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King v. Marcy

United States District Court, S.D. Georgia, Brunswick Division

September 19, 2019

ROXANNE KING; and STACY GRADY, individually and as next of friend of her three minor children, Plaintiffs,
v.
PARKER MARCY, et. al., Defendants.

          ORDER

          R. STAN BAKER UNITED STATES DISTRICT JUDGE.

         Presently before the Court is Defendants’ Motion for Summary Judgment, (doc. 56), and Plaintiffs’ Motion to Dismiss Eric Butler as a Defendant, (doc. 73). This 42 U.S.C. § 1983 case concerns Defendants’ actions during a search of Plaintiff Roxanne King’s residence. (Doc. 69.)[1]The parties dispute whether Defendant Parker Marcy and fourteen other officers-David Hassler, Hershell Garrett Wright, D.J. Walker, David Haney, Robert Corey Sasser, [2] Ronnie Cooper, Butler, [3] Jeremy Stagner, Timothy Hollingsworth, Cameron Arnold, Richard Leska, Clayton Palmer, Chris Lowther, and Resden Talbert-used excessive force in violation of the Fourth Amendment and Georgia law, and whether Defendants are entitled to qualified and official immunity.[4] (Id.; doc. 56.) Based on the undisputed facts, Plaintiffs have failed to support their 42 U.S.C. § 1983 claim with sufficient evidence to survive summary judgment. Moreover, Defendants are shielded from Plaintiffs’ state law claims by official immunity. Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment, (doc. 56), and DENIES as moot Plaintiffs’ Motion to Dismiss, (doc. 73). The Court DIRECTS the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case.

         BACKGROUND

         I. Procedural History

         On September 18, 2017, Plaintiff Roxanne King filed this cause of action pursuant to 42 U.S.C. § 1983 alleging injury from a December 15, 2015 search effectuated by Defendant Marcy and fourteen other officers who were identified in the Complaint as John Does 1–10 and Jane Does 1–4. (Doc. 1.) Upon motion by King, the Court added Stacy Grady (both individually and on behalf of three children who were in the house at the time of the search) as a Plaintiff.[5] (Docs. 6, 9.) The Court also granted Plaintiffs’ request to substitute the following fourteen individuals in place of the John and Jane Doe Defendants: “David Hassler, Garret Wright, D.J. Walker, David Haney, Corey Sasser, Officer ___ Cooper, Officer ___ Butler, Officer ___ Stagner, Officer ___ Hollingsworth, Officer ___ Arnold, Officer ___ Leska, Officer C. Palmer, Officer C. Lowther, and Investigator Resnick Talbert.” (Docs. 7, 9.) In compliance with the Court’s February 19, 2019 Order, Plaintiffs subsequently filed an Amended Complaint that specified the first names of Defendants Cooper, Stagner, Hollingsworth, Arnold, Leska, Palmer, and Lowther. (Doc. 69.) Defendants filed the at-issue Motion for Summary Judgment on January 7, 2019. (Docs. 56, 56-1.). Plaintiffs filed a Response, (docs. 62), and Defendants filed a Reply, (doc. 65). Finally, Plaintiffs filed a Motion to Dismiss Eric Butler as a Defendant on March 19, 2019. (Doc. 73.)

         II. Factual Background

         The events giving rise to this action took place the evening of December 15, 2015, when several Glynn County police officers conducted a search at 237 Cornwall Street, Plaintiff King’s home. (Doc. 69, p. 2.) Earlier that day, Defendant Marcy, who was investigating an armed robbery, prepared a search warrant and a supporting affidavit for that address because a suspect in the robbery had identified it as his primary residence. (See Doc. 56-2.) Glynn County Magistrate Judge Flay Cabiness signed the warrant at 10:03 p.m., and Marcy arrived at 237 Cornwall Street approximately twenty minutes later. (Doc. 56-4, pp. 17–18.) Marcy gave King a copy of the signed warrant prior to leaving her property. (Id.; doc. 62, p. 8.) While the parties do not dispute what took place leading up to and during the search, the warrant’s authenticity, or the time the warrant was signed, they do dispute what time the search began and the degree to which each Defendant was involved. Accordingly, the Court will discuss the relevant details pertaining to each issue separately.

