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Poole v. Gaston County

United States District Court, W.D. North Carolina, Charlotte Division

October 6, 2017

GENGER POOLE, as Administrator of the Estate of William Dean Poole, Plaintiff,
v.
GASTON COUNTY; W. P. DOWNEY; and J. E. KNUPP, Defendants.

          ORDER

          David C. Keesler, United States Magistrate Judge.

         THIS 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.

         I. BACKGROUND

         A. Facts

         The 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”).

         Plaintiff 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, p.3).

         “Following 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).[1] 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).

         At the 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.

         (Document No. 102, p.2).

         Gaston 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. 101-13, pp.4-5).

         “Upon 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).

         Defendants 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.

         Downey 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).

         Officers 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).

         B. Procedure

         Plaintiff 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, pp.5-11).

         Defendants 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. Id.

         On 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.

         Now 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 128).[2]

         On 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 motions.

         Based on the foregoing, this matter is now ripe for disposition.

         II. STANDARD OF REVIEW

         The 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.

         Once 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.

         III. DISCUSSION

         A. Gaston County's Motion for Summary Judgment

         Gaston 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).

         1. Count I - Excessive Force / Injunctive Relief

         First, 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)).

         To the 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.

         “Plaintiff's 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).

         In its “…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.

         The 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 below.

         2. Count III - Public Entity Liability

         Next, 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).

         Defendant 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 ...

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