ROSEMARY SIMS, Personal Representative for the Estate of Jamel Orlando Radcliff v. Greenville County

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROSEMARY SIMS, Personal
Representative for the Estate of
Jamel Orlando Radcliff,
Plaintiff-Appellant,
v.
GREENVILLE COUNTY,
Defendant-Appellee,
and
PERRY EICHOR; GERALD SEALS;
ALFRED H. ZATOR, III, Lieutenant;
DONALD HAMPTON, Lieutenant; DANA
A. LEWIS; ROBERT J. FELTON;
GREENVILLE COUNTY COUNCIL; PAUL
B. WICKENSIMER; SCOTT CASE; C.
No. 99-1732
WADE CLEVELAND; RICK BLACKWELL;
BOB COOK; LOTTIE GIBSON; ALLEN
BUNK JOHNSON; MARK KINGSBURY;
STEPHEN C. SELBY; DANA SULLIVAN;
ZANTHENE NORRIS; DOZIER BROOKS;
GREENVILLE COUNTY DETENTION
CENTER; DONALD L. JEFFERS;
KIMBERLY CRENSHAW; ERIC CADE;
LANE BARKER; JOHN HUBRAK; PHILLIP
E. WRIGHT; DAVID GARRETT; DONALD
GARRETT; DONALD KENNEY; JOHNNY
MCCOMBS, JR.; EMSA; W.C.
HOFFMAN,
Defendants.
UNITED STATES OF AMERICA,
Movant.

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Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-97-2810-6-20)
Argued: March 1, 2000
Decided: April 14, 2000
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Fletcher N. Smith, Jr., LAW OFFICE OF FLETCHER N.
SMITH, JR., Greenville, South Carolina, for Appellant. Boyd Benja-
min Nicholson, Jr., HAYNSWORTH, MARION, MCKAY & GUE-
RARD, Greenville, South Carolina, for Appellee. ON BRIEF: Brent
O.E. Clinkscale, Riche T. McKnight, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, Greenville, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Rosemary Sims, the personal representative of the estate of Jamel
Orlando Radcliff, sued Greenville County in the United States District
Court for the District of South Carolina after Radcliff, a pretrial
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detainee at the Greenville County Detention Center (GCDC) in
Greenville, South Carolina, died following an altercation with deten-
tion officers.1 Sims claimed that the County was liable, under 42
U.S.C.A. § 1983 (West Supp. 1999), for the alleged use of excessive
force against Radcliff because, according to her, it maintained a pol-
icy of deliberately failing to train its officers in the appropriate limita-
tions on the use of force during multiple-officer"takedowns"2 of
detainees. She also claimed that Greenville County was liable under
the South Carolina Tort Claims Act (SCTCA) because, according to
her, it had been grossly negligent in failing to train its detention offi-
cers in the appropriate limitations on the use of force during multiple-
officer takedowns.3 The district court granted summary judgment to
Greenville County, and Sims now raises this appeal. In regard to
Sims's § 1983 claims, we, like the district court, find that Sims failed
to present evidence that would create a genuine issue of material fact
as to whether the County maintained an unconstitutional policy con-
cerning the use of force in multiple-officer takedown situations. We
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1 Sims also asserted various claims, under both 42 U.S.C.A. § 1983
(West Supp. 1999) and state law, against the detention officers involved
in the altercation and Greenville County officials Gerald Seals, Perry
Eichor, and Frank Loftis. Sims does not appeal the district court's grant
of summary judgment to these County officials on the claims asserted
against them. Sims voluntarily dismissed some of her claims against the
detention officers, and, after some of her claims against those officers
survived summary judgment, ultimately entered into a settlement with
the officers who were not dismissed from the action.
2 As the term is used by the parties, a multiple-officer takedown occurs
when a group of officers utilizes force to take an inmate to the ground
and then applies restraints to him.
3 In addition, Sims argued below, independent of her "failure to train"
claim under 42 U.S.C.A. § 1983 (West Supp. 1999), that Greenville
County maintained a custom of allowing detention officers to use exces-
sive force in restraining inmates. Because she only cursorily raises that
issue here and fails to develop her arguments on that issue, we address
it summarily in footnote 8. Furthermore, although Sims also argued
below that Radcliff's death was caused at least in part by Greenville
County's maintenance of both a policy and custom of showing deliberate
indifference to the serious medical needs of inmates, she does not appeal
the district court's grant of summary judgment to the County on that
issue.
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also find that Sims failed to present evidence that would create a gen-
uine issue of material fact as to whether the County was grossly negli-
gent in its training of officers and therefore liable under the SCTCA.
Thus, we affirm the district court's grant of summary judgment to
Greenville County.
I.
Because this case is at the summary judgment stage, we recite the
facts surrounding Mr. Radcliff's death in the light most favorable to
Sims, the non-moving party.4 See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). On August 21, 1997, Jamel Radcliff was
arrested on a bench warrant for a charge of simple possession of mari-
juana and taken to the GCDC. After Radcliff's girlfriend went to the
magistrate's office and paid the appropriate fine, the magistrate faxed
a release form to the GCDC, notifying the officers there that Radcliff
was to be released. The officers at the GCDC, however, discovered
that Radcliff had another outstanding bench warrant for failure to pay
a fine on a 1993 charge of unlawful possession of a gun.
Radcliff therefore was kept at the GCDC and, after dressