United States District Court, W.D. North Carolina, Charlotte Division
GENGER POOLE, as Administrator of the Estate of William Dean Poole, Plaintiff,
GASTON COUNTY; W. P. DOWNEY; and J. E. KNUPP, Defendants.
C. Keesler, United States Magistrate Judge.
MATTER IS BEFORE THE COURT on “Defendant
Gaston County's Motion For Summary Judgment”
(Document No. 101); the “Motion For Summary Judgment Of
Defendants J.E. Knupp, W.P. Downey, T.R. Earl, and A.O.
Holder” (Document No. 103); and “Defendants'
Motion To Strike Affidavit Of J.C. Dowell, Jr.
[#113-1]” (Document No. 123). The parties have
consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c), and these motions are now ripe for
disposition. Having carefully considered the motions, the
record, applicable authority, and the arguments of counsel at
a hearing on September 13, 2017, the undersigned will
grant the motions for summary judgment and
deny the motion to strike as moot.
facts of this matter are undeniably tragic. On March 16,
2015, William Dean Poole (“Mr. Poole”) “was
at his residence located at 130 Wedowee Lane, Gaston County,
North Carolina.” (Document No. 2, ¶ 21). At about
3:15 p.m., Mr. Poole's wife, Genger Poole
(“Plaintiff”) arrived home and “Mr. Poole
communicated to her that he was in a great deal of
pain.” Id. See also, (Document No. 26, p.6)
(“he was in extreme pain”). According to
Plaintiff, “Mr. Poole contacted the Veteran's
Affairs Suicide hotline and made demands for pain medications
and threats he would harm himself.” (Document No. 2,
¶ 22). See also, (Document No. 26, p.6)
(“Poole expressed suicidal ideations”).
has previously asked the Court to take judicial notice of a
911 call made by the National Veteran's Crisis Line that
began at 5:05:42 p.m. on March 16, 2015, and which has also
been attached to Defendant Gaston County's pending
motion. See (Document No. 26, pp.4-6; and Document
No. 101-1, pp.2-3). The transcript of that 911 call indicates
that the “Caller” from the National Veteran's
Crisis Line informed the “Dispatcher” at Gaston
County Communications (or 911) that there was a veteran on
the phone “saying that he's suicidal.”
(Document No. 26, p.4; and Document No. 101-1, p.2). The
Caller further relayed to the Gaston County Dispatcher: Mr.
Poole's address on Wedowee Lane; that he was upset with
his doctor for taking pain medication away; that he had over
400 guns on his premises; that he planned to shoot himself;
that if police come to his house it won't end well; and
that he was talking about taking out others before himself.
(Document No. 26, p.5; and Document No. 101-1, p.2). In
addition, the Caller reported that Mr. Poole had been walking
around with a .357 in his hand and that he lived with his
wife. Id. The Dispatcher stated “we'll get
police and paramedics started that way.” (Document No.
26, p.5; and Document No. 101-1, p.3). The call ended at
5:10:10 p.m. (Document No. 26, p.6; and Document No. 101-1,
the conversation, Gaston County police were called to
complete a wellness check on Mr. Poole who reported as a
suicidal individual who did not wish for the police to be
summoned.” (Document No. 2, ¶23). Apparently, soon
after the conversation with the National Veteran's Crisis
Line, Mr. Poole informed Plaintiff and his son-in-law that he
was going to visit his grandchildren who also lived on
Wedowee Lane. See (Document No. 2, ¶24;
(Document No. 108-3, ¶¶ 13-14). “Mr. Poole
was disabled due to severe back pain caused by a motorcycle
accident and injuries sustained in the terrorist attack
against the Marine barracks in Beirut.” (Document No.
2, ¶17). As such, Mr. Poole's “normal mode of
transportation in his neighborhood was his John Deere
lawnmower.” (Document No. 2, ¶¶18-19);
see also (Document No. 108-3, ¶15).
same time the Caller from the National Veteran's Crisis
Line was sharing information about Mr. Poole with Gaston
County Communications, Catrina Love (“Love”) at
the Communications Center was entering a description of the
call into the Computer Aided Dispatch (“CAD”)
system. (Document No. 102, p.2); see also (Document
No. 101-2). The CAD description advised Gaston County
responders that Poole:
“says he plans on shooting himself...has a lot of guns
in the house and will shoot police if they
come”…” he was walking around last night
w/a 357 in his hands...has been going on for the past few
nights” ...”pt. has PTSD”...” he has
a wife, not sure if she's (sic) there or not.”
