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Knight v. City of Fayetteville

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

February 10, 2017

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.


         This 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 summary judgment.


          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.

         Plaintiff 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 protective order.

         On July 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.

         In 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 discovery.

         In 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 photographs.[1]

         On 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 material facts.

         On 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, 2016.[2]


         The 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).[3]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).[4]

         Burlingame 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).

         “[B]ecause 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. 83-84).

         While 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).

         Burlingame 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).

         In the 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.).

         Burlingame 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.).

         Defendant 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 89).

         As 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.).

         The 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 slow-motion video.

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 & 12).

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 shooting position.

(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”;[6] 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 planted behind.

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 be heard).

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.

         In 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).

         Defendant 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.[7]

         Defendant 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).

         Defendant 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.).

         The 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 located. (Id.).

         When 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).

         Thereafter, 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).

         Graham 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).


         A. plaintiff's Motion to Strike (DE 71)

         Plaintiff 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.” Fed.R.Civ.P. 26(a)(2)(B).

         Defendants 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.

         Likewise, 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 testimony.

         Finally, 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.

         By 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 judgment.

         In sum, 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.

         B. Defendants' Motion to Strike in the Alternative (DE 90)

         Defendants 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.

         C. Motions to Seal (DE 79, 88)

         Plaintiff 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, ...

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