Good v. Union, City of et al

Filing 98

ORDER and OPINION granting in part and denying in part 69 Motion for Summary Judgment as set out. Signed by Honorable Bruce Howe Hendricks on 9/25/18.(alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION

George McBeth, Sr., as Personal
Representative for the Estate of Jackie
McBeth,

)
)
)
)
Plaintiff, )
vs.
)
)
City of Union, David Taylor, Wendy
)
Childers, Brandon Vaughn, James
)
Johnson, Roger Hill, and Roger Suber,
)
)
Defendants. )
_________________________________ )

Civil Action No. 7:15-1473-BHH

Opinion and Order

This matter is before the Court on Defendants’ David Taylor, Wendy Childers,
Brandon Vaughn, James Johnson, Roger Hill, and Roger Suber’s (collectively
“Defendants”)1 motion for summary judgment. (ECF No. 69.) For the reasons set forth in
this order, Defendants’ motion is granted in part and denied in part.
BACKGROUND
Plaintiff George McBeth, Sr., as personal representative for the estate of Jackie
McBeth (“Plaintiff”), pursuant to 42 U.S.C. § 1983 (“§ 1983”) and the South Carolina
Tort Claims Act (“SCTCA”), asserts three causes of action against the Union County
Sheriff’s Office (Sheriff David Taylor is sued in his representative capacity), and two
causes of action against five Sheriff’s deputies2—Wendy Childers, Brandon Vaughn,

1

Defendants Kevin Powers, Scott Hood, Cedric Dunn, and Douglas Spencer were previously dismissed,
with prejudice, by stipulation on September 22, 2017. (See ECF No. 66.)
2
For ease of reference and understanding, the Court will refer to all subordinate employees of the Union
County Sheriff’s Office by the term “Deputy”—as distinct from “Officer,” for employees of the City of Union
Police Department—even though that term may not comport with their official rank, such as “Corporal,”
“Sergeant,” etc.

1

James Johnson, Roger Hill, and Roger Suber—in their individual capacities. (See
Compl. ¶¶ 4, 6, 15-33, ECF No. 1.) The parties dispute whether the complaint also
states a cause of action, under § 1983, against David Taylor in his individual capacity
for maintaining a municipal policy and/or custom and practice that fails to train deputies
in the appropriate procedures for taking mentally ill citizens into custody. (See Defs.’
Reply, ECF No. 92 at 10; Pl.’s Sur-Reply, ECF No. 94 at 1-4.) These claims arise out of
the death of Jackie McBeth (“McBeth”), Plaintiff’s son, on April 10, 2013, while in police
custody.
The facts leading up to the restraint of McBeth are not in material dispute. On
April 10, 2013, McBeth was driving a vehicle in the City of Union, South Carolina, when
he struck the rear of another vehicle and a collision occurred. McBeth received a blow
to his head during the collision, which potentially contributed to his apparent state of
mental confusion. McBeth’s brother, George McBeth, Jr., was a passenger in the
vehicle driven by McBeth and was knocked unconscious. Shortly after the collision
occurred, Officer Scott Hood of the City of Union Police Department (“CUPD”), was
travelling on Highway 176 toward Hart Street and received a call from dispatch about
the collision. Officer Hood was in the process of beginning his investigation and
understood there was a subject who was unresponsive in the parking lot of a
convenience store. Officer Hood asked for EMS to be dispatched and observed Officer
Kevin Powers of the CUPD driving through the intersection of Highway 176 and turning
onto Hart Street.
After turning onto Hart Street, Officer Powers observed McBeth, a black male
weighing approximately 255 pounds, on top of a white male subject, repeatedly hitting

2

the subject in the head. Officer Powers exited his vehicle to intervene and a struggle
ensued between McBeth and Powers. Officer Powers noted that McBeth did not appear
to be in his right mind because of the expression on his face and the look in his eyes.
Prior to the physical confrontation, McBeth was also observed engaging in inexplicable
behavior at the scene, such as punching the window of a truck parked nearby, and
quoting random scripture passages from the Bible. Officer Powers used his Taser (in
probe mode), which had no appreciable effect on McBeth, and attempted to use Freeze
+ P spray, which McBeth blocked with his hand. The struggle between Powers and
McBeth was ongoing when Officer Hood came to Powers’ aid and attempted to control
McBeth. Officer Hood deployed his Taser (in probe mode) on McBeth, jumped on
McBeth from behind, and placed his arm around McBeth’s neck, pulling him off of
Officer Powers and to the ground.
At this point, Officer Powers’ dash cam video (“Powers Video”) begins to record
some of the struggle.3 (See Powers Video, ECF Nos. 87-31.) McBeth, Powers, and
Hood appear in the lower left corner of the screen at timestamp 2:00 of the video. (Id.)
The utility of the video is limited, however, by the fact that the hood of the police cruiser
blocks view of the area on the ground where the three men are struggling. At first,
McBeth is face down to the ground, whether laying on his stomach or attempting to
crawl, with the two officers on top of him trying to restrain him. (Id.) Officer Powers
deploys his Taser (in drive-stun mode) on McBeth numerous times—by his own

3

A helpful summary, albeit from Plaintiff’s perspective and including some inferences drawn by counsel,
of the series of events depicted in the three available videos (ECF Nos. 87-30, 87-31, 87-32) can be
found at exhibit 28 to Plaintiff’s opposition. (ECF No. 87-29.) The timeline provided in the exhibit crossreferences the events as they happen in the videos from different vantage points, and itemizes them by
their corresponding timestamps. The timestamps of the videos are idiosyncratic and have no relationship
to one another, or to the actual time of day that the events occurred.

3

description, “every time [McBeth] tried to get up.” (See Powers Dep. 29:8-30:14, ECF
No. 87-7 at 4-5.) At 3:51 of the Powers Video, McBeth’s leg is raised into the air, and
the position of his foot indicates that he is now on his back. (ECF No. 87-31.) Officer
Powers was able to handcuff McBeth with his hands in front. (Powers Depo. 30:1831:16, ECF No. 87-7 at 5-6.)
The parties dispute the manner and degree of force used by police in restraining
McBeth, and which officers and deputies were actually involved in physically restraining
him. As already noted, certain aspects of the incident are captured on video. Eventually,
Powers and Hood together subdued McBeth in a supine position, with Powers leaning
his body weight on McBeth’s upper legs and abdominal region (where McBeth’s hands
are shackled), and Hood laying parallel to McBeth, their heads side-by-side, their feet
facing away from each other, Hood’s left arm underneath McBeth’s head and wrapped
around the side and front of McBeth’s neck along his jawline,4 Hood’s right hand
intermittently grasping his left hand/wrist to brace the neck hold being applied by his left
arm. The relative positions of Powers, Hood, and McBeth can be seen in a cellphone
video, recorded by a bystander. (See Cellphone Video, ECF No. 87-30.) The bystander
appears to know McBeth, and she comes over and attempts to calm him down by
speaking to him, telling him not to move, and asking what is wrong with him.5 (Id.) At
0:40 of the cellphone video, Officer Hood is seen maintaining his headlock hold on
McBeth, Officer Powers is seen laying on McBeth as described, and Deputy Wendy

4

In their statement of the facts, Defendants inexplicably assert, “Hood’s arms were not on or across
McBeth’s neck or throat and McBeth was still talking and screaming with [sic] the head restraint was
applied by Officer Hood.” (ECF No. 69-1 at 7.) This assertion is clearly contradicted by the video
evidence.
5
The bystander calls McBeth by his twin brother’s name, “George,” and refers to herself as “Auntie.”