(Exh. B, Detail Call for Service, Bates 10248-10249 at 10248.
No. 102, p.2).
County Police Department (“GCPD”) dispatched
Officers Erin M. Williams (“Williams”) and Jeff
Bryant (“Bryant”). (Document No. 102, p.3).
Additional GCPD officers also responded to the situation at
Mr. Poole's address, including Defendants W. P. Downey
(“Downey”), J. E. Knupp (“Knupp”), T.
R. Earl (“Earl”), and A. O. Holder
(“Holder”). (Document No. 2, ¶¶25-27);
see also (Document No. 102, p.3).
Defendant Earl, who was on patrol duty and was at the desk in
the police station when the initial call came in. (Exh. J,
Earl Depo at 15). After hearing the seriousness of
the call, Defendant Downey responded given his
training as a crisis negotiator. (Exh. D, Downey
Depo. at 20-21, 43). Defendant Holder responded due to
the nature of the call, and as a K-9 handler, he usually
responds to serious calls. (Exh. K, Holder Depo. at
13, 16, 32-33). Defendant Knupp was the Sergeant in charge of
the area where Poole's residence is located. (Exh. L,
Knupp Depo. at 50-51). While en route, Defendant
Downey called Officer Brian Rogers who was also an ERT
negotiator and discussed having Officer Rogers in
communications or at the scene. (Exh. D, Downey Depo.
Trans. at 21, 42). Defendant Knupp was informed that
Rogers was coming to the scene and medical personnel
were staging until the police had secured the scene.
(Exh. L, Knupp Depo. at 44; Exh. D, Downey
Depo. at 91). Attempts were made to call Poole
back and to try to resolve the situation peacefully.
Exh. D Downey Depo. at 103-105.
Id. (Emphasis added). Defendants note that
“Gaston Emergency Medical Services will not enter a
suicidal suspect scene until it has been secured by
police.” (Document No. 102, p.3, n.4) (citing Document
No. 101-4, p.19; Document No. 101-12, p.11; Document No.
arriving, officers staged at the entrance to Wedowee
Lane.” (Document No. 102, p.3). Officers Holder and
Bryant observed Mr. Poole exit a mobile home and mount a
riding lawn mower, which he drove a short distance before
hitting an object. (Document No. 102, p.4). The mower's
engine stopped and Mr. Poole got off the mower and looked
under the mower. Id. (citing Document No. 101-11,
p.8). Downey testified that he and Knupp saw this as an
opportunity to confront Mr. Poole. Id. (citing
Document No. 101-4, pp.11, 15-16).
contend that the decision to approach Mr. Poole at this time
was based on several factors, including that: he was alone,
thus negating a potential hostage situation; he was not in a
position to barricade himself; he was away from the large
cache of weapons he claimed to own; no firearm was observed
on his person - and the officers thought it was unlikely he
would be armed while cutting the grass. (Document No. 102,
p.4) (citing Document No. 101-4, pp.1516 and Document No.
101-12, pp.9-10). GCPD officers then “advanced with
their weapons in the low ready position.” Id.
and Knupp rounded the end of the mobile home and confronted
Mr. Poole, who was facing them while sitting on the mower
about ten (10) yards away. Id. Knupp began shouting
“Police, let me see your hands.” Id.
Meanwhile, Earl and Holder were arriving at the end of the
mobile home. Id. Mr. Poole “yelled
‘why' or ‘what for' and immediately
leaned back and pulled his shirt up and opened some type of
holster.” (Document No. 102, pp.4-5). Downey then
yelled “don't do it, don't do it.”
(Document No. 102, p.5). “Poole then pulled out a
pistol, pointed it up into the air, and immediately began
lowering the pistol in a motion consistent with gaining
target acquisition upon Defendant Officers.”
Id. (citing Document No. 101-4, pp.26-30; Document
No. 101-12, pp.7-8; Document No. 101-11, pp.11-14; Document
No. 101-10, pp.6-11).
