United States District Court, E.D. North Carolina, Western Division
TRACIE KNIGHT, Administrator for the Estate of Lawrence Graham, Plaintiff,
CITY OF FAYETTEVILLE; DENTON LITTLE, both individually and in his official capacity as a law enforcement officer with the Fayetteville Police Department; and HAROLD MEDLOCK, both individually and in his official capacity as a law enforcement officer with the Fayetteville Police Department, Defendants.
matter is before the court on defendants' motion for
summary judgment (DE 34), plaintiff's motions to strike
and to seal (DE 71, 79, 88), and defendants' motion to
strike in the alternative (DE 90). The motions have been
fully briefed and are ripe for ruling. For the following
reasons, the court grants in part and denies in part
plaintiff's motions, denies as moot defendants'
motion to strike, and grants defendants' motion for
Plaintiff filed suit on May 1, 2015, in Cumberland County
Superior Court, as administratrix for the estate of Lawrence
Graham (“Graham”), asserting claims arising out
of a May 1, 2013, traffic stop encounter between Graham and
defendant Denton Little (“Little”), a
Fayetteville Police Department (“FPD”) officer,
during which Little shot Graham twice in the back. Graham
allegedly died from complications of the shooting. Plaintiff
seeks compensatory and punitive damages against defendant
Little, together with the City of Fayetteville
(“City”) and Harold Medlock, Chief of the FPD.
makes claims under 42 U.S.C. § 1983 against Little in
his individual and official capacities, asserting use of
excessive force in violation of the Fourth Amendment.
Plaintiff also asserts state law negligence claims against
Little, in addition to claims against the City and Medlock,
in his individual and official capacites, for deliberate
indifference, wrongful death, negligence, and
unconstitutional and improper policies and practices. On June
19, 2016, defendants answered the complaint, denying any
liability. A period of discovery ensued, governed by consent
18, 2016, defendants filed the instant motion seeking
judgment as a matter of law, wherein they rest upon
governmental immunity, public official immunity, and
qualified immunity. Defendants also argue that plaintiff has
failed to establish a genuine issue of material fact as to
her claims. Defendants rely upon the written testimony of 1)
defendant Little; 2) Phillip Burlingame
(“Burlingame”), a second officer involved with
the traffic stop; 3) Bryan Bailey (“Bailey”),
Chief Firearms Instructor for the FPD; 4) Dr. Lauren Scott
(“Scott”), Associate Chief Medical Examiner; 5)
Chad Thompson (“Thompson”), an expert retained
for the defense; 6) Douglas J. Hewett (“Hewett”),
City Manager; and 7) Billy West (“West”),
District Attorney. Defendants also rely upon digital video
discs (“DVDs” or “dash-cam videos”)
storing digital data taken from police officer patrol cars at
the time of the incident in question.
response, plaintiff seeks this court to strike as untimely
proposed expert testimony of Scott, the medical examiner who
performed the original autopsy; West, the Cumberland County
District Attorney; and Bailey, a Chief Firearms Instructor
with the FPD, on which defendants rely. Plaintiff contends
plaintiff had no notice these witnesses would be used as
experts until their affidavits were filed with
defendants' motion. Plaintiff offers here the expert
reports of its experts, Roger A. Mitchell, Jr. M.D.
(“Mitchell”), and Gregory G. Gilbertson, M.S.
(“Gilbertson”), to highlight prejudice plaintiff
would suffer in the event the court was to consider testimony
from these individuals. In the alternative, particularly with
reference to Scott, plaintiff seeks leave to reopen
defense of motion, plaintiff relies upon documentary evidence
together with written and deposition testimony. More
particularly, plaintiff argues against entry of judgment in
defendants' favor with reference to testimony of four
individuals as follows: 1) Little deposition transcript; 2)
expert report and deposition transcript of Gilberston,
Director and Professor of the Criminal Justice Program at
Centralia College; 3) Burlingame deposition transcript; and
4) declaration of James E. Buxton, Jr.