4

Childers is seen leaning over McBeth with her hands on his chest.6 (Id.) At 7:45 of the
Powers Video (roughly corresponding to 2:50 of the cellphone video), Deputy Roger Hill
approaches McBeth with leg irons and bends down to put them on McBeth’s legs with
Deputy James Johnson’s assistance. (ECF No. 87-31.) Hill and Johnson stand up at
8:15, apparently having completed the fixture of the leg irons. (Id.) From 0:58 to 3:10,
the cellphone video shows a more detailed view of the hold that Officer Hood is
applying, the pallor of McBeth’s skin, bruising and blood on his forehead, the state of his
breathing and speaking, and fluid coming out of the side of McBeth’s mouth that
appears foamy in substance. (ECF No. 87-30.) At 3:10 of the cellphone video (8:15 of
Powers Video), Officer Powers stands up and backs away from McBeth. Officer Hood
releases his hold and stands up at 3:20 (8:33 of Powers Video). McBeth is observed
speaking, and at times shouting, nonsensical things through the remainder of the
cellphone video, which concludes at 4:06 (roughly corresponding to 9:12 of the Powers
Video). (Id.)
At various points throughout the Powers Video it appears that McBeth struggles
to move around again after both his hands and feet are shackled and Officers Powers
and Hood have stood up and backed away. Although the view of his body is blocked by
the hood of Powers’ police cruiser, different groups of officers/deputies can be seen
bending over McBeth, both to check on him and to restrain him. It is not immediately
apparent which officers/deputies restrain him at various times—because they are often
off camera—or what type/degree of force is being applied. For example, in his sworn

6

This moment roughly corresponds to timestamp 5:40 of the Powers Video. However, Deputy Childers is
first seen bending over McBeth, and apparently placing her hands on his chest, at 4:48 of the Powers
Video. At 5:12 of the Powers Video, Deputy Suber appears and places his hand on Officer Powers’ back.
There is no way to judge how much weight Suber is placing on Powers’ back, except by drawing an
inference.

5

statement on the day of the incident, Deputy Suber describes Officer Douglas Spencer
of the CUPD as taking Officer Powers’ place on top of McBeth once Powers got up, and
indicates further struggles to restrain McBeth:
As Officer Dunn and several family members was [sic] trying to comfort
him, the male subject attempted to raise his body off the ground. I layed
[sic] myself on Officer Spencer’s back to put some more weight on
him in an attempt to keep him on the ground, to keep from causing
harm to himself or the public.7 He tried this a couple of times. Then
the subject began to spit. I got off of Officer Spencer and I helped Officer
Dunn pull the subject’s t-shirt over his face. Deputy Taylor gave me a spit
mask and I placed it over his head as Officer Dunn held his head in place.
(ECF No. 87-23 at 2 (emphasis added).) However, the events that Deputy Suber
describes with some specificity cannot be observed in the Powers Video, because of
the blocked view. It is clear that the struggle continues to be intermittently vigorous,
because the officers’ bodies can be seen rocking back and forth as they attempt to
restrain McBeth, and the quickness of their movements toward McBeth at times
conveys their sense of urgency to restrain him (e.g., 9:53, 12:09, and 13:10 of the
Powers Video). (See ECF No. 87-31.)
The Court notes that, with respect to the video evidence, it exclusively relies on
the Powers Video and the cellphone video to reconstruct approximately the first half of
the incident, because nearly all of the relevant events are initially out of frame on the
dash cam video from Deputy Hills’ police cruiser (“Hill Video”). (See Hill Video, ECF No.
87-32.) However, at 18:05:05 of the Hill Video, officers and deputies can be seen
scrambling to restrain McBeth. Neither McBeth’s position (prone or supine), nor the
degree/type of force being applied to his body can be observed. (Id.) At 18:10:08,
Deputy Hills’ dash cam is adjusted to point directly at the scene, and EMS personnel

7

Officer Spencer stands 6’2”, and weighs 309 lbs.; Deputy Suber stands 5’11”, and weighs over 300 lbs.

6

can be seen bending over McBeth and subsequently taking CPR measures and
providing oxygen (18:10:45). (Id.)
The Court is unclear why Defendants, in their briefing, represent it as established
fact that McBeth is in a supine position for nearly the entire duration of the struggle.
(See, e.g., 69-1 at 5 (“He was kept on his back throughout the entire incident except for
possibly some brief moment in time when he tried to turn over.”).) After the cellphone
video concludes, McBeth’s body position cannot be seen until he is unresponsive in the
Hill Video. Moreover, Deputy Childers, in her sworn statement taken the day following
the incident, describes McBeth turning over to the prone position sometime after the leg
irons were in place:
Cedrick Dunn arrived and knew the subject and stated that “I got him.” So,
I let go and let Dunn try to calm the subject down. The subject then began
spitting blood at Dunn and other officers. Someone handed Dunn (I think it
was Dunn) a surgical mask to place over the subject’s mouth to prevent
him from spitting. Jamison Taylor stated that he had a “spit mask” and
retrieved it from his car.8 Someone placed the mask on the subject. During
this, a crowd had gathered, some family members of the subject. They
attempted to talk to him to calm him down but that didn’t work, he
continued to rant about Jesus. One of the family members, I believe it was
the subject’s sister began to yell and cuss at a fireman. I placed her under
arrest and asked Branden Vaughn to transport her to the jail. I looked
back and saw that the subject was still resisting and that several
officers were trying to keep him from getting up. He resisted their
efforts to keep him still and turned over from his back to his
stomach. I then heard officers request that EMS hurry up. EMS then
began CPR.
(ECF No. 87-24 at 3.) Deputy Johnson, in his sworn statement taken the day after the
incident, also describes a significant struggle with multiple officers/deputies while
McBeth was facedown:

8

Though both Deputy Johnson and Deputy Childers refer to a “Deputy Jamison Taylor,” who is not a
defendant in this case, as being the source of the “spit mask,” Deputy Hill is seen at 10:45 of the Powers
Video bringing a surgical mask to the location of the struggle and handing it to Officer Dunn (wearing
white gym shorts and a sleeveless t-shirt), who is near McBeth’s head area. (ECF No. 87-31.)

7

The suspect was very strong and continued to kick and spit until a spit
mask was placed over his face by [Officer] Dunn. A set of handcuffs were
placed between his boots securing them together. They were not around
his ankles but attached to the insides of the boots by what appeared to be
a strap. Then I stood on the center of the leg iron chain to keep his legs
down. At this time there were at least 5 or 6 officers attempting to get
him under control and he was still able to flail and buck them off.
Then he stopped moving completely. We called out for EMS who had
arrived on the scene. We rolled him over back onto his back, then
moved back to allow EMS to take over.
(ECF No. 87-25 at 3.)
Per his deposition testimony, Sheriff Taylor arrived at the scene at some point
during the struggle to restrain McBeth and observed Officer Hood applying a restraint
hold to “his head.” (See Taylor Dep. 53:3-56:16, ECF No. 87-9 at 23-26.) At 10:57 of the
Powers Video, Taylor walks into camera view and begins talking to a bystander before
coming over to observe the officers and deputies restraining McBeth. (ECF No. 87-31.)
The Powers Video reflects that Officer Hood is not personally restraining McBeth at this
particular moment, because Hood walks through the frame at 11:11-11:15, just when
Sheriff Taylor comes over to observe. (Id.) Deputy Brandon Vaughn arrived at the scene
and was attempting to communicate with McBeth, when McBeth spit up blood and
saliva on him. (Id. at 11:39-11:49, 12:36-12:38 (Vaughn can be seen wiping off his
uniform shirt and face).) Deputy Vaughn did not know whether McBeth intended to spit
on him, but it led directly to the surrounding officers and deputies placing the spit mask
on McBeth. (Vaughn Dep. 14:1-15:25, 20:1-4, ECF No. 87-12 at 5-7.) EMS personnel
can be seen in the foreground talking to Deputy Hill while looking down at McBeth, and
Deputy Johnson appears to direct EMS to check on Deputy Powers, who is sitting in the
passenger seat of his police cruiser. (Id. at 11:49-12:02; Hill Video 18:03:36-18:03:53,
ECF No. 87-32.) Sheriff Taylor bends down over McBeth’s leg area and apparently

