell, at
a minimum, had the right to exclude others from the property at issue, and that he also
lawfully possessed and controlled that property as a tenant. See Rakas, 439 U.S. at 143
n.12 (explaining that a legitimate expectation of privacy means “the right to exclude
others” and that “one who owns or lawfully possesses or controls property will in all
likelihood have a legitimate expectation of privacy by virtue of this right to exclude”).
While Plaintiff asserts that the lease terms establish the building was used as a “private
single family dwelling,” the Court is not convinced this is an established fact, given that
Russell wrote the premises shall be used by “Ernest Russell ETC. Business.” (emphasis
added). However, such a finding is not necessary in order to conclude that Russell had a
legitimate expectation of privacy in the building. The lease agreement establishes what

27

the Magistrate Judge found to be “an outstanding question of fact,” (ECF No. 116 at 21),
namely, that Russell lawfully possessed and controlled the property. Accordingly, the
Court finds that Plaintiff has standing to assert Russell’s Fourth Amendment rights.
Although the lease agreement establishes Russell’s legitimate expectation of
privacy in the building at issue, it does not necessarily resolve the question of qualified
immunity. To determine whether Weatherford should be afforded qualified immunity for
Plaintiff’s Fourth Amendment claim, the Court must determine whether a reasonable
officer armed with the information Weatherford possessed at the time of the search
warrant’s execution would have believed that his actions were lawful. See Graham v.
Gagnon, No. 15-1521, 2016 WL 4011156, at *5 (4th Cir. July 27, 2016) (internal citations
omitted) (“In determining what conduct of Graham’s was known to the officers, we
consider only information actually possessed by the officer[s] at the critical time, or that
was then reasonably available to [them], and in light of any exigencies of time and
circumstance that reasonably may have affected the officer[s’] perceptions.”); Rowland v.
Perry, 41 F.3d 167, 173 (4th Cir. 1994) (“Though [the test] focuses on the objective facts,
the immunity inquiry must be filtered through the lens of the officer’s perceptions at the
time of the incident in question.”). Plaintiff has not given any indication that Weatherford
had knowledge of the lease agreement at the time of the incident and the Court finds no
support for such a conclusion in the record.
However, Plaintiff does not rely solely on this newly discovered evidence to argue
that Weatherford is not entitled to qualified immunity. She also asserts that that “[t]he
background investigation would have led a reasonable officer in Officer Weatherford’s

28

position to conclude he was approaching Mr. Russell’s private premises and that Mr.
Russell controlled access to the building.” (ECF No. 124 at 7.) The “background
investigation” Plaintiff refers to here was conducted by Sergeant Clyde Sheppard
(“Sheppard”) and included using a confidential informant and conducting surveillance of
the building at issue. Sheppard testified that Weatherford “helped [him] do some
surveillance.” (ECF No. 124-7 at 7, Sheppard Dep. 22:20–22.)
According to Plaintiff, the investigation would necessarily have revealed the
“domestic and personal items inside the building,” including, inter alia, a “pool table,”
“pots/pans/food/drink mix,” “television,” “children’s toys,” “numerous family photos on the
wall,” and Russell’s “child’s school work.” (ECF No. 124 at 6–7.) The Court has reviewed
the photos of the building’s interior submitted by Plaintiff and has observed the notated
items. (ECF No. 124-2.) While the Court agrees that such items are consistent with items
one could see in a person’s home or private space, they are also consistent with items
one could see in a person’s business establishment. This is particularly true when
considering the manner in which the items are displayed. For example, although the
building contains a refrigerator, the photo indicates it was almost entirely filled with cans
of Coca-Cola and other types of drinks. (Id. at 2.) Further, the photo of the bathroom
indicates there is no shower or bathtub of any kind. (Id. at 3.) Finally, the children’s toy
referenced by Plaintiff is a toy police truck that appears to be discarded—it sits near two
tires, a rag, and a cardboard box filled with unidentifiable items. (Id. at 4.)
The Court is not convinced that Weatherford’s participation in the background
investigation, even if such investigation did reveal the items mentioned by Plaintiff, would