Downey, Knupp, Holder, and Earl then “discharged their
weapons in response to Poole's potentially lethal
actions.” (Document No. 102, p.5). Mr. Poole sustained
several fatal gunshot wounds, including to the head and the
chest, and died immediately. Id. (citing Document
No. 26-5); see also (Document No. 2, ¶¶
36-37). “The entire confrontation lasted approximately
three (3) to five (5) seconds.” Id. (citing
Document No. 101-4, p.28; Document No. 101-12, pp.7- 8;
Document No. 101-11, pp.11-14; Document No. 101-10, p.12).
Officer Earl testified that the period of time between the
GCPD officers' first and last shot was “less than a
second because, like I said, it sounded like we all fired at
the same time.” (Document No. 101-10, p.12).
Genger Poole, as administrator of the Estate of William Dean
Poole, initiated this action with the filing of her verified
“Complaint” (Document No. 2) on July 17, 2015,
against Gaston County, Sergeant J. E. Knupp, Sergeant W. P.
Downey, Officer T. R. Earl, and Officer A. O. Holder
(together, “Defendants”). The Complaint asserts
claims for: (1) Excessive Force Against Gaston County -
Petition for Injunctive Relief; (2) Excessive Force Against
Individual Defendants Downey, Knupp, Earl, and Holder; (3)
Public Entity Liability Against Gaston County; (4) Assault
and Battery; and (5) violation of the Americans with
Disabilities Act (“ADA”). (Document No. 2,
filed motions to dismiss on September 28, 2015. See
(Document Nos. 22-25). On August 11, 2016, the Honorable
Frank D. Whitney granted the motions to dismiss in part and
denied in part. (Document No. 32). Judge Whitney determined
that the state law claims for assault and battery against
Gaston County and its employees in their official capacities
must be dismissed due to governmental immunity, and that
Defendants' motions should otherwise be denied, without
prejudice to reassert their arguments at summary judgment.
September 1, 2016, the parties filed their
“Certification And Report Of F.R.C.P. 26(f) Conference
And Discovery Plan” (Document No. 38). In that filing,
the parties indicated that they consent to the jurisdiction
of a U.S. Magistrate Judge in this case. (Document No. 38,
p.2). On September 7, 2016, the parties filed a “Joint
Stipulation Of Consent to Exercise Jurisdiction by a United
States Magistrate Judge” (Document No. 52), and this
matter was reassigned to the undersigned Magistrate Judge.
The Court then issued a “Pretrial Order And Case
Management Plan” (Document No. 58) on September 9,
2016. The “…Case Management Plan” includes
the following deadlines: discovery completion - June 16,
2017; mediation report - July 1, 2017; dispositive motions -
July 14, 2017; and trial- January 2, 2018. (Document No. 58).
The mediation and trial deadlines were later extended.
See (Document Nos. 100 and 131). The parties held a
mediation with attorney Carl Horn on July 27, 2017, that
ended in impasse.
pending before the Court are “Defendant Gaston
County's Motion For Summary Judgment” (Document No.
101) and the “Motion For Summary Judgment Of Defendants
J.E. Knupp, W.P. Downey, T.R. Earl, and A.O. Holder”
(Document No. 103) filed on July 3, 2017, as well as
“Defendants' Motion To Strike Affidavit Of J.C.
Dowell, Jr. [#113-1]” (Document No. 123) filed on July
26, 2017. On July 28, 2017, Plaintiff filed a request for
oral argument on the motions for summary judgment, which was
allowed by the Court. See (Document Nos. 126 and
September 12, 2017, after the pending motions were fully
briefed and one (1) day before the Court's hearing in
this matter, Plaintiff filed her “Stipulation Of
Voluntary Dismissal With Prejudice Of Defendants Officer T.
R. Earl And Officer A. O. Holder, In Their Individual And
Official Capacities” (Document No. 132). The
undersigned held a motions hearing on September 13, 2017, and
heard arguments from counsel for both sides on all pending
on the foregoing, this matter is now ripe for disposition.
STANDARD OF REVIEW
standard of review here is familiar. Summary judgment shall
be granted “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 has the “initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted). Only disputes between the
parties over material facts (determined by reference to the
substantive law) that might affect the outcome of the case
properly preclude the entry of summary judgment. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute about a material fact is “genuine” only
if the evidence is such that “a reasonable jury could
return a verdict for the nonmoving party.” Id.
the movant's initial burden is met, the burden shifts to
the nonmoving party. Webb v. K.R. Drenth Trucking,
Inc., 780 F.Supp.2d 409 (W.D. N.C. 2011). The nonmoving
party opposing summary judgment “may not rest upon the
mere allegations or denials of his pleading, but ... must set
forth specific facts showing there is a genuine issue for
trial.” Anderson, 477 U.S. at 248. In deciding
a motion for summary judgment, a court views the evidence in
the light most favorable to the non-moving party, that is,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255. At summary
judgment, it is inappropriate for a court to weigh evidence
or make credibility determinations. Id.