8

adjusts the manner in which they are shackled, because he is passed another set of
handcuffs and can be seen doing something to McBeth’s legs with Deputy Hill. (Powers
Video 12:25-12:54, ECF No. 87-31.)
During the ensuing several minutes, Deputy Johnson, Sheriff Taylor, Officer
Spencer, Deputy Suber, and Officer Hood can be observed exerting various degrees of
force to restrain McBeth. (Id. at 13:07-18:00.) McBeth’s body cannot seen, so the
precise manner and position of restraint is difficult to determine. However, a
combination of Defendants’ statements, Defendants’ deposition testimony, and the
Powers Video reveal the following restraints, at minimum, as being applied
intermittently: (a) laying on McBeth’s upper body (Spencer), (b) laying on top of another
officer to restrain McBeth’s upper body (Suber), (c) grabbing and/or laying on McBeth’s
legs/lower body (Taylor and Hood), (d) leaning on McBeth’s legs/lower body and
standing on the leg restraints (Johnson). (Id.; Taylor Dep., ECF No. 87-9 at 31; Johnson
Dep., ECF No. 87-11 at 14-16; Suber Statement, ECF No. 87-23; Childers Statement,
ECF No. 87-24; Johnson Statement, ECF No. 87-25. See also, Hill Video 18:05:0818:10:08, ECF No. 87-32.) Deputy Hill is standing in the near vicinity throughout this
portion of the incident, looking down at the struggle from different vantage points. After
several minutes, McBeth suddenly becomes unresponsive. Sheriff Taylor is talking with
a bystander when he realizes something is wrong and begins sharply motioning and
calling for EMS personnel. (Hill Video 18:08:15-18:08:37, ECF No. 87-32.) Plaintiff
asserts that the surrounding officers/deputies turn McBeth over from a prone position
onto his back at 18:09:54 of the Hill Video (see Video Timeline, ECF No. 87-29 at 14),
which is a plausible interpretation of the body language of Deputy Johnson and an

9

unidentified Sheriff’s Deputy (with cap and sunglasses strap) next to him. (See ECF No.
87-32;9 see also Powers Video 17:56-18:00, ECF No. 87-31.10) EMS personnel
respond, check McBeth’s vital signs, perform CPR, and administer oxygen, but they are
unable to revive McBeth. (See id. at 18:09:15-18:14:00.)
Plaintiff’s medical expert, Nicholas Batalis, M.D. (“Dr. Batalis”), is a forensic
pathologist for the Medical University of South Carolina. Based on his review of the
autopsy, the officers’ and deputies’ statements, and the videos of the incident, Dr.
Batalis opined that McBeth died as a result of restraint asphyxia while being subdued by
police officers. (Batalis Report, ECF No. 87-27.) In his report, Dr. Batalis wrote:
Adding to the hypoxic state the decedent was experiencing [from the
choke hold depicted in the cellphone video] was the fact that there were
officers piled on top of the decedent’s torso. While this is suggested in the
videos, as one can see several officers in the vicinity of the decedent, one
cannot definitively determine the number of officers and their precise
positions because of the obstructed camera views. However, witness
statements, including those from officers, state that there was more than
one officer on top of the decedent’s torso. Excessive weight on the
decedent’s torso would further exacerbate his inability to breath as his
chest would not be able to move as needed with each breath.
Taken together, there were three significant forces acting on the decedent
that significantly affected his ability to breathe and properly oxygenate his
tissues—1) Occlusion of the nose and mouth by a dampened spit hood
along with a shirt and/or surgical mask, 2) a significant choke hold that
resulted in marked, confluent hemorrhage in his neck musculature, and 3)
excessive weight on the decedent’s torso impairing his mechanical ability
to breath normally. Further evidence for the extent of the asphyxia is the
extensive amount of pulmonary edema the decedent exhibited. The foam
seen exuding from his mouth in the cellular phone video is fluid from the
lungs that made its way up the airway and out the mouth. This is
corroborated by the autopsy report that noted markedly heavy lungs
(approximately twice as heavy as expected) with increased pulmonary

9

Though the events are mostly off camera in the Hill Video, Deputy Johnson is seen raising his leg to get
it off the leg irons, then bending down along with the unidentified Sheriff’s Deputy as if to grab something
and stepping forward
10
In the Powers Video, Officers Dunn and Spencer appear to reach over and turn McBeth’s torso, while
Deputy Johnson appears to assist by turning McBeth’s legs.

10

edema and frothy fluid. While there are other causes of increased
pulmonary edema, such as use of opiate narcotics and heart failure, the
presence of increased edema in this case would certainly support a
diagnosis of asphyxia.
(Id. at 7-8.) Dr. Batalis further opined that the manner of McBeth’s death is best
medically described as a homicide, not an accident, because his death was directly due
to, or as a consequence of, the actions of others. (Id.; Batalis Dep. 149:1-23, ECF No.
87-8 at 29.)
Plaintiff’s use of force expert, Mel Tucker, was formerly the police chief of four
separate cities in the states of Florida, Tennessee, and North Carolina. Based on his
review of the evidence, established knowledge in the law enforcement community in
2013 about the risks of positional asphyxia, and established training norms in the law
enforcement community in 2013 about the physiology of a struggle, Mr. Tucker opined:
The restraint of Jackie McBeth, by the officers for approximately 10 to 15
minutes with his hands cuffed and legs shack[l]ed and their combined
body weight on him was a greater level of force than reasonable officers
would have used in 2013 and reasonable and trained officers would have
known such restraint could result in serious injury or death. Their failure to
follow the proper protocol to fulfill their responsibility for the safety of
McBeth demonstrated a reckless disregard for the safety of McBeth.
(Tucker Report, ECF No. 87-28 at 10-12.)
LEGAL STANDARDS
Summary Judgment
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 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

11

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
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. “Genuineness” of the disputed issue(s) “means that the
evidence must create fair doubt; wholly speculative assertions will not suffice.” See
Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). “Only
disputes over facts that might affect the outcome of the suit under the governing law will

12

properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248.
Qualified Immunity
In Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892 (4th
Cir. 2016), the Fourth Circuit Court of Appeals laid out the proper progression for
qualified immunity analysis in cases alleging the use of excessive force by police
officers:
“Qualified immunity protects officers who commit constitutional violations
but who, in light of clearly established law, could reasonably believe that
their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). A “qualified immunity analysis,” therefore, “typically
involves two inquiries: (1) whether the plaintiff has established the
violation of a constitutional right, and (2) whether that right was clearly
established at the time of the alleged violation.” Raub v. Campbell, 785
F.3d 876, 881 (4th Cir. 2015). The court “may address these two
questions in ‘the order... that will best facilitate the fair and efficient
disposition of each case.’” Id. (alteration in original) (quoting Pearson v.
Callahan, 555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). [A
plaintiff’s] case survives summary judgment, however, only if we answer
both questions in the affirmative. See Pearson, 555 U.S. at 232, 129 S. Ct.
808.
In this case, we adhere to “the better approach to resolving cases in which
the defense of qualified immunity is raised,” that is, we “determine first
whether the plaintiff has alleged a deprivation of a constitutional right at
all.” Pearson, 555 U.S. at 232, 129 S. Ct. 808 (quoting Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S. Ct. 1708, 140
L.Ed.2d 1043 (1998)). Though this sequence is “no longer . . . regarded as
mandatory,” it is “often beneficial,” and “is especially valuable with respect
to questions that do not frequently arise in cases in which a qualified
immunity defense is unavailable.” Id. at 236, 129 S. Ct. 808. Because
excessive force claims raise such questions, see Nancy Leong, Improving
Rights, 100 Va. L. Rev. 377, 393 (2014) (“[E]xcessive force claims are
litigated over 98% of the time in the civil context . . . .”), [the adjudicating
court may exercise its] discretion to address the constitutional question
presented by [the case] first.
Estate of Armstrong, 810 F.3d at 898-99, cert. denied sub nom. Vill. of Pinehurst, N.C.