29

have led a reasonable officer in Weatherford’s position to conclude he was approaching
Weatherford’s private residential premises. Indeed, the Court finds that a reasonable
officer could infer from the evidence revealed in the background investigation that the
building was only used as an illegal gambling hall. The photos of the building’s interior
included in the record reveal at least four visible video gambling machines and do not
indicate the operation of any legitimate business. (ECF No. 76-6 at 1.)
Plaintiff also cites the language in the search warrant as evidence that
Weatherford believed Russell to have control of the building. (ECF No. 124 at 8.) She
quotes the portion of the search warrant stating the warrant was to be delivered “to the
person in charge of the premises searched’ at the time of the search,” and asserts that
Weatherford must have believed Russell to be in charge given that only he and the
confidential informant were in the building when the search warrant was executed. (ECF
No. 124 at 8 (quoting 124-9 at 2).) However, Plaintiff conveniently omits the remaining
portion of the sentence that he quotes. This portion of the search warrant states, in its
entirety:
A copy of this Search Warrant shall be delivered to the person in charge of
the premises searched at the time of such search if practicable, and, if not,
to such persona [sic] as soon thereafter as practicable; in the event the
identity of the person in charge is not known or if such person cannot be
found after reasonable diligence in attempting to locate the person, a copy
shall be attached to a prominent place on such premises.”
(ECF No. 124-9 at 2.) When read in its entirety, the search warrant does not necessarily
suggest Weatherford believed Russell controlled the building. The search warrant
expressly contemplates that if the person in charge is not on the premises at the time of
the search, it can be delivered to the proper person “as soon thereafter as is practicable.”

30

(Id.) Thus, even if Weatherford knew that only Russell and the confidential informant
were inside the building at the time of the search, he could have intended to deliver the
search warrant to the person he believed to be in charge of the building after the search
was completed. The Court also notes here that the language of the search warrant
further supports finding that Weatherford believed the building was solely used for an
illegal gambling business. Under “description of property,” the warrant states: “DCDEU
monies, large amounts of U.S. currency, gaming machines, books records, receipts,
notes, ledgers, electronic devices and other papers related to illegal gaming and
gambling equipment.” (Id.)
Upon a thorough review of the evidence, the Court concludes that the Magistrate
Judge did not err in finding that a reasonable officer in Weatherford’s position would
have reason to believe the building was “only an illegal gambling hall” and was not
Russell’s private residence. (ECF No. 116 at 38.) Given this finding, the Court further
agrees with the Magistrate Judge’s conclusion that a reasonable officer in Weatherford’s
position would have reason to believe it would be legal to dispense with the knock-andannounce requirement.
As previously stated, the Magistrate Judge thoroughly analyzed the case law on
the issue of when an individual has a legitimate expectation of privacy under the Fourth
Amendment. She quoted Gray at length, including the court’s holding that “[t]o be
legitimate, an expectation of privacy must be objectively reasonable: it must flow from ‘a
source outside of the Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized and permitted by

31

society.’” Gray, 491 F.3d at 145 (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)).
Although Plaintiff argues otherwise, the Court finds that Gray supports the Magistrate
Judge’s findings as they relate to the qualified immunity issue.
In Gray, the defendant, Terrence A. Askew (“Askew”), moved to suppress
evidence obtained from an allegedly unlawful search of the apartment of his codefendant, Joshua Brent Gray (“Gray”). Id. at 142. To determine whether Askew
possessed a legitimate expectation of privacy in Gray’s residence, the court examined
the relationship between Gray and Askew and discussed Askew’s purpose for being at
the apartment when it was searched. The court determined that Askew and Gray’s
“relationship was a commercial, rather than social, one,” in which “Askew was selling
drugs out of Gray’s home.” Id. at 146–147. It concluded that “because Askew’s purpose
at [the residence] was patently commercial, he had no legitimate expectation of privacy
in Gray’s residence.” Id. at 154. While these facts admittedly differ somewhat from the
present matter, the Gray court’s general discussion of an individual’s expectation of
privacy in a nonresidential property is relevant and persuasive.
Specifically, the Gray court noted that
while expectations of privacy are at their apex in one’s home, they diminish
considerably in nonresidential property. An industrial complex does not, of
course, “share the Fourth Amendment sanctity of the home.” [Kyllo v. U.S.,
553 U.S. 27, 37 (2001)]. Rather, the “expectation of privacy in commercial
premises . . . is different from, and indeed less than, a similar expectation
in an individual's home.” Carter, 525 U.S. at 90 (quoting New York v.
Burger, 482 U.S. 691, 700 (1987)).