         A. The Search of 237 Cornwall Street

         The evidence, viewed in the light most favorable to Plaintiffs, shows the following. On December 15, 2015, Defendant Marcy and Defendant Talbert arrested a man named Neal Cohen in connection with a recent armed robbery. (Doc. 56-1, p. 1; doc. 56-5, p. 7.) Cohen, whom Marcy had determined was the primary suspect in the robbery, was apprehended at an apartment complex that was a “two-minute walk away” from King’s house. (Doc. 56-2, pp. 1–2.) After the arrest, two officers interviewed Cohen at the Glynn County Police Department while Marcy listened from his desk. (Doc. 65-1, pp. 1–2.) In the interview-which was captured on video and submitted to the Court-Cohen stated that he lived at “237 Cornwall Street with Roxanne King and Demetrius Hall.” (Id. at 18:21:59.) Marcy then prepared an application for a warrant to search the address. (Doc. 56-2, p. 2.) Eventually, Marcy spoke with Captain Tindale, one of his supervisors, about the warrant’s contents and the known histories of individuals associated with 237 Cornwall Street. (Doc. 56-1, p. 4; doc. 56-4, p. 11; doc. 56-8, p. 10.) Due to a risk that the residence’s occupants would be armed, the pair decided to seek permission to employ the department’s SWAT team. (Id.) Tindale first contacted Defendant Hassler, a Captain in the SWAT division, and either Tindale or Hassler sought approval from Chief Doering, the chief of police at the time. (Doc. 56-8, p. 11.) Chief Doering approved the request. (Id.; doc. 56-4, p. 11.)

         At some point thereafter, Marcy talked to Defendant Lowther, an investigator and member of the SWAT team. (See Doc. 56-6, pp. 6–11.) Before the SWAT team was formally called, Marcy told Lowther that the SWAT team was going to execute the search warrant. (Id. at pp. 7, 11.) Eventually, the SWAT officers were instructed to report to the department’s headquarters. (Id. at pp. 7, 9–10; doc. 56-7, p. 6.) The team then loaded into the SWAT vehicle and one of the supervisors briefed the officers. (Doc. 56-6, p. 12; doc. 56-7, p. 9.) Specifically, the team was told that they were going to “conduct a no-knock search warrant” pursuant to an armed robbery investigation and the officers were to “secure the residence.” (Doc. 56-7, p. 9.) After Marcy communicated that the warrant had been signed, the SWAT vehicle transported the team members to 237 Cornwall Street. (See id., p. 18; doc. 56-6, pp. 12–13.)

         The SWAT team included Stacy Talbert (who is not a named defendant), Joey Butler, and Defendants Lowther, Cooper, Hassler, Stagner, Arnold, Leska, Hollingsworth, and Sasser.[6] (Doc. 56-7, pp. 12, 19; doc. 56-4, p. 21; 56-6, p. 24.) Upon arrival, the officers broke down King’s door, entered the home, and instructed everyone to get on the ground. (Doc. 59-2, p. 61; doc. 56-6, p. 13.) The team located seven people-two adult males, two adult females, and three children-in various areas throughout the home. (Doc. 56-1, pp. 5–6.) Lowther and Cooper walked into a bedroom where an adult male and an adult female in her “late teens, early 20’s” were lying in the bed; the officers placed them in handcuffs and led them outside. (Doc. 56-6, pp. 13–14; doc. 56-7, pp. 12–13.) King was in another bedroom with the oldest child and the other adult male, and the adult male was walking towards the door when the police entered the room. (Doc. 59-2, pp. 68–69.) King remembers that she was on the ground when an officer handcuffed her. (Id.) According to King, the officer then walked her outside with a gun “pointed at [her] back” and eventually placed her in the back of a police car. (Id. at pp. 71–72, 75.) King told the officer that her handcuffs were too tight and that she had recently undergone surgery, but the officer told her to “shut up.” (Id. at p. 73.) Meanwhile, other SWAT members escorted the three children out of the home. An officer named Stacy removed the two youngest children, aged three and seven, from the bathtub and took them outside. (Doc. 56-1, pp. 7–8.) According to Plaintiffs, the children remained naked while they waited on the porch for ten or so minutes before someone wrapped them in a blanket and put them in the police car with King and their older sister. (Doc. 59-2, p 77; doc. 59-1, p. 8.) About thirty minutes later, an officer removed King’s handcuffs and King went inside to get clothes for the children. (Doc. 59-2, p. 78; doc. 62, p. 7.)

         (1) The Audio Recording

         Notably, at some point after officers began to search the home, Marcy had a conversation with King that was captured in an audio recording. (Doc. 56-4, p. 8.). Defendants submitted the recording, and Plaintiffs do not object to its authenticity. (Doc. 67, Ex. A-2.) The Court has reviewed the recording in its entirety and provides a brief description of relevant portions of the audio below.