(“Buxton”), President of the Fayetteville branch
of the National Association for the Advancement of Colored
People. Plaintiff also relies upon North Carolina State
Bureau of Investigation (“SBI”) file number
2013-00883 regarding the incident at issue in this case (the
“SBI file”); and autopsy
November 4, 2016, the court directed plaintiff to file an
opposing statement of material facts as required by Local
Rule 56.1. Plaintiff filed opposing statement November 22,
2016, referencing exhibits filed November 17, 2016, including
SBI reports of statements made by Burlingame, Little, and
Graham, as well as FPD investigatory documents including
still images of the dash-cam video, diagrams of the scene,
and a report of an interview with Little. Plaintiff filed on
November 17, 2016, another pending motion to seal which
pertains to certain exhibits filed in conjunction with
plaintiff's response to defendant's statement of
December 1, 2016, defendant filed objections to
plaintiff's statement of material facts, or, in the
alternative, a motion to strike any reference, citation, or
use of the SBI report of Graham's statement in
plaintiff's statement of material facts, to which
plaintiff filed a response in opposition on December 6,
undisputed facts, as well as disputed facts viewed in the
light most favorable to plaintiff, may be summarized as
follows. On May 1, 2013 at approximately 8:05 a.m., FPD
officer Burlingame observed a gold Toyota Corolla operating
with a window tint violation. (DE 89 at 1).Burlingame initiated a
traffic stop by activating his blue lights and siren and
pulling behind the suspect vehicle on Sourwood Drive.
(Id. at 1-2). After the suspect vehicle stopped,
Burlingame exited his patrol car. Burlingame approached the
suspect vehicle, and determined it was occupied by a driver
and a front seat passenger. (Id. at 2). Burlingame
introduced himself to the driver and stated he had been
stopped “because the tint on these windows is
dark.” (dash-cam video 08:06:34).
asked the driver for his driver's license and
registration. (DE 89 at 2). The driver of the vehicle told
Burlingame that he did not have a driver's license or
identification (“ID”). (Id.). The driver
gave Burlingame a birthdate and name. The driver seemed very
nervous. (Id.). The passenger provided an
identification card with the name of Lawrence Graham, III.
(Id.). Burlingame told the subjects to sit tight and
that he would be back shortly. (Id. at 2-3). While
Burlingame was speaking with the driver he could smell a
strong odor of marijuana coming from inside the vehicle.
(Id. at 3).
of the smell of marijuana coming from the suspect vehicle,
[Burlingame] contacted dispatch” to have another unit
respond to his location to assist with the traffic stop.
(Burlingame Aff. (DE 36-2) ¶8). He stated over his
radio: “I want to do a search . . . this guy's kind
of antsy.” (dash-cam video 08:09:37). Defendant Little
heard Burlingame's request for another unit and told the
dispatcher he was en route. (Little Dep. (DE 74-1) 82).
Defendant Little arrived on scene in about five minutes and
pulled up behind Burlingame's patrol car, without
activating his own lights or dash-cam video. (Id.
Burlingame was waiting for defendant Little to arrive, he
used his computer system databases to determine that the
driver of the vehicle had given a fictitious name but an
accurate birthdate. It was later determined that the
driver's actual name was Antoine Willis
(“Willis”). When defendant Little arrived,
Burlingame stated to him: “Smells like weed. The
driver's lying to me, ” and Burlingame explained
that the driver had given false information about his name.
(Dash-cam video 08:13:58). Defendant Little noticed that the
occupants were “moving all around” and hitting
the breaks, and he suggested “you want to go ahead and
pick up one of them?” (Id. 08:14:16). The
officers had decided to remove the occupants and search them
one at a time due to the strong odor of marijuana coming from
the vehicle and for officer safety. (Burlingame Aff.
¶12; Little Aff. ¶¶ 6-8).
and defendant Little approached the vehicle. (DE 89 at 4).
Both were dressed in their on duty uniforms which clearly
identified them as members of the FPD. (Id. at 4-5).
Burlingame went to the driver's door where Willis was
seated, and defendant Little went to the passenger's door
where Graham was seated. (Id. at 5). Burlingame
asked Willis to step out of the car and explained to him the
reason was that there was a strong odor of marijuana coming
from the vehicle and that he was going to search him. (DE 89
at 5). Burlingame explained that defendant Little was a
canine officer. (dash-cam video 08:14:38).
meantime, once defendant Little was at the passenger door, he
saw that Graham “went to sit up and get out of the
vehicle, like grabbed the door handle of the passenger side .