32

Id. at 145–146. The court later found that “those who venture forth to conduct illegal
business often do not hold a legitimate expectation of privacy in locations that are not
their own.” Id. at 146.
Plaintiff contends that to the extent Gray is applicable, it supports her position
because “the tenant in Gray successfully challenged the search and had illegally
obtained evidence suppressed.” (ECF No. 124 at 10.) While this is factually true, at the
time of the search, Weatherford had no reason to know that Russell was a tenant of the
building. Further, the tenant in Gray was successful in suppressing evidence obtained
from a warrantless search. Here, there is no question that Weatherford had a search
warrant and could lawfully enter the building. Accordingly, this aspect of Gray is not
applicable here.
Plaintiff further argues that unlike Askew in Gray, Russell had a “far greater
connection to the illegally searched premises.” (ECF No. 124 at 11.) However, for
reasons previously stated, the Court has determined that a reasonable officer in
Weatherford’s position would not have reason to believe the building was Russell’s
private residence. Thus, to the extent Plaintiff argues the “connection” in the present
matter establishes a more social connection between Russell and the building than that
in Gray, the Court has already found that it would be reasonable to believe the building
was commercial in nature, solely used for illegal gambling activity.
Finally, Plaintiff argues that “the fact that Officer Weatherford suspected Russell of
illegal activity on the premises cannot inevitably mean Mr. Russell lacked an expectation
of privacy in the building.” (ECF No. 124 at 12.) The Court agrees that if the property was

33

in fact Russell’s residence or used for the purpose of legitimate business, the mere fact
that illegal business was also being conducted would not necessarily negate any
expectation of privacy, to the extent such an expectation existed. However, here, the
Court has found that it would be reasonable for an officer in Weatherford’s position to
assume that the building was not Russell’s residence and was used solely for illegal
gambling. Accordingly, it would be reasonable for an officer in Weatherford’s position to
believe that, upon obtaining a search warrant, he could lawfully dispense with the knock
and announce rule. In so finding, the Court limits this holding to facts of this particular
case.
Notably, the limited authority Plaintiff cites on this issue is inapposite to this case.
Specifically, Plaintiff cites McDonald v. U.S., 335 U.S. 451, 453 (1948) and U.S. v.
Washington, 573 F.3d 279, 283 (6th Cir. 2009) for the proposition that “[t]he Fourth
Amendment’s protection against illegal searches ‘extends to the innocent and guilty
alike.’” (ECF No. 124 at 11.) In McDonald, the court essentially by-passed the issue of
whether the suspect had a legitimate expectation of privacy in the building searched, and
instead focused its finding of a Fourth Amendment violation on the fact that the officers
lacked a “compelling reason[] to justify the absence of a search warrant.” 335 U.S. at
454–455 (“We cannot allow the constitutional barrier [of a search warrant] that protects
the privacy of the individual to be hurdled so easily.”). Here, Weatherford obtained a
lawful search warrant prior to entering the building. In Washington, the court found that
“[i]n light of the fact that [the suspect] had been lawfully residing in the apartment for
several months, the notion that drug use or illegal activity eviscerates any right to

34

challenge a search cannot possibly be sustained.” 573 F.3d at 283 (emphasis added).
As stated practically ad nauseam, the Court has found that it would be reasonable for an
officer in Weatherford’s position to assume that the building was not Russell’s residence.
Thus, McDonald and Washington have no applicability to the present case.
In sum, the Court agrees with the Magistrate Judge’s conclusion that Weatherford
is entitled to qualified immunity of Plaintiff’s claim for knock-and-announce violations
under the Fourth Amendment. Accordingly, the Court grants summary judgment on this
claim and overrules Plaintiff’s objection.
B.