13

v. Estate of Armstrong, 137 S. Ct. 61, 196 L. Ed. 2d 32 (2016).
DISCUSSION
SCTCA and § 1983 Causes of Action Against Union County Sheriff’s Office
At the outset, the Court notes that Plaintiff agrees with Defendant that the
SCTCA causes of action for battery and negligence/gross negligence against the Union
County Sheriff’s Office (“UCSO”) are barred by the Eleventh Amendment to the United
States Constitution. (See Opp’n, ECF No. 87 at 1.) Accordingly, Plaintiff consents to the
dismissal of the third and fourth causes of action in the complaint, and those claims are
hereby dismissed. (Id.)
Moreover, Plaintiff agrees that he cannot maintain a § 1983 claim against the
UCSO under a theory of municipal liability for failure to train, because such a claim is
also barred by the Eleventh Amendment. (See id.) However, Plaintiff argues that he can
maintain a § 1983 claim against Sheriff David Taylor (“Sheriff Taylor”) individually as the
chief policy maker for the UCSO for instituting a municipal policy and\or custom and
practice that fails to train deputies in the appropriate procedures for taking mentally ill
citizens into protective custody. (Id.) Accordingly, the Court will analyze Plaintiff’s fifth
cause of action with respect to Sheriff Taylor only.
Causes of Action Against Brandon Vaughn
The Court notes that Plaintiff agrees to dismiss all claims against Defendant
Brandan Vaughn because there is insufficient evidence for a jury to return a verdict
against him under any cause of action. (See id.) Accordingly, all claims against
Defendant Brandon Vaughn are hereby dismissed.
Excessive Force Claim Against Childers, Hill, Johnson, and Suber

14

Plaintiff’s first cause of action raises a claim under § 1983 and the South Carolina
Wrongful Death Statute, S.C. Code § 15-51-10, et al., against Deputies Childers, Hill,
Johnson, and Suber for the alleged application of unreasonable and excessive force in
violation of McBeth’s Fourth Amendment rights, leading to his death. (ECF No. 1 at 6-7.)
Defendants argue that the excessive force claim is fatally deficient because,
“None of these Defendants even had any significant physical contact with McBeth,
much less forceful contact.” (ECF No. 69-1 at 11.) Instead, Defendants aver, “The only
such contacts were minor and inconsequential.” (Id.)
The Court finds that Plaintiff has established a genuine dispute of material fact as
to whether the force used by Defendants Childers, Hill, Johnson, and Suber violated
McBeth’s Fourth Amendment right to be free from excessive force. “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). Claims that law enforcement officers
have used excessive force in the course of an arrest or other seizure are thus 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 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 Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (stating that the question in

15

such cases is “whether the totality of the circumstances justified a particular sort of. .
.seizure”)). “The extent of the plaintiff’s injury is also a relevant consideration.” Jones v.
Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) (citing Rowland v. Perry, 41 F.3d 167, 174
(4th Cir. 1994); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987)). 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 (citing Scott v. United States, 436 U.S. 128, 137-139 (1978)).
In Rowland v. Perry, the officer defendant urged the court to take “a segmented
view of the sequence of events,” and to hold that each step taken by the officer was
reasonable based on what the officer “knew at each point in this progression.” 41 F.3d
at 173. However, the Fourth Circuit declined to adopt such an approach to the
reasonableness analysis, concluding that it “miss[es] the forest for the trees.” Id. “The
better way to assess the objective reasonableness of force,” the Rowland court stated,
“is to view it in full context, with an eye toward the proportionality of the force in light of
all the circumstances.” Id. Accordingly, “Artificial divisions in the sequence of events do
not aid a court’s evaluation of objective reasonableness.” The Court will now address

16

each of the relevant factors in turn.
Severity of the crime at issue. It is undisputed that McBeth engaged in serious,
violent felonies by assaulting a bystander and Officer Powers. Nonetheless, Plaintiff’s
excessive force claim challenges the actions taken by police after he had been subdued
and handcuffed in a supine position. The question then becomes, what crime was
McBeth committing, or at risk of committing, when he was laying on his back, shackled
hand and foot?
Drawing all permissible inferences in favor of Plaintiff, as the Court is required to
do, the restraints imposed by the remaining Defendants involved: (1) Deputy Suber
laying on top of another police officer (Spencer), who was in turn laying on top of
McBeth’s torso while McBeth was in a prone position with his hands and feet shackled;
(2) Deputy Johnson leaning on McBeth’s legs/lower body and standing on the leg
chains while McBeth was in a prone position with his hands and feet shackled, and
while multiple officers were restraining his upper body in different ways; (3) Deputy
Childers leaning over McBeth and putting additional pressure on his chest with her
hands, after McBeth had already been subdued in a supine position, with his hands
shackled and his neck in a choke hold;11,12 and (4) Deputy Hill placing the leg irons on
McBeth, then later assisting Sheriff Taylor in adjusting the way McBeth’s legs were

11

The Court has not seen any evidence to suggest that Deputy Childers applied pressure to McBeth’s
chest after Officer Hood released the choke hold, or while McBeth was in a prone position.
12
With respect to use of the term “choke hold,” Defendants spend fruitless time arguing that the hold
applied by Officer Hood was merely to support and protect McBeth’s head. There is a genuine dispute of
material fact as to whether the hold was a “choke hold”—as Plaintiff claims—or a protective head restraint
to keep McBeth from injuring himself—as Defendants assert. The nature of the head and neck restraint
would certainly affect the factfinder’s evaluation of the totality of the circumstances, regardless of the facts
that Officer Hood is no longer a defendant in the lawsuit and that the remaining Defendants did not,
themselves, apply any restraint to McBeth’s head and neck. Accordingly, the Court adopts the term
“choke hold,” and finds that a reasonable juror could view Officer Hood’s hold as operating on McBeth in
the manner that Dr. Batalis defines as constituting a “choke hold,” namely, “pressure placed around the
outside of the neck that could obstruct the airway . . . or the blood vessels.” (Batalis Dep. 33:21-25, ECF
No. 87-8 at 14.)

17

shackled.13
In arguing that no constitutional violation occurred in this case (see Mot. for
Summ. J., ECF No. 69-1 at 19; Reply, ECF No. 92 at 9), Defendants are essentially
asking the Court: (a) to limit the extent of the restraints in question to those displayed in
the cellphone video,14 (b) to make a judgment call in Defendants’ favor that the restraint
Officer Hood was applying to McBeth’s neck was reasonable and did not contribute to
his difficulty breathing, and (c) to ignore the other factors that Plaintiff’s expert has
opined likely contributed to McBeth’s sudden death after approximately sixteen (16)
minutes in custody (see Batalis Report, ECF No. 87-27 at 6-8 ). But Fourth Circuit
precedent counsels against making such “artificial divisions in the sequence of events,”
see Rowland, 41 F.3d at 17, and the Court is not at liberty to draw inferences in the
moving parties’ favor at summary judgment.
Here, there is little question that a reasonable juror could infer, from the palor of
McBeth’s skin in the cellphone video, from the foam coming out of the side of his mouth,
from his sometimes labored and incoherent speech, from his general shortness of
breath, and from the red/purple discoloration of Officer Hood’s forearm, that the hold
Hood was applying to McBeth’s neck was impeding McBeth’s respiration. It is
undisputed that Deputies Suber, Johnson, and Childers applied no such neck hold to
McBeth. However, their contemporaneous and subsequent applications of force to
McBeth’s body must be evaluated as part of a totality of circumstances that includes

13

Sheriff Taylor is not named in the excessive force claim or the bystander liability claim.
It would seem that Defendants want the Court to artificially curtail the scope of the seizure to the time
period captured in the cellphone video—4 minutes and 6 seconds—when the actual duration of the
seizure, and the corresponding force applied by numerous officers/deputies continues, albeit
intermittently and with varying degrees of intensity, for a much longer period—approximately 16 minutes,
from 2:00 to 18:00 of the Powers Video.
14