. . on the interior, at which time [defendant Little] told
him to sit tight.” (Little Dep. 88). Defendant Little
also can be seen on the dash-cam video motioning to Graham to
stay in place. (Dash-cam video 08:14:39). Willis then
complied with Burlingame's search request, stepped from
the vehicle and walked back to Burlingame's patrol car
with Burlingame. (DE 89 at 5). The driver's door remained
open after Willis exited the vehicle to go with Burlingame.
(Id.). At this point, the smell of marijuana became
more prominent to Burlingame. (Id.).
had Willis place his hands on his patrol car and began
searching around the waistband of Willis for drugs.
(Id. at 6). As Burlingame was searching the waist
area of Willis, he discovered a bag of marijuana between
Willis's pants and boxer shorts. (Id.). Further
investigation revealed that Willis had several smaller bags
of marijuana packaged and hidden in his pants.
(Id.). He also had another bag of what appeared to
be crack cocaine. (Id.).
Little observed portions of the search of Willis's
person, and saw that there was a “plastic sandwich
baggy . . . coming out of his waistband, ” which based
on his training and experience he understood to be consistent
with controlled substances and how they are packaged. (Little
Dep. 90). Graham asked defendant Little what was going on
with “bro” and defendant Little for the second
time told Graham to “sit tight.” (Id. at
Burlingame started to retrieve another plastic bag of
marijuana from Willis's waist area, defendant Little
observed that Willis attempted to flee from Burlingame. (DE
89 at 6; Little Aff. ¶12). Little observed that
Burlingame was able to grab Willis by the bottom of his shirt
and prevent him from getting away. (Id.). Defendant
Little observed that Willis tried to push away from
Burlingame, but Burlingame was able to keep his hands on
Willis and put him on the ground. (Id.). Willis
screamed loudly when he was on the ground. (Id.). At
that moment, defendant Little observed that Graham had begun
to move across the console of the car to flee via the open
driver's side door. (Id.).
dash-cam video reveals the next few seconds of activity
involving defendant Little and Graham, which the court
describes in detail in chronological order as set forth in
the table below:
08:15:45 (slow motion video elapsed media time
Little, at passenger side of car looking into
window, motions downward with left arm and hand. At
this moment, on the full-speed video, Willis can be
heard scuffling and screaming loudly; the same
sound is distorted to a lower pitch in the
08:15:45 (media time 00:14)
Little, at passenger side of car, crouches to look
through passenger window, raises left hand back up.
08:15:46 (media time 00:15)
Graham's head and shoulders emerge out of
driver's side of car through open door. Little
raises head over top of car and is starting to move
around trunk of car.
08:15:46 (media time 00:19)
Graham moves out the driver's side open door,
in sprinting position, leading with right arm and
hand holding a handgun; gun barrel pointed straight
out at end of arm, extending out at 45 degree angle
down to ground. Little is running around trunk of
car looking directly at Graham. (Corresponds to
still image of video filed at DE 86-6 pp. 6 &
08:15:47 (media time 00:21)
Graham is completely out of car on two feet, moving
to center of road, and looking to his right and
facing away from Little. Little is behind trunk of
car looking at Graham.
08:15:47 (media time 00:21 to 22)
Graham, with gun in hand, at center line of road,
turns sharply to proceed towards area out in front
of car, with left arm and leg extended out to left,
in process of making sharp turn around driver's
side door. Graham's right arm, hand, and gun
are pointing upwards as Graham is in stride.
08:15:47 (media time 00:24)
Little is in pursuit of Graham, and has just placed
his hand on holster of gun.
08:15:47 (media time 00:25)
Graham is directly in front of Little, who is
blocking the view of Graham entirely with his own
body, in pursuit. Little has his hand on gun
holster, starting to draw his gun from holster.
08:15:48 (media time 00:26)
Graham is at center line of road, moving in
direction diagonally towards the right side of the
road in the area in front of the car. Graham is in
running position, left foot on left center line of
road, right foot in air leading his stride, right
arm moving at side with gun showing in right hand.
Graham's right elbow is bent at about 45 degree
angle, with forearm and hand still extending out at
about 45 degree angle down to the ground.
Graham's head, body, right arm, and legs are in
view, not yet blocked by any portion of car. Graham
is starting to turn his face somewhat in view of
camera and Little.