Report Two

In Report Two, the Magistrate Judge recommended granting Defendants Wayne
Byrd (“Byrd”), Darlington County Sherriff’s Office, and the County of Darlington’s motion
for summary judgment and dismissing these Defendants. (ECF No. 118.) Before
addressing Plaintiff’s specific objection to this Report, the Court will first review for clear
error the claims to which Plaintiff did not specifically object. See Diamond, 416 F.3d at
315 (holding de novo review unnecessary in the absence of a timely filed, specific
objection).
The Magistrate Judge first found that Byrd should not be liable for a violation of
the Fourth Amendment because “[u]ndisputed evidence indicates that any role [he]
played in this investigation was supervisory in nature” and there was no evidence
suggesting Byrd “had any participation” in the violation of Russell’s constitutional rights.
(ECF No. 118 at 9–10.) She therefore recommended granting summary judgment on
Plaintiff’s first cause of action for unlawful search, excessive force, and violation of due

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process against Byrd. Because the Court cannot find any evidence in the record
indicating that Byrd personally participated in the alleged violations of Russell’s Fourth
Amendment rights, summary judgment is proper here. Vinnedge v. Gibbs, 550 F.2d 926,
928 (4th Cir. 1977) (finding that in order for an individual to be liable under § 1983, it
must be affirmatively shown that the “official charged acted personally in the deprivation
of the plaintiff’s rights”); Bennett v. Georgetown Cty. Det., No. C.A. 2:10-0762, 2010 WL
5866595, at *4 (D.S.C. Nov. 4, 2010), report and recommendation adopted, 2011 WL
723131 (D.S.C. Feb. 23, 2011) (dismissing the plaintiff’s claims where plaintiff failed to
establish “any personal involvement in a tort of constitutional magnitude on the part of
any defendant”).
The Magistrate Judge next found that Plaintiff failed to establish a § 1983 claim for
deliberate indifference against Byrd, Darlington County Sherriff’s Office, and the County
of Darlington. She analyzed Plaintiff’s claim in detail, ultimately finding that: (1) Plaintiff
could not recover here under the theory of vicarious liability because Ҥ 1983 does not
recognize vicarious liability through the doctrine of respondeat superior”; (2) Plaintiff
failed put forth sufficient evidence to establish a claim for supervisory liability; and (3)
Plaintiff failed to establish a claim for municipal liability because she did not put forth
evidence demonstrating “the existence of a policy or a policy maker’s knowledge of a
deficient policy.” (ECF No. 118 at 10–16.)
The Magistrate Judge is correct that vicarious liability does not apply in § 1983
suits. See Vinnedge, 550 F.2d at 928 (“The doctrine of respondeat superior has no
application under [§ 1983].”). The Court further agrees with the Magistrate Judge’s

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finding that Plaintiff has failed to put forth evidence that would satisfy any of the three
elements necessary to establish supervisory liability. See Shaw v. Stroud, 13 F.3d 791,
801 (4th Cir. 1994) (to establish supervisory liability under § 1983, a plaintiff must
establish that: “(1) that the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of
constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that
knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization
of the alleged offensive practices’; and (3) that there was an ‘affirmative causal link’
between the supervisor’s inaction and the particular constitutional injury suffered by the
plaintiff”). Finally, the Court agrees with the Magistrate Judge’s finding that Plaintiff has
failed to produce any evidence that “the Sheriff’s Department or County maintained a
custom or usage of a policy or condoned a practice that was allegedly unconstitutional.”
(ECF No. 118 at 16.) Thus, Plaintiff’s claim for municipal liability against these
Defendants cannot survive summary judgment. See Spell v. McDaniel, 824 F.2d 1380,
1391 (4th Cir. 1987) (“Municipal fault for allowing [] a developed ‘custom or usage’ to
continue requires (1) actual or constructive knowledge of its existence by responsible
policymakers, and (2) their failure, as a matter of specific intent or deliberate indifference,
thereafter to correct or stop the practices.”).
The Magistrate Judge next correctly found that Byrd is entitled to qualified
immunity from any monetary relief claims brought against him in his individual capacity.
(ECF No. 118 at 16.) As previously stated, Plaintiff has failed to establish that Byrd
violated any of Russell’s constitutional rights—he is therefore entitled to qualified