Gaston County's Motion for Summary Judgment
County (“Defendant”) contends it is entitled to
summary judgment on the claims in Counts I and III brought
pursuant to 42 U.S.C. § 1983, and in Count IV brought
pursuant to the Americans with Disability Act (42 U.S.C.
§ 12132). (Document No. 102, pp.1-2).
Count I - Excessive Force / Injunctive Relief
Defendant Gaston County argues that summary judgment is
appropriate because: “(1) Plaintiff does not state what
injunctive relief is sought . . .; and (2) Gaston County
cannot be held liable under § 1983 under a theory of
respondeat superior.” (Document No. 102, p.6).
Defendant notes that while Count I states that it is a
“Petition for Injunctive Relief, ” nowhere in
Count I or the “Prayer for Relief” does Plaintiff
identify what specific activities or actions it seeks to
enjoin. Id. See also (Document No. 2, pp.5-7,
11-12). Defendant argues that a complaint must contain
“a demand for the relief sought, ” and that there
is no injunctive relief that can be granted. (Document No.
102, pp.6-7) (citing Fed.R.Civ.P. 8(a)(3)).
extent Count I alleges actions taken by employees of Gaston
County, Defendant argues that there is no respondeat
superior liability under § 1983. (Document No. 102,
p.7) (citing Monell v. Dep't of Soc. Servs., 436
U.S. 658, 691 (1978). Monell provides
the language of § 1983, read against the background of
the same legislative history, compels the conclusion that
Congress did not intend municipalities to be held liable
unless action pursuant to official municipal policy of some
nature caused a constitutional tort. In particular, we
conclude that a municipality cannot be held liable
solely because it employs a tortfeasor-or, in other
words, a municipality cannot be held liable under § 1983
on a respondeat superior theory.
Monell, 436 U.S at 691.
Memorandum Of Law In Opposition…” (Document No.
116) declines to address Defendant's first arguments.
Instead, Plaintiff asserts that municipal liability can be
imposed based on either “a deficient training policy or
condoned custom or usage theories.” (Document No. 116,
p.2) (citing Spell v. McDaniel, 824 F.2d 1380, 1391
(4th Cir. 1987). As Defendant notes, Plaintiff has separately
asserted an alleged a failure to train in Count III, and
thus, Counts I and III are redundant, or Plaintiff is making
a respondeat superior claim in Count I. (Document
No. 102, p.6).
“…Reply…, ” Defendant concludes
that Plaintiff's failure to respond to Defendant's
arguments indicates that Plaintiff has abandoned Count I of
the Complaint. (Document No. 125). Moreover, Defendant
re-asserted its argument that Count I was abandoned during
oral arguments, and the undersigned does not recall any
meaningful rebuttal from Plaintiff's counsel that Count I
has not been abandoned.
undersigned finds Defendant's arguments persuasive and
will grant summary judgment as to Count I. To the extent
Count I was intended to assert claims of deficient training,
customs, or policies, the Court will consider those issues
Count III - Public Entity Liability
Gaston County contends that it is entitled to summary
judgment on Count III because: (1) there was no underlying
violation, therefore, there can be no §1983 liability as
to training; and (2) Gaston County adequately trains its
officers on use of force. (Document No. 102, p.8).
notes that municipal liability can only ensue when an injury
is caused by the execution of a policy or custom when that
policy or custom is the result of “policymaker fault of
at least the degree of deliberate indifference to or reckless
disregard for the constitutional rights of persons within
police force jurisdiction.” (Document No. 102, p.8)
(quoting Spell v. McDaniel, 824 F.2d at 1390).
Defendant further notes that:
the Fourth Circuit identified four possible sources of
“official policy or custom” giving rise to
municipal liability: (1) “written ordinances and
regulations;” (2) “affirmative decisions of
individual policymaking officials;” (3) omissions by
policymaking officials “that manifest deliberate
indifference to the rights of the citizens;” or (4) a
practice “so persistent and ...