08:15:48 (media time 00:26)
Graham one-half step further, in full stride,
starting to turn his head towards Little. Right arm
still holding gun and pointed at an angle towards
the ground. Little also in full stride continuing
to move hand upwards drawing gun from holster.
(Corresponds to still image of video filed at DE
86-6 p. 11).
08:15:48 (media time 00:27)
Graham has turned head to face Little, at the
moment Graham is in the view right before the left
edge of the driver's side door. Graham's
shoulder is aligned in the view just above the top
left corner of the driver's side door.
Graham's face is visible immediately above his
shoulder looking back.
08:15:48 (media time 00:27)
Graham one step further, with his head turned so
his face is partly visible to camera and Little.
Graham's right arm is now bent at elbow, with
hand raised higher with gun still in hand, as
visible through the open driver's side window
of car. Little still in full stride in pursuit,
with gun in hand now fully out of holster.
(Corresponds to still image of video filed at DE
86-6 pp. 9 & 10)
08:15:48 (media time 00:28)
Graham's head and shoulders cross into the area
on the video that can be viewed through and above
the open window of driver's side door of car.
Graham's lower legs are no longer visible. His
arm is lowered back down still holding gun in hand,
clearly contrasted with road surface, pointed
parallel to ground then downward, as still visible
through the open driver's side window of car.
Little still in stride in pursuit, has raised arm
with gun to shooting position.
08:15:49 (media time 00:30 to 31)
Graham moving further right, with head, right
shoulder, and arm fully into the area that can be
seen above the driver's side door of car. His
right elbow is rising along with forearm.
Graham's left elbow, waist, belt, and upper
legs are still visible through open window of the
driver's side door of car. Little still in
pursuit, shortened stride, arm outstretched in
(Corresponds to still image of video filed at DE
86-6 p. 4).
08:15:49 (media time 00:32)
Graham continuing, with whole torso now into the
area that can be seen above the driver's side
door of car, with swift movement of arm towards
right in front of car. Little still in pursuit,
shortened stride, arm outstretched in shooting
position. (At this moment, on the full-speed video,
a police officer can be heard yelling out something
that sounds like “watch your
shot”; the slow-motion video does
not reveal decipherable sounds).
08:15:49 (media time 00:33)
Graham's arms now blocked in view by side and
top of car, with only head and torso still visible,
seen moving or jumping suddenly upwards and
forward. Little now stationary, with right leg
leading, right arm stretched out in shooting
posture, left arm out to left side, left leg
08:15:49 (media time 00:34)
Only tip of Graham's head remaining in view
above top corner of car, moving in direction out of
view. Little has moved into view in area partially
blocked by driver's side door of car, leaning
further forward in direction of Graham, but with
left leg brought up slightly. (At this moment, on
the full-speed video (media time 10:18), and the
slow motion video (media time 00:34) the sound of a
first gunshot from defendant Little's gun can
08:15:50 (media time 00:35)
Little is advancing forward with outstretched arm,
torso viewable in space seen through driver's
side window, and head and arm viewable in space
above driver's side door. (At this moment, on
the full-speed video (media time 10:18), the sound
of a second and third gunshot from defendant
Little's gun can be heard).
08:15:50 (media time 00:37)
Little's right arm advances into area blocked
in view by side and top of car.
08:15:51 (media time 00:40)
Little has moved entirely out of view into area
blocked by side and top of car.
08:15:52 (media time 00:49)
End slow-motion video run time.
supplement to the information provided by the dash-cam video,
defendant Little testified that he observed that Graham was
grasping the handle of a gun in his hand at one moment where
Graham was in stride and was pointing the gun in the air.
(Little Dep. 95). It was at that point, that defendant Little
drew his weapon from the holster, (see id.),
corresponding to the time 08:15:47 in the time-line above,
where Graham points his gun momentarily in the air while in
stride. Defendant Little recognized and was familiar with the
Glock 22 handgun that Graham had in his hand, and defendant
Little knew from his training, education, and experience that
the Glock 22 handgun can be fired from the firing grasp
position in less than 1 second. (Little Aff. ¶ 17).