37

immunity on Plaintiff’s § 1983 claims. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(finding qualified immunity appropriate where a defendant’s conduct does not violate a
clearly established constitutional right or the constitutional rights of which a reasonable
person would have known). The Magistrate Judge further correctly found that Byrd is
entitled to Eleventh Amendment immunity as an arm of the State. (ECF No. 118 at 18);
see McCall v. Williams, 52 F. Supp. 2d 611, 615 (D.S.C. 1999) (“As an arm of the State,
a deputy sheriff is entitled to Eleventh Amendment immunity from civil damages suits in
federal court, unless the State expressly waived this immunity.” (citations omitted)).
The Magistrate Judge next correctly found that Plaintiff’s state law causes of
action are barred by the South Carolina Tort Claims Act (“SCTCA”). After correctly noting
the applicability of the SCTCA to Plaintiff’s state tort claims, she found that certain
language in the statute rendered Defendants immune from suit. Specifically, S.C. Code
Ann. § 15-78-60(4) indicates that a governmental entity is not liable for a loss resulting
from “adoption, enforcement, or compliance with any law or failure to adopt or enforce
any law, whether valid or invalid, including, but not limited to, any charter, provision,
ordinance, resolution, rule, regulation, or written policies.” In addition, S.C. Code Ann.
§ 15-78-60(5) indicates that a governmental entity is not liable for loss resulting from “the
exercise of discretion or judgment by the governmental entity or employee or the
performance or failure to perform any act or service which is in the discretion or
judgment of the governmental entity or employee.”
The Magistrate Judge next found that Plaintiff’s claim for civil conspiracy under
State law could not survive summary judgment because she “failed to allege enough

38

facts against these Defendants that if true could amount to a claim for civil conspiracy.”
(ECF No. 118 at 21.) The Court agrees. As the Magistrate Judge noted, there is no
allegation that any of the moving Defendants here gave a false statement. Nor is there
any evidence demonstrating their participation in a conspiracy. Accordingly, summary
judgment is appropriate here.6
Finally, the Magistrate Judge found that Plaintiff could not establish a claim for
negligence or gross negligence against these Defendants. She found that Plaintiff
alleged a “supervisory-like claim” here and found that Plaintiff failed to offer any evidence
demonstrating that these Defendants had “reason and opportunity to control Defendant
Weatherford or another officer.” (ECF No. 118 at 23–24.) The Court agrees that Plaintiff
has failed to establish a claim for supervisory negligence on the part of these
Defendants—there is no evidence indicating that these Defendants were put on notice
that one of the officers participating in the investigation or warrant execution created an
undue risk of harm to the public. See, e.g., Bank of New York v. Sumter Cty., 691 S.E.2d
473, 478 (S.C. 2010) (affirming summary judgment where there was no evidence that
the South Carolina Judicial Department knew or should have known employees posed
an “undue risk of harm to the public”). Accordingly, summary judgment is appropriate
here.
1.

Plaintiff’s Objections

Plaintiff partially objects to Report Two, arguing that the Magistrate Judge erred in
finding that Defendants Wayne Byrd and Darlington County Sheriff’s Office (“Employing
Defendants”) are entitled to summary judgment on Plaintiff’s claim for negligence and

6
The Court also notes here that Plaintiff’s § 1983 conspiracy claim fails against these Defendants for the
same reasons as that given in the Court’s discussion of the claim in Report One.

39

gross negligence under the SCTCA. (ECF No. 126 at 1.) Plaintiff contends that in
analyzing this claim, the Magistrate Judge ignored Weatherford’s alleged negligent and
grossly negligent conduct and focused only on the allegations of negligent policymaking
and training. (Id. at 2.) She contends that under S.C. Code Ann. § 15-78-70, Employing
Defendants are “responsible for all negligent or grossly negligent acts Officer
Weatherford committed in the moments before Mr. Russell’s death.” (Id. at 3.)
Plaintiff is correct in that the South Carolina Tort Claims Act (SCTCA) waives the
sovereign immunity of state agencies and entities for the purpose of allowing tort claims
against those entities based on the actions of their employees. The statute covers
employee conduct insofar as it is not “outside the scope of his official duties or which
constitutes actual fraud, actual malice, intent to harm, or a crime involving moral
turpitude.” S.C. Code Ann. § 15-78-60(17). However, South Carolina law also allows a
cause of action based on the negligence of state agencies and entities in their hiring,
supervision, or training of an employee. James v. Kelly Trucking Co., 661 S.E.2d 329,
330 (S.C. 2008) (“[A] plaintiff may claim that the employer was itself negligent in hiring,
supervising, or training the employee, or that the employer acted negligently in entrusting
its employee with a tool that created an unreasonable risk of harm to the public.”).
The Magistrate Judge interpreted the Complaint as alleging the latter type of
claim, finding that “Plaintiff couches a supervisory-like claim against Defendant Byrd,
Defendant Darlington County Sheriff’s Office, and Defendant Darlington County.” (ECF
No. 118 at 22.) To make this finding, the Magistrate Judge quoted the allegations made
in the Complaint under this cause of action. (Id.) For example, Plaintiff alleges, inter alia,