18

Officer Hood’s choke hold. And the Court finds that there is a genuine issue of material
fact as to whether the proportionality of the force that Suber, Johnson, and Childers
each contributed (see Rowland, 41 F.3d at 173) to restraining McBeth was excessive,
given that McBeth had already been substantially subdued and was in handcuffs and
leg irons. Thus, the severity of the crime factor weighs against a finding of objective
reasonableness under the circumstances presented.
At the same time, the Court is unwilling to illogically aggregate the Deputies’
conduct with respect to the excessive force claim. It is clear that Defendants’ liability, if
any, under an excessive force theory must arise from actions that could be considered
proximate causes of Plaintiff’s injury. Otherwise, the excessive force claim would
inevitably devolve into a quagmire of guilt-by-association. The Court declines Plaintiff’s
invitation to sloppily amalgamate the entirety of police conduct on the scene, and rule
that by simply touching McBeth (referred to as “going hands-on”), however slightly, any
officer or deputy becomes equally responsible for McBeth’s resultant death. (See ECF
No. 87 at 27-28 (arguing joint and several liability and “integral participation” theories).)
Deputy Hill’s conduct—putting the leg irons on McBeth initially, and later adjusting them
with Sheriff Taylor—cannot be construed as a proximate cause of the restraint asphyxia
allegedly suffered by McBeth. Moreover, there is no genuine dispute that the application
of leg irons to McBeth was appropriate, given his aggressive and violent behavior
immediately prior to being apprehended. Accordingly, though not directly related to the
severity of the crime analysis, the Court takes this opportunity to grant summary
judgment in favor of Deputy Hill on the excessive force claim only.
Immediate threat to the safety of the officers or others. Defendants argue

19

that the force applied to McBeth was reasonable because he continued to pose an
immediate threat to the officers and deputies around him, even after he was on the
ground and handcuffed. Defendants assert, “Aside from the danger posed by McBeth’s
possible use of the handcuffs as a weapon, there were other immediate threats to the
police officers and others.” (ECF No. 92 at 6.) They reference various statements made
by the officers and deputies on scene: Deputy Vaughn – “When he was on the ground
he was kicking and fighting trying to get up off the ground. He was trying to bite and spit
on other officers.” (Vaughn Statement, ECF No. 69-15 at 1); Officer Hood – “Sergeant
Powers was able to place the subject in handcuffs at which time the subject continued
to try and get up from the officers. While attempting to restrain the subject a white male
informed the officers that the subject was attempting to grab one of their sidearms.”
(Hood Statement, Id. at 10.); Officer Spencer – “Jackie appeared to have super human
strength, even while being held down he continued to somewhat manhandle fellow
officers that were holding him down.” (Spencer Statement, ECF No. 92-4 at 2).
The Court would note that these assertions appear to be one off statements,
uncorroborated by numerous descriptions of the same incident by other officers. For
example, while virtually every officer and deputy that provided a statement described
McBeth as spitting up blood and saliva, none except Deputy Vaughn observed McBeth
“trying to bite” anyone. And Vaughn himself acknowledged in his deposition that he
does not even know whether McBeth spit at him intentionally.15 (See Vaughn Dep. 20:12, ECF No. 87-12 at 7.) Similarly, no officer or deputy, other than Hood, described
McBeth as attempting to take a police firearm. Furthermore, the video evidence does

15

Also, the portions of Deputy Vaughn’s deposition that are available to the Court include no reference to
attempted biting.

20

not comport with McBeth being in a position to make such an attempt. Lastly, while it is
true that McBeth continued to struggle against being restrained, the Court would be
hard pressed to interpret the video evidence as showing anyone other than McBeth,
himself, being “manhandled.”
The cellphone video shows that once Officers Powers stood up and Officer Hood
released his hold, McBeth took no aggressive action to assault the officers. (See
Cellphone Video 3:07; ECF No. 87-30.) He continues to mutter, and sometimes yell,
incoherent and bizarre statements. The officers and deputies on scene consistently
describe McBeth as struggling and attempting to get up from the ground, including
kicking his legs, but not as making any attempt to strike them. (See Powers Statement,
ECF No. 87-21 at 6; Hood Statement, ECF No. 87-22 at 3; Suber Statement, ECF No.
87-23 at 2; Childers Statement, ECF No. 87-24 at 3; Johnson Statement, ECF No. 8725 at 2-3.)
In Estate of Armstrong, the Fourth Circuit explained, “Even noncompliance with
police directives and nonviolent physical resistance do not necessarily create ‘a
continuing threat to the officers’ safety.’” 810 F.3d 892, 904 (citing Meyers v. Baltimore
Cty., Md., 713 F.3d 723, 733 (4th Cir. 2013)). Summarizing its relevant precedent on
this point, the Estate of Armstrong court stated:
In all of these cases, we declined to equate conduct that a police officer
characterized as resistance with an objective threat to safety entitling the
officer to escalate force. Our precedent, then, leads to the conclusion that
a police officer may only use serious injurious force, like a taser, when an
objectively reasonable officer would conclude that the circumstances
present a risk of immediate danger that could be mitigated by the use of
force. At bottom, “physical resistance” is not synonymous with “risk of
immediate danger.”
Id. at 905. Here, the Court finds that Plaintiff has presented a genuine issue regarding

21

whether McBeth’s resistance to ongoing restraint merely constituted his efforts to get up
from the ground and restore proper respiration, or whether there was truly an ongoing
risk to officer and bystander safety. In conducting this analysis, it is important to
remember that McBeth had already been subdued on the ground after being subjected
to numerous Taser deployments and a choke hold, that he was already in handcuffs
and leg irons, and that there were approximately five to six officers immediately
surrounding McBeth, with many more on the scene. Given this context, the immediate
threat to safety factor cuts against a finding of objective reasonableness.
Actively resisting arrest. For all the reasons already explained above, there is
undoubtedly a genuine dispute regarding whether McBeth was actively resisting arrest
once he was shackled and in the prone position. Defendants argue that McBeth’s
continuing movements were aggressive and that he could have broken free to begin
injuring officers or bystanders at any moment. Plaintiff argues that McBeth was
struggling to maintain his respiration, and the restraints being applied unreasonably
restricted his ability to do so. Plaintiff’s use of force expert, Mel Tucker, explained the
concept of physiology of a struggle in his report:
Because of the frequency of deaths [from positional asphyxia], law
enforcement officers are taught in basic use of force training programs to
avoid restraining people in a prone (face down) position and, if absolutely
necessary to place in a prone position, to only do so for a very short time
period. They are also taught that the basic physiology of a struggle and
restraint of a person in a prone position is a vicious cycle of suspect
resistance and officer restraint which can often result in the suspect’s
death because:
1. As suspect is restrained in a face-down position, breathing becomes
labored, and the suspect struggles to get air;
2. In response to the suspect’s struggle the officer applies weight to
the person’s back;
3. The more weight applied the more sever the degree of compression;

22

4. The greater the degree of compression of the suspect the greater
the difficulty in breathing;
5. The natural reaction to oxygen deficiency is that the suspect
struggles more violently;
6. In response to the increasingly violent struggle, the officer applies
more compression to subdue the suspect (U.S. Department of
Justice Bulletin dated June 1995 titled Positional Asphyxia – Sudden
Death attached as Appendix H).
(Tucker Report, ECF No. 87-28 at 10.)
In Rowland, the Fourth Circuit found that “the resistance offered by [the arrestee]
during the struggle with [police],” did not justify the use of force in question, reasoning
that despite such resistance, the arrestee “posed no threat to the officer or anyone
else.” 41 F.3d at 173-74. It was relevant that the arrestee “resisted only to the extent of
instinctively trying to protect himself from the defendant’s onslaught.” Id. at 174. More
recently, in Smith v. Murphy, 634 F. App’x 914 (4th Cir. 2015), the Fourth Circuit stated,
“As for the third Graham factor, resistance from [the arrestee] could be characterized as
instinctive, and we have twice concluded that such reactions do not constitute active
resistance.” Id. at 917 (citing Smith v. Ray, 781 F.3d 95, 103 (4th Cir. 2015); Rowland,
41 F.3d at 174). Here, as was the case in Smith v. Murphy, the Court finds that when
viewed in the light most favorable to McBeth, the facts could support a finding of
excessive force, and the resisting arrest factor weighs against a finding of objective
reasonableness.
Extent of Plaintiff’s Injuries. Construing the facts in Plaintiff’s favor, McBeth
was Tased, choked, and placed in handcuffs and leg irons, yet still was subjected to
ongoing restraint that compromised his ability to breath, leading to the ultimate injury—
death. Accordingly, the Court finds that the extent of injury factor counsels toward a
determination that the force used was disproportionate to the dangers presented.