Little also testified that he could still see the gun in
Graham's right hand, when Graham looked back at defendant
Little, (Little Dep. at 97-98), which corresponds to the time
08:15:48 in the time-line above. Further, defendant Little
testified that before firing his first shot, defendant Little
observed Graham's arm “about chest high, ” in
the process of extending out from his body to the right of
his body, where it broke a “90 degree plane, ”
such that defendant Little saw the “barrel of the
weapon was coming back” in defendant Little's
direction. (Id. 100-101; see Little Aff.
¶ 20; DE 86-4 at 6). Although such observed arm
movements are not shown completely in the dash-cam video, the
video at the beginning 08:15:49 shows Graham's right arm
rising and moving rapidly towards the right, as he is moving
out of view, in the fraction of second before the first shot
is fired. Unbeknownst to defendant Little, Graham had
commenced these observed arm movements with the intention of
throwing his gun, and Graham had released his gun into the
air during the 08:15:49 second before being hit by the first
bullet shot by defendant Little.
Little was looking at the center of Graham's body as he
fired his gun at Graham three times in short succession, and
he did not see the Graham's gun fly from Graham's
hand or its trajectory. (Little Dep. 103-105). Two of
defendant Little's shots hit Graham in the back between
08:15:49 and 08:15:50, and Graham fell to the ground a
fraction of a second thereafter near the right side of the
road in front of the car. (Id. at 107).
Little yelled for Burlingame to come and assist, so he could
get Graham handcuffed. (DE 89 at 18). Defendant Little also
notified dispatch that shots had been fired and emergency
medical services were needed. (Id.). Burlingame did
not observe the shots being fired because he was trying to
secure Willis, but he heard three shots fired.
(Id.). Burlingame turned toward the area where he
heard the shots come from and observed defendant Little with
his gun drawn covering Graham. (Id.). Burlingame
told defendant Little to maintain his position while he
secured Willis. (Id. at 19). Burlingame secured
Willis and put him in his patrol car. (Id.).
Burlingame then ran over to defendant Little who continued to
cover Graham by pointing his weapon. (Id.).
officers approached Graham together with defendant Little
still covering Graham at gunpoint due to the officers not
knowing if Graham still had the weapon. (Id.).
Burlingame instructed Graham to roll over. (Id.).
When Graham stated he could not move his legs, Burlingame did
not move Graham's lower body, but placed him in
handcuffs. (Id.). Burlingame stayed with Graham
until backup arrived. (Id.). Defendant Little
maintained cover on Graham until backup arrived because the
officers still did not know where Graham's gun was
Burlingame came over to assist defendant Little, defendant
Little stated “I don't know where the gun is at - I
don't know if it's underneath him or where it's
at, ” as can be heard on the dash-cam video. (Dash-cam
video 08:19:22 to 08:19:25). Two other officers arrived on
the scene, and at one point on their dash-cam video can be
heard the exchange: “Where's the weapon at?”
followed by a response “I don't know - I had him at
gunpoint.” (Roth-Roffy dash-cam video at 08:20:08 to
08:20:12). While officer Burlingame was over near Graham, an
officer can be heard asking “where's the weapon you
had?” to which Graham responds “I threw it,
man.” (Dash-cam video 08:21:08). Then, Graham asks
“what did you shoot me for, man?” to which no
response can be heard. (Dash-cam video 08:21:08).
defendant Little searched in the grass in the area around
Graham, while Burlingame was working to secure Graham's
arms in handcuffs. (Roth-Rothy dash-cam video at 08:20:28 to
08:20:46). Eventually, defendant Little was able to see the
weapon about 30 feet away from Graham, “on the other
side of [a] chain link fence, ” and directed another
officer to secure the area around the weapon. (Little Aff.