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that Defendants “departed from the duties of care required by law enforcement officers
and the agencies that hire, train and employ these officers and were thereby negligent,
careless, grossly negligent, reckless and acted in violation of the duties owed to Ernest
Russell . . .” (Id., ECF No. 1-1 ¶ 65 (emphasis added)). The Magistrate Judge then
correctly applied the four-part test outlined by the South Carolina Supreme Court to
determine whether an employer may be liable for negligent supervision if an employee
intentionally harms another. (ECF No. 118 at 23 (citing Degenhart v. Knights of
Columbus, 420 S.E.2d 495, 496 (S.C. 1992)).)
Although Plaintiff now contends that this cause of action also alleges negligent
and grossly negligent conduct by Weatherford, the Court finds no support for this
assertion in the Complaint or elsewhere in the record. The parties’ briefs before the
Magistrate Judge do not give any indication that Plaintiff intended this type of claim. As
pleaded, the claim clearly alleges supervisory-type negligence. There are no vicarious
liability allegations present under this cause of action—rather, the Complaint alleges only
that Defendant Byrd, Defendant Darlington County Sheriff’s Office, and Defendant
Darlington County breached their duties of care. (ECF No. 1-1 ¶ 65.)
The Magistrate Judge correctly found there was no evidence to support a claim
for negligent supervision and Plaintiff expressly states that she does not object to this
finding. (ECF No. 118 at 26; 126 at 2.) Because the Court finds no basis to construe the
allegations under this cause of action beyond the scope discussed by the Magistrate
Judge, summary judgment is appropriate on this claim. Plaintiff’s objection is overruled.

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C.

Report Three

In Report Three, the Magistrate Judge recommends granting Defendants City of
Darlington, Darlington Police Department, and Clyde M. Sheppard’s (“Sheppard”) motion
for summary judgment and dismissing these Defendants. (ECF No. 119.) Plaintiff has not
filed any objections to this Report. The Court therefore reviews the Magistrate Judge’s
findings for clear error. See Diamond, 416 F.3d at 315.
The Magistrate Judge first found that Plaintiff could not sustain any § 1983 claims
against Sheppard under a theory of bystander liability. (ECF No. 119 at 12.) She
correctly found that such a theory failed because there was no evidence indicating
Sheppard knew that fellow officers were violating Russell’s constitutional rights. See
Randall v. Prince George’s Cty., Md., 302 F.3d 188, 204 (4th Cir. 2002) (“[A]n officer
may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a
fellow officer is violating an individual’s constitutional rights; (2) has a reasonable
opportunity to prevent the harm; and (3) chooses not to act.”).
She next correctly found that Plaintiff’s § 1983 claims against Defendants City of
Darlington, Darlington Police Department, and Sheppard could not survive to the extent
they were based on the doctrines of vicarious liability and respondeat superior. (ECF No.
119 at 12); see Vinnedge, 550 F.2d at 928 (“The doctrine of respondeat superior has no
application under [§ 1983].”). She further correctly found that Plaintiff did not bring a
§ 1983 cause of action for supervisory liability against these Defendants, but rather,
appeared to allege a supervisory claim against City of Darlington and Darlington Police
Department in her third cause of action for negligence and gross negligence under South