23

Failure to Intervene Claim Against Childers, Hill, Johnson, and Suber
In order to succeed under a theory of bystander liability under § 1983, Plaintiff
must demonstrate that Deputies Childers, Hill, Johnson, and Suber: (1) knew that a
fellow law enforcement officer was violating McBeth’s constitutional rights; (2) had a
reasonable opportunity to prevent harm; and (3) chose not to act. Stevenson v. City of
Seat Pleasant, Md., 743 F.3d 411, 419 (4th Cir. 2014) (citing Randall v. Prince George’s
Cty., Md., 302 F.3d 188, 204 (4th Cir. 2002)). “The rationale underlying the bystander
liability theory is that a bystanding officer, by choosing not to intervene, functionally
participates in the unconstitutional act of his fellow officer.” Randall, 302 F.3d at 204
n.24.
It is undisputed that Deputies Childers, Hill, Johnson, and Suber observed the
choke hold that Officer Hood continued to apply after McBeth was handcuffed, with his
lower body restrained by Officer Powers laying on him, and with multiple supporting
officers in the immediate vicinity. Defendants simply deny that the head/neck restraint
was a choke hold, and suggest that it was applied in order to keep McBeth from injuring
his head on the ground. The choke hold is relevant to Plaintiff’s survival claim for
conscious pain and suffering. (See Compl. ¶ 19, ECF No. 1.)
It is clear that Defendants also observed a series of restraints applied by, at
minimum, Officer Spencer, Deputy Suber, and Deputy Johnson, to McBeth after his
hands and feet were shackled and he was laying in a prone position—though
Defendants dispute the fact that McBeth was prone for any substantial period of time.
The continuing restraints of pressure applied to McBeth’s torso (back) and legs, with his
hands cuffed under his stomach, thereby restricting his ability to breath, are relevant to

24

Plaintiffs wrongful death claim. (See id.) Defendants argue that these restraints were all
necessary to ensure the safety of the officers and the public.
At bottom, Defendants assert that they are entitled to summary judgment on the
bystander liability claim because they cannot be said to have known that a fellow law
enforcement officer was violating McBeth’s constitutional rights. The Court disagrees.
Plaintiff has demonstrated a genuine issue of material fact by introduction of the
cellphone video, the autopsy evidence,16 the Powers Video, and the Deputies’
statements. With respect to Defendants’ alleged failure to intervene when observing the
choke hold, the Court concludes that a reasonable jury could find that continued
application of the choke hold after McBeth had already been substantially subdued in a
supine position was a violation of McBeth’s constitutional rights, and that Defendants
knew or should have known as much. With regard to Defendants’ alleged failure to
intervene when observing two three-hundred-pound men (Officer Spencer and Deputy
Suber) piled on top of McBeth while he lay on his stomach with his hands cuffed under
him, the Court likewise finds that a reasonable jury could determine that McBeth’s
constitutional rights were being violated and that Defendants knew or should have
known.
The remaining questions pertaining to bystander liability are easily resolved.

16

In his report, Dr. Batalis opines: “While the choke hold depicted on the video was not the immediate
cause of death, it certainly was a significant hold that impaired the decedent’s ability to breath for a period
of several minutes. While under the influence of the hold, the decedent was relatively calm and subdued
with significant congestion of his head and neck (so called plethora). After release of the hold he did
become agitated after several seconds, most likely as he was no longer starved of oxygen. Even then,
however, he still appeared to be breathing rapidly as if he was out of breath. The extent of the pressure
applied by the hold is also reflected in the substantial amount of hemorrhage in his neck in the area
where the pressure of the hold was being applied as shown in this composite figure of a screen shot from
the cellular phone video and an autopsy photo of the decedent’s right side of his neck.” (ECF No. 87-27 at
7.) The fact that Plaintiff’s expert is able to make a direct link between the area of McBeth’s neck where
Officer Hood was applying the choke hold, and hemorrhage in the neck discovered during the autopsy,
lends further weight to Plaintiff’s theory that the choke hold was objectively unreasonable and precludes
the entry of summary judgment.

25

Plaintiff has presented sufficient evidence to conclude that Deputies Childers, Hill,
Johnson, and Suber had reasonable opportunities to prevent these harms—because
they either remained in the immediate vicinity for the duration of the incident, or
participated in the restraints themselves—and yet chose not to act—by failing to direct
Officer Hood to release the choke hold sooner, and by failing to direct Officer Spencer
and Deputy Suber to get off of McBeth’s back and allow him an opportunity to breathe.
See Stevenson, 743 F.3d at 419.
Deputies Childers, Hill, Johnson, and Suber’s Qualified Immunity Defense
In the foregoing analysis (supra at 14-25), the Court found that, viewed in the
light most favorable to Plaintiff, the record establishes that when seizing McBeth,
Defendants used unreasonably excessive force and/or failed to intervene in violation of
the Fourth Amendment. See Brousseau v. Haugen, 543 U.S. 194, 197 (2004) (“When
confronted with a claim of qualified immunity, a court must ask first the following
question: ‘Taken in the light most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional right?’”) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)). The next inquiry is whether the constitutional right at
issue was clearly established at the time Defendants acted. “A right satisfied this
standard when it is ‘sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.’” Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “‘This is not to say
that an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that in light of the preexisting law the unlawfulness must be apparent.’” Wilson v. Layne, 526 U.S. 603, 615

26

(1999) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Plaintiff asserts that
it was clearly established in 2013, that using a choke hold and/or putting excessive
pressure on a handcuffed prone subject exhibiting the risks/signs of sudden in-custody
death, violated the Fourth Amendment. (ECF No. 87 at 30.)
Plaintiff introduced evidence to show that in order to receive certification as a law
enforcement officer in South Carolina, a person must successfully complete the basic
law enforcement training academy run by the South Carolina Criminal Justice Academy
(SCCJA). At the time of this incident, the SCCJA was and had been teaching students
about sudden in-custody deaths in three different areas of instruction, the training
sections on: (1) use of force, (2) use of chemical spray, and (3) civil liability. Each
section discussed the dangers of sudden in-custody death syndrome (“SIDS”),
specifically referencing positional asphyxia as a primary cause and discussing how to
mitigate it. For example, the Use of Force Lesson Plan describes positional asphyxia in
the following manner:
Positional Asphyxia – A lack of oxygen and increase in carbon dioxide in
the blood of the subject, brought about by a subject being in a position that
restricts breathing. This condition can lead to death. Caution should be
exercised when restraining or cuffing a subject in a prone position. A
subject’s own body weight, along with any weight applied by an officer,
may restrict the subject’s ability to catch his/her breath. The subject may
increase his/her struggle, which may appear to the officer as an increase
in resistance to the arrest. For this reason, a subject should not be
positioned and transported on his/her stomach or on his/her back in a
prone position. A subject should be transported in an upright seated
position with the head off the chest to assure that an airway is open.
(ECF No. 87-38 at 7 (emphasis added).) (See also Civil Liability Lesson Plan, ECF No.
87-39 at 11;17 Chemical Spray Lesson Plan, ECF No. 87-37 at 10.) In identifying the risk

17

The Civil Liability Lesson Plan also specifically references the dangers of “carotid holds,” another
descriptor for the type of hold allegedly applied by Officer Hood, in a section entitled, “Positional