¶ 24; Little Dep. DE 74-1 at 119).
was transported to Cape Fear Valley Medical Center and
treated on May 1, 2013, where he was diagnosed as paralyzed
from the waist down as a result of the gunshot wounds. (DE 89
at 20; see DE 36-4 at 9). Graham then entered into a
rehabilitation center. (See id.). On July 2, 2013, a
few days after being discharged from rehabilitation, Graham
collapsed at his home and died. (See id.). An
autopsy report was prepared by Scott, based upon an autopsy
examination conducted on July 3, 2013. (DE 36 ¶4; DE
36-4 at 5). The autopsy report describes two gunshot wounds
in Graham's body: 1) one which partially lacerated the
thoracic spinal cord, with wound track from Graham's back
to front, left to right and slightly upward; 2) the other
which perforated parts of the kidney and small intestine,
with wound track from back to front, slightly upward without
veering significantly right or left. (DE 36-4 at 6-7). The
autopsy report states Scott's opinion that “the
cause of death is a pulmonary embolus due to deep venous
thrombosis, due to paraplegia, due to a gunshot wound to the
back.” (Id. at 9).
plaintiff's Motion to Strike (DE 71)
moves to strike testimony of Scott, West, and Bailey, upon
which defendants rely, on the basis that opinions stated in
their affidavits were not timely disclosed pursuant to
Federal Rule of Civil Procedure 26(a)(2). In general,
“a party must disclose to the other parties the
identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or
705” as experts. Fed.R.Civ.P. 26(a)(2)(A).
“Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written report -
prepared and signed by the witness - if the witness is one
retained or specially employed to provide expert testimony in
the case or one whose duties as the party's employee
regularly involve giving expert testimony.”
were not required to disclose Scott, West, and Bailey as
experts in this case because these witnesses were not
retained or specially employed to provide expert testimony.
Scott, for example, states in her affidavit that, as part of
her duties as Associate Chief Medical Examiner at the North
Carolina Office of the Chief Medical Examiner, she prepared
an autopsy report of her examination of Graham, and provided
the report of complete autopsy examination on or about
September 23, 2013, before commencement of the instant
action. (See DE 36-4 ¶¶ 1-4). As such,
defendants did not need to disclose Scott as an expert for
purposes of testifying as to what she did in her autopsy
examination and the findings thereof.
West testifies as to actions he took in determining whether
criminal charges were warranted against the police officers
involved in the instant action. (DE 36-9). Defendants did not
need to disclose West as an expert for purposes of such
Bailey testifies to the actions he took as part of an
internal investigation into the shooting incident in this
case as an employee of the FPD, particularly as to his
examination of photographs of Graham's gun. (DE 36-3).
Defendants did not need to disclose West as an expert for
purposes of such testimony.
contrast, portions of Scott's affidavit constitute
testimony that goes beyond merely stating what she did in her
autopsy examination and the findings thereof. Scott
testifies, for example, “In my professional opinion, to
a reasonable degree of medical certainty, the gunshot wound
to the thoracic spinal cord would not prevent Mr. Graham from
having the strength and ability to throw a gun approximately
thirty feet over a fence.” (DE 36-4 ¶8). Here,
Scott is providing an opinion as a medical professional
regarding a matter beyond the scope of her autopsy
examination. Defendants have not laid a foundation for
Scott's ability to testify reliably as to Graham's
ability to throw after a gunshot wound to the thoracic spinal
cord. While the court recognizes defendants' argument
that Scott is offering an opinion akin to that of a treating
physician, Scott's testimony at paragraphs 6-9, and 12,
of Scott's affidavit is at the outer bounds of such
analogy, and plaintiff has demonstrated sufficiently
plaintiff's surprise by the inclusion of such testimony
without prior disclosure. Therefore, the court strikes, and
does not consider, paragraphs 6-9, and 12, of Scott's
affidavit, for purposes of the instant motion for summary
based on the foregoing, plaintiff's motion to strike is
granted in part and denied in part as set forth herein. For
the same reasons, plaintiff's alternative motion to
reopen discovery is denied.
Defendants' Motion to Strike in the Alternative (DE 90)
object to a portion of plaintiff's statement of material
facts, or, in the alternative, move to strike any reference,
citation, or use of the SBI report of Graham's statement
in plaintiff's statement of material facts. The court
need not reach defendants' alternative motion to strike
because the court addresses the substance of defendants'
objection in the court's analysis of defendants'
summary judgment motion, as set forth in further detail
below. Accordingly, defendants' alternative motion to
strike is denied as moot.
Motions to Seal (DE 79, 88)
moves to seal the SBI file and autopsy photographs
provisionally sealed by the court on September 15, 2016.
Plaintiff also moves to seal certain exhibits filed in
conjunction with plaintiff's response to defendant's
statement of material facts. Plaintiff reserves the position,