42

Carolina common law. (ECF No. 119 at 13–14.) Similar to her analysis of this claim in
Report Two, the Magistrate Judge found that Plaintiff failed to offer any evidence
indicating that these Defendants were put on notice that one of the officers participating
in the investigation or warrant execution created an undue risk of harm to the public.
See, e.g., Bank of New York v. Sumter Cty., 691 S.E.2d 473, 478 (S.C. 2010) (affirming
summary judgment where there was no evidence that the South Carolina Judicial
Department knew or should have known employees posed an “undue risk of harm to the
public”). She correctly found that this lack of evidence rendered summary judgment
proper on Plaintiff’s “purported causes of action for negligent supervision and negligent
training.” (ECF No. 119 at 18.)
The Magistrate Judge next found that Defendants were agents or employees of
the State of South Carolina when acting in their official capacity. She determined that
Defendants, in their official capacities, are immune from suit under the Eleventh
Amendment. The Court is not convinced that a city’s police department is necessarily
entitled to Eleventh Amendment protection. Compare Mickle v. Ahmed, 444 F. Supp. 2d
601, 612 (D.S.C. 2006) (“A municipal police officer does not qualify for Eleventh
Amendment immunity.”); Nelson v. Strawn, 897 F. Supp. 252, 258 (D.S.C. 1995)
(holding that the Moncks Corner Police Department, and its officers acting in their official
capacities, are not shielded from suit by the Eleventh Amendment) (vacated on other
grounds); with Dixon v. Baltimore City Police Dep’t, 345 F. Supp. 2d 512, 513 (D. Md.
2003) (dismissing the plaintiff’s complaint against the Baltimore City Police Department
because the police department was a state agency and Maryland had not waived its

43

Eleventh Amendment immunity to suit in federal court). However, Plaintiff did not
respond to this point in her opposition to Defendants’ motion for summary judgment, nor
in her objections. Accordingly, the Court finds Plaintiff has conceded this point. Also, as
demonstrated in this Order, the Court finds that Plaintiff’s federal claims fail against these
Defendants regardless of any alleged immunity under the Eleventh Amendment.
Next, based upon her previous findings that Plaintiff failed to establish that
Defendants’ conduct could have violated Russell’s constitutional rights, the Magistrate
Judge correctly concluded that these Defendants were entitled to qualified immunity on
the alleged constitutional violations. (ECF No. 118 at 16.) See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (finding qualified immunity appropriate where a defendant’s
conduct does not violate a clearly established constitutional right or the constitutional
rights of which a reasonable person would have known).
Turning to Plaintiff’s State claims, the Magistrate Judge correctly found that these
causes of action are barred by the SCTCA. After noting the applicability of the SCTCA to
Plaintiff’s state tort claims, she correctly found that certain language in the statute
rendered Defendants immune from suit. Specifically, S.C. Code Ann. § 15-78-60(5)
indicates that a governmental entity is not liable for loss resulting from “the exercise of
discretion or judgment by the governmental entity or employee or the performance or
failure to perform any act or service which is in the discretion or judgment of the
governmental entity or employee.”
Based on the foregoing, the Magistrate Judge correctly recommended that
Defendants City of Darlington, Darlington Police Department, and Clyde M. Sheppard’s

44

motion for summary judgment be granted and these Defendants be dismissed as parties
to this action.
CONCLUSION
After careful consideration of the relevant motions, responses, and objections, the
Court adopts Reports Two and Three and adopts Report One in part. It is, therefore,
ORDERED that Defendant Weatherford’s Motion for Summary Judgment (ECF No. 59)
is GRANTED IN PART and DENIED IN PART. The Court denies Weatherford summary
judgment on Plaintiff’s § 1983 excessive force claim and State claims for wrongful death,
survivorship, and civil conspiracy, and grants Weatherford summary judgment on
Plaintiff’s claim for Fourth Amendment knock-and-announce violations and civil
conspiracy under § 1983. It is further ORDERED that Defendants Wayne Byrd,
Darlington County Sherriff’s Office, and County of Darlington’s Motion for Summary
Judgment (ECF No. 64) is GRANTED—these parties are therefore dismissed from this
action. Likewise, it is ORDERED that City of Darlington, Darlington Police Department,
and Clyde M. Sheppard’s Motion for Summary Judgment (ECF No. 63) is GRANTED—
these parties are therefore also dismissed from this action. Accordingly, only Plaintiff’s
claims against Weatherford survive. Specifically, her § 1983 claim for excessive force, as
well as her State claims for civil conspiracy, wrongful death and survivorship.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
Greenville, South Carolina
September 30, 2016

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