27

factors for SIDS, the Use of Force Lesson Plan cautions, “If an officer notes any of the
following risk factors present, then extreme caution and close observation should be
used with the subject.” (ECF No. 87-38 at 6.) The risk factors are listed as: (a) heavy
alcohol intoxication, (b) extraordinary physical strength, (c) poor color, (d) panic, (e)
hyperthermia – red face and high body temperature, (f) sudden tranquility or lethargy,
(g) paranoia, (h) cocaine intoxication, (i) obesity – large bellies, (j) aggressive or bizarre
behavior, (k) apparent ineffectiveness of chemical spray. (Id.) In his opposition, Plaintiff
also itemizes deposition testimony from Deputies Childers, Hill, Johnson, and Suber,
reflecting their recollections about being trained on positional asphyxia at the SCCJA at
various points from 1998 to 2004. (See ECF No. 87 at 16-18.)
There is no Fourth Circuit precedent that considers positional asphyxia in the
context of a claim alleging that an arrestee’s Fourth Amendment rights were violated

Asphyxia, Excited Delirium, Carotid Holds.” Also, the description of “excited delirium” rings eerily true to
McBeth’s condition as he was being taken into custody. It reads:
In using force, officers need to be aware of concerns relating to positional asphyxia,
particularly as it relates to excited delirium and carotid holds. Medical and law
enforcement studies have cautioned officers in their use of certain techniques and many
departments prohibit hogtying. Excited delirium syndrome is described as involving
“delirium or psychosis, violent behavior, superhuman strength, dilated pupils, paranoia,
hallucinations, hyperthermia, undressing in public, hiding behind cars, buses or trees,
hearing voices, high blood pressure and pulse rate, aggression toward objects, especially
glass, thrashing after restraint, jumping into water, yelling, and self-inflicted injury.” (Dr.
Wetli of Dade County, Florida, Final Report of the Custody Death Task Force) In some
cases, following restraint of such individuals in a prone position, with weight on their
backs, in-custody deaths have occurred. Positional asphyxia relates to a situation when
the position of the body interferes with respiration resulting in asphyxia.
Where there are dangers of positional asphyxia, the officers should attempt to quickly
control the suspect then relieve him/her of heavy weight meant to keep him/her controlled
and get him/her out of the prone position as soon as possible. The suspect should be
monitored continuously while there is any danger and officers should provide immediate
medical attention as necessary.
(ECF No. 87-39 at 11 (emphasis added).)

28

during the course of the seizure.18 In Meyers v. Baltimore Cty., Md., 713 F.3d 723 (4th
Cir. 2013), the Fourth Circuit stated:
We . . . have stated in forthright terms that “officers using unnecessary,
gratuitous, and disproportionate force to seize a secured, unarmed
citizen, do not act in an objectively reasonable manner and, thus, are not
entitled to qualified immunity.” Bailey v. Kennedy, 349 F.3d 731, 744-45
(4th Cir.2003) (quoting Jones v. Buchanan, 325 F.3d 520, 531-32 (4th Cir.
2003)). The fact that the force used in the present case emanated from a
taser, rather than from a more traditional device, is not dispositive. The
use of any “unnecessary, gratuitous, and disproportionate force,”
whether arising from a gun, a baton, a taser, or other weapon, precludes
an officer from receiving qualified immunity if the subject is unarmed
and secured. See Park, 250 F.3d at 852–53 (concluding that an officer’s
use of “pepper spray” to subdue an unarmed subject was irresponsible
and excessive when the subject was not a threat to the officer or the
public, and that the officer was not entitled to qualified immunity); see also
Orem v. Rephann, 523 F.3d 442, 449 (4th Cir.2008) (concluding that use
of a taser to “punish or intimidate” a pretrial detainee is not objectively
reasonable and is contrary to clearly established law).
Id. at 734-35 (emphasis added). Thus, the Meyers court concluded that, where the
arrestee was unarmed and “effectively was secured with several officers sitting on his
back,” seven additional Taser shocks administered by an arresting officer were
“unnecessary, gratuitous, and disproportionate.” Id. at 735 (citing Bailey, 349 F.3d at
744-45).
In Champion v. Outlook Nashville Inc., 380 F.3d 893 (6th Cir. 2004), the Sixth
Circuit Court of Appeals held, “it is . . . clearly established that putting substantial or
significant pressure on a suspect’s back while that suspect is in a face-down prone
position after being subdued and/or incapacitated constitutes excessive force.” Id. at
903. Accordingly, the Sixth Circuit denied qualified immunity to officers who, in 1999,

18

Defendants’ extensive citation to and discussion of Fourteenth Amendment cases in the motion for
summary judgment is inapposite. (See ECF No. 69-1 at 13-19.) The deliberate indifference standard has
relevant, indeed essential, differences, and the cases cited by Defendants are neither controlling, nor
persuasive.

29

placed their weight upon the arrestee’s body by lying across his back and
simultaneously pepper sprayed him. Id. See also Martin v. City of Broadview Heights,
712 F.3d 951 (6th Cir. 2013) (“A reasonable officer should have known that subduing an
unarmed, minimally dangerous, and mentally unstable individual with compressive body
weight, head and body strikes, neck or chin restraints, and torso locks would violate that
person’s clearly established right to be free from excessive force.”); Simpson v. Hines,
903 F.2d 400 (5th Cir. 1990) (denying qualified immunity to police officers who entered
an inmate’s cell, placed the inmate in a neck hold, and put strong pressure upon his
chest, where the custodial death report attributed the inmate’s death to asphyxia as a
result of trauma to the neck sustained during the struggle, and a physician’s report
suggested that the inmate may have died as a result of asphyxiation due to the
pressure on his chest). In Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), the Tenth
Circuit Court of Appeals reversed the district court’s grant of qualified immunity for an incustody death due to positional asphyxiation occurring in 2002. Id. at 1155. The Tenth
Circuit stated, “If . . . the facts plaintiffs proffered are true and the jury draws the
inferences most supportive of plaintiffs’ position, then the law was clearly established
that applying pressure to [the arrestee’s] upper back, once he was handcuffed and his
legs restrained, was constitutionally unreasonable due to the significant risk of positional
asphyxiation associated with such actions.” Id. The Weigel court further explained:
We do not think it requires a court decision with identical facts to establish
clearly that it is unreasonable to use deadly force when the force is totally
unnecessary to restrain a suspect or to protect officers, the public, or the
suspect himself. Yet, as explained above, there is evidence that this is
what happened here: even after it was readily apparent for a significant
period of time (several minutes) that [the arrestee] was fully restrained and
posed no danger, the defendants continued to use pressure on a
vulnerable person’s upper torso while he was lying on his stomach. A

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reasonable officer would know these actions present a substantial and
totally unnecessary risk of death to the person.
Id. at 1154.
The dangers of positional asphyxia and its potential to cause sudden in-custody
death has been taught at the SCCJA since the late 1990s. (See ECF No. 87-36 at 2.)
The Court finds that, given the conditions that McBeth was unarmed and already
secured with handcuffs and leg irons, any reasonable officer would have known that the
continued application of a choke hold and the piling of two three-hundred-pound officers
on McBeth’s torso while he was in the prone position were unnecessary, gratuitous, and
disproportionate forms of force to prevent a risk of injury to the officers or the public.
See Meyers, 713 F.3d at 735. Accordingly, the Court holds that the use of a choke hold
and/or excessive pressure on a handcuffed, prone subject exhibiting risk factors for
sudden in-custody death violated McBeth’s clearly established Fourth Amendment right
to be free from excessive force.
Failure to Train § 1983 Claim Against Sheriff Taylor
As indicated above, the parties dispute whether the complaint asserts a § 1983
claim for failure to train against David Taylor in his individual capacity. (See supra at 2.)
Defendants maintain that paragraph 6 of the complaint specifically states that Taylor is
sued “in his representative capacity for the Office of the Union County Sheriff,” and
nowhere does the complaint expressly indicate that Taylor is sued in his individual
capacity. (See ECF No. 92 at 10-11.) Plaintiff counters that the same paragraph of the
complaint states, further down, “David Taylor is also sued under 42 U.S.C. § 1983 for
compensatory damages for having a municipal policy and/or custom and practice that
fails to train deputies in the appropriate procedures for taking mentally ill citizens into

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protective custody that proximately caused Jackie McBeth’s death.” (See ECF No. 94 at
1-2 (emphasis added).) It is true, Plaintiff concedes, that paragraph 6 contains the
“representative capacity” language, precisely because state law claims under the South
Carolina Tort Claims Act, require a claimant to sue the entity (here the UCSO), not the
individual. But the word “also,” asserts Plaintiff, indicates that Taylor is being sued in a
different capacity for the § 1983 claim—namely, his individual capacity. (See id. at 2.)
The Court finds that the complaint does, indeed, state a claim against Taylor in
his individual capacity for violation of § 1983, pursuant to a failure to train theory. The
proper way to plead a § 1983 claim against the UCSO as an entity, would be to sue
Taylor “in his official capacity.” The complaint does not include any “official capacity”
reference, just as it does not include any “individual capacity” reference. Nevertheless,
in the view of the undersigned, a fair reading of paragraph 6 indicates a progression
from

a

representative

capacity

claim

under

the

SCTCA—explicitly

seeking

compensatory damages from the UCSO (“The Office of the Union County Sheriff is
sued for compensatory damages under
state law based on the acts and omissions of their deputies in the seizure of the
deceased
plaintiff, Jackie McBeth”)—to an individual capacity claim under § 1983—seeking
compensatory damages from David Taylor (“David Taylor is also sued under 42 U.S.C.
§ 1983 for compensatory damages for having a municipal policy . . . .”). (See Compl. ¶
6, ECF No. 1.) Moreover, David Taylor is named in the caption the same way all of the
Defendant Deputies are named, simply by first and last name, and the Defendant
Deputies are indisputably all sued in their individual capacities.

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Defendants argue that Plaintiff “should not be allowed to raise a new individual
capacity claim against Defendant Taylor at this late stage of the case, well over two
years after the Complaint was filed, after extensive discovery has been completed, and
when a motion for summary judgment is already pending before this Court.” (ECF No.
92 at 10.) But Defendants would be hard pressed to demonstrate any prejudice from a
determination that the complaint states an individual capacity claim, given that both
Taylor and the police procedure experts in this case were questioned extensively at
their depositions regarding Taylor’s training and supervision of his deputies, and that
numerous documents were exchanged during discovery regarding Taylor’s training and
supervision policies specifically. To preclude the individual capacity claim at this stage
for failure to include the talismanic words in the original pleading, would be to elevate
form over substance, and the Court declines to do so.19 See Stevenson v. City of Seat
Pleasant, Md., 743 F.3d 411, 418 (4th Cir. 2014) (upholding the sufficiency of a § 1983
claim for bystander liability where the phrase “bystander liability” appeared nowhere in
the complaint, and stating that the plaintiffs “were not required to use any precise or
magical words in their pleading”).
Those rather technical matters being resolved, the Court has little difficulty in
denying the motion for summary judgment on the failure to train claim. In order to

19

At the same time, the Court will not rewrite Plaintiff’s complaint in order to expand the scope of liability.
In his opposition, Plaintiff writes, “Aside from being individually liable for his actual physical participation
and under a theory of bystander liability, Sheriff Taylor can also be held responsive to a verdict under a
theory of supervisory liability.” (ECF No. 87 at 33.) However, David Taylor is not named in the excessive
force cause of action or the bystander liability cause of action. (See Complaint ¶¶ 15-19, ECF No. 1 at 67.) This was clearly an intentional choice, given that each of the other individual Defendants is referenced
by name in both claims. (See id.) Thus, the parties will note that the Court has analyzed the viability of
those claims without reference to Taylor’s putative liability under either theory. (Supra at 14-31.)
Admittedly, the subtitle of the fifth cause of action states that it is for “Municipal Liability against the City of
Union and the Union County Sheriff’s Office . . . .” (ECF No. 1 at 9 (emphasis added).) However, the
substance of the claim names David Taylor specifically, and itemizes various alleged acts and omissions
that form the basis of the claim. (See id. at 10-13.)

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maintain a claim for supervisory liability under § 1983, “A plaintiff must show actual or
constructive knowledge of a risk of constitutional injury, deliberate indifference to that
risk, and an ‘affirmative causal link between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.”” Carter v. Morris, 164 F.3d 215, 221 (4th
Cir. 1999) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Moreover, with
respect to failure to train claims specifically:
To impose liability on a supervisor for the failure to train subordinates, a
plaintiff must plead and prove that: (1) the subordinates actually violated
the plaintiff’s constitutional or statutory rights; (2) the supervisor failed to
train properly the subordinates thus illustrating a “deliberate indifference”
to the rights of the persons with whom the subordinates come into contact;
and (3) this failure to train actually caused the subordinates to violate the
plaintiff’s rights. Harris, 489 U.S. at 388-92, 109 S.Ct. 1197; see also Doe
v. Broderick, 225 F.3d 440, 456 (4th Cir. 2000); Carter v. Morris, 164 F.3d
215, 221 (4th Cir.1999); Anthony D. Schroeder, Note, The Deliberate
Indifference Standard in 42 U.S.C. § 1983 Municipal Liability Failure to
Train Cases, 22 U. Tol. L.Rev. 107, 126 (1990).
Brown v. Mitchell, 308 F. Supp. 2d 682, 701-02 (E.D. Va. 2004).
Plaintiff has introduced sufficient evidence to create a genuine dispute of material
fact regarding David Taylor’s alleged failure to properly train his deputies regarding the
dangers of positional asphyxia. Taylor was the chief policy maker for the UCSO. A
reasonable policy maker, given the available literature that positional asphyxia is one of
the chief causes of sudden in-custody death, should develop a policy and training on
the topic. Such training should include education on the physiology of struggle, and
make officers aware that an arrestee’s attempts to get up and/or get officers off of them
while they are in a prone position may be an effort to facilitate breathing rather than
resistance. The need for such training is demonstrated by the fact that positional
asphyxia is taught at the basic law enforcement training academy at the SCCJA. In this

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case, there were numerous Sheriff’s Deputies at the scene of the struggle and none of
them recognized the presence of many of the risk factors that SCCJA training lists as
indicators for an elevated danger of SIDS—e.g., McBeth was a large man with a fairly
large belly, his face was discolored, he was acting in a panic, he exhibited moments of
sudden tranquility immediately following aggressive and bizarre behavior, apparent
ineffectiveness of chemical spray, he had been tased numerous times and subject to
attempted chemical spray, at times he appears to be gasping for air, etc. (See Use of
Force Lesson Plan, ECF No. 87-38 at 6.)
The Court finds that Sheriff Taylor was on actual and constructive notice
regarding the dangers of positional asphyxia in the course of Fourth Amendment
seizures made by his deputies. It is immaterial that there had been no prior instances of
positional asphyxia during Taylor’s tenure as Sheriff at the UCSO, because the nature
of the resultant harm—sudden death—required preemptive training measures to fulfill
the demands of reasonableness. There is sufficient evidence of deliberate indifference
to that risk to survive summary judgment because Sheriff Taylor had no training policy
on this topic. Taylor was even at the scene observing the restraints being applied to
McBeth, and himself failed to identify the presence of risk factors for positional
asphyxia. Moreover, there is sufficient evidence for a reasonable jury to conclude that
this failure to train proximately caused Taylor’s subordinates to violate McBeth’s Fourth
Amendment right to be free from excessive force. Accordingly, the motion for summary
judgment with respect to the failure to train claim is denied.
CONCLUSION
After careful consideration of the parties’ briefs and the relevant portions of the

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record, and for the reasons set forth above, the Court grants in part and denies in part
Defendants’ Motion for Summary Judgment (ECF No. 26). The third and fourth causes
of action in the complaint are dismissed. The § 1983 claim against the Union County
Sheriff’s Office under a theory of municipal liability for failure to train is also dismissed;
however, the failure to train claim against David Taylor in his individual capacity
survives. All claims against Brandon Vaughn are dismissed. The excessive force claim
against Roger Hill is dismissed; however, the excessive force claim against Wendy
Childers, James Johnson, and Roger Suber persists. The bystander liability claim
against Wendy Childers, Roger Hill, James Johnson, and Roger Suber survives.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
Bruce Howe Hendricks
United States District Judge
September 25, 2018
Greenville, South Carolina

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