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Conner v. Wake County

United States District Court, E.D. North Carolina, Western Division

March 12, 2015

RAINA CONNER, Administratix of the Estate of Adam Wade Carter Plaintiff,
WAKE COUNTY, SHERIFF DONNIE HARRISON, in his official and individual capacities, TAVARES THOMPSON, in his official and individual capacities, KELLY S. MITHCELL, in her official and individual capacities, JOHN AND JANE DOES 1-10, Individually and in their official capacities as Deputy Sheriffs of Wake County, and THE OHIO CASUALTY INSURANCE COMPANY, in its capacity as Surety on the Official Bond of the Sheriff of Wake County, Defendants.


MALCOLM J. HOWARD, Senior District Judge.

This matter is before the court on defendants' motion for summary judgment. Plaintiff has responded, and defendants have replied. Plaintiff has also filed a motion to file a sur-reply, attaching her proposed sur-reply. Defendants object to the motion to file a sur-reply. Defendants have also filed a motion in limine to exclude plaintiff's expert witness. Plaintiff has also responded to the motion in limine, and defendants have replied. These matters are ripe for adjudication.

The court has reviewed plaintiff's motion to file a sur-reply as well as defendants' objections thereto. The court GRANTS plaintiff's motion to file a sur-reply, and the sur-reply is considered in the court's decision on the motion for summary judgment herein.


This matter arises out of the death of Adam Carter on February 11, 2012. A Wake County Sheriff's Deputy was dispatched to the home where Adam Carter was staying in response to a 911 call from his uncle. Within minutes of the deputy's arrival at the scene, Carter was fatally shot. This case was brought by the decedent's mother, Raina Conner. The Third Amended Complaint in this matter seeks compensatory and punitive damages arising out of eight causes of action including three claims pursuant to 42 U.S.C. ยง 1983 (a Monell claim, an excessive force claim and an inadequate training and supervision claim) and claims for negligence/gross negligence/willful and wanton misconduct, negligent hiring/retention, assault and battery, North Carolina Constitutional claims, and Liability of Official Bond.


On February 11, 2012, Adam Carter was staying at the home of his uncle Todd McElfresh. Carter, who had recently been hospitalized for emotional and substance abuse issues, was intoxicated and had become emotionally distraught and wanted to be transported back to a psychiatric facility, Holly Hill Hospital ("Holly Hill"). No one answered the phone when McElfresh and/or Carter attempted to call Holly Hill, so McElfresh called 911 and requested assistance in having Carter transported to a treatment facility. McElfresh's call was transferred to a dispatcher, defendant Kelly Mitchell. McElfresh informed the dispatcher that Carter had recently received in-patient care for mental health and substance abuse issues and needed transport to a mental health facility. Wake County Sheriff's deputies were dispatched to the house at 5425 Live Oak Trail, Raleigh, to respond. Wake County Sheriff's Department Deputy Tavares Thompson ("Deputy Thompson") was first to arrive at the scene. After briefly conferring with McElfresh, Deputy Thompson followed McElfresh into the residence. Upon entering the home, Deputy Thompson saw Carter at or near the top of a four-step stairwell leading from the foyer or entryway up to a living area. McElfresh told Carter that his ride was here. Carter began descending the stairs. At some point, Deputy Thompson realized Carter had a knife in his hand. Deputy Thompson told Carter to drop the knife several times. Carter did not comply, and Thompson fired two shots, killing Carter.

While the above provides a general framework for the events of February 11, 2012, the details of the brief time (mere second to minutes) between Deputy Thompson entering the residence and the firing of his weapons are disputed. These factual issues are heavily briefed by the parties, and the court need not repeat them in great detail. Chief among the disputes are (1) exactly where Deputy Thompson was standing in relation to the front door (whether back against a wall or directly in front of the door); (2) the position of the knife during Carter's descent on the stairs (whether he changed hands, raised the knife, etc.); and, (3) Carter's speed and agility in descending the stairs (whether falling down drunk or lunging at the deputy). However, viewing the evidence in the light most favorable to the non-moving party, here the plaintiff, the court notes the following evidence: Thompson testified that he saw Carter with the knife in his hand while Carter was on the second step and while Thompson had just crossed the threshold of the front door. The front door remained opened at all times. The knife Carter had in his hand was a small paring knife. Carter slowly staggered down two steps while holding on to the wall to support himself. McElfresh testified that Carter never rushed toward Thompson or made any aggressive moves or steps.


I. Standard of Review

Summary judgment is appropriate pursuant to Rule 56 of the Federal Rules of Civil Procedure when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986).

Once the moving party has met its burden, the non-moving party may not rest on the allegations or denials in its pleading, Anderson , 477 U.S. at 248, but "must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Summary judgment is not a vehicle for the court to resolve disputed factual issues. Faircloth v. United States , 837 F.Supp. 123, 125 (E.D. N.C. 1993). Instead, a trial court reviewing a claim at the summary judgment stage should determine whether a genuine issue exists for trial. Anderson , 477 U.S. at 249.

In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the non-moving party. United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962) (per curiam). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson , 477 U.S. at 247-48. The evidence must also be such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. Accordingly, the court must examine "both the materiality and the genuineness of the alleged fact issues" in ruling on this motion. Faircloth , 837 F.Supp. at 125.

II. Analysis

A. Excessive Force Claim

Whether excessive force was used is determined by applying a standard of objective reasonableness to the particular circumstances of a case. In ...

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