         Sixteen seconds into the recording, King is heard saying, “I just want to see the search warrant, ” to which Marcy replies, “That’s what I’m going to show you right now.” (Id. at 00:16– 00:22.) King says that she knows about Cohen’s arrest and assures Marcy that Cohen does not live with her. (Id. at 00:24–00:59.) Marcy stops King and apologizes for “being rude” and introduces himself as “Parker, ” and King then says her name is “Roxanne.” (Id. at 01:01–01:06.) King states that Cohen has been living in a vacant house next door and that Marcy should consider searching there. (Id. at 01:30–01:41.) After apologizing to King for the inconvenience, Marcy then explains, “This is the search warrant. It was signed by Judge Cabiness tonight at 10:03, it’s now 11:00.” (Id. at 01:45–02:00, 02:40–02:53.) Marcy can be heard reading through the warrant with King, including the list of items the officers were looking for, and he then asks King if anything “ring[s] a bell.” (Id. at 02:55–06:31.) Next, Marcy tells her that the officers would not need to “pull everything out” and could cease the search quickly if she helped them locate the items listed in the warrant. (Id. at 7:00–08:13.) King says she understands but does not think any of the items are in her house. (Id.) After a brief pause in the conversation, Marcy and King discuss an item that another officer had just found in the “back bedroom.” (Id. at 08:10–09:31.)

         Next, Marcy takes down King’s information as well as the names and ages of the three children. (Id. at 09:33–12:00.) When they finish, Marcy asks King for the contact information for the owner of the neighboring vacant house. (Id. at 12:00–12:06.) Marcy tells King that the officers were “probably going to try and get that [search] started at the same time, while we’re here already . . . especially because if I find the crap in there, I can get out of your house.” (Id. at 12:19–12:31.) About two minutes later, King thanks a female officer, who identifies herself as “Stacy, ” for watching the children. (Id. at 14:30–14:45.) Stacy asks Marcy if he needs anything and Marcy responds, “To find the items on this list so we can go home.” (Id. at 14:45–14:50.) For the next five or so minutes, King and the officers talk about where certain items might be located, Cohen’s residence, and Cohen’s previous interactions with law enforcement. (Id. at 14:50–19:40.) Marcy comments, “I’m glad we brought you in here, otherwise I would have been in here for like an hour and would have come outside all disappointed.” (Id. at 19:49–19:53.) For the remainder of the recording, King can be heard looking for the contact information for the owner of the vacant house and talking with Marcy and the other officers. (Id. at 19:53–23:19.)

         (2) Dispute as to the Timing of the Search

         As noted above, the parties dispute what time the search began. Defendants maintain that the search did not begin until after the warrant was signed and, in support, they point to the audio recording in which Defendant Marcy is heard telling King it is 11:00 as he shows her the search warrant. Defendants aver that this indicates that the search was just getting started at that time. (Doc. 65, pp. 4–5.) Plaintiffs, however, allege that officers entered King’s home before the warrant was signed. (Doc. 62, p. 5.) In support, Plaintiffs point to King’s affidavit-submitted with their Response-which states that she recalls officers arriving between 8:00 p.m. and 8:30 p.m., “less than an hour” after she got home from work. (Doc. 62-2, pp. 1–2.)

         (3) Review of Each Defendant’s Involvement

         Defendants contend that Plaintiffs have not established “what role any of the Defendants played with respect to handcuffing King, handcuffing the oldest child, or removing any of them from the house.” (Doc. 56-1, p. 9.) Because all fifteen Defendants move for summary judgment, it is imperative to establish the extent of each one’s involvement based on the record before the Court.[7]

         a. Defendants Wright and Butler

         The record does not establish Defendant Wright’s presence at the scene, and Plaintiffs concede that Defendant Butler was not involved in any capacity. (Doc. 62, p. 3.)

         b. Defendant Marcy

         Defendant Marcy was the lead investigator on the armed robbery case and he prepared the search warrant for 237 Cornwall Street. (Doc. 56-1, p. 3.) After Judge Cabiness signed the warrant at 10:03 p.m., Marcy drove to King’s house. (Doc. 56-4, p. 18.) Additionally, Marcy believes that, before he went to King’s house, he called a SWAT commander to relay that the warrant had been signed. (Id.) Marcy testified that he arrived shortly after the SWAT team entered the house and that he walked inside, at which point Hassler told him to wait outside. (Doc. 56-1, p. 9.) Within thirty minutes of his arrival, Marcy spoke with King and gave her a copy of the signed search warrant. (Doc. 65-1.) Eventually, King and Marcy went inside the home together. (See Doc. 67, Ex. A-2.) Marcy remembers seeing two children in blankets in front of the house. (Doc. 56-4, pp. 25, 33.)

         c. Defendants Walker and Haney

         Defendants Walker and Haney were investigators. The only evidence that specifically pertains to their involvement at the search of the King home is testimony from Defendant Marcy that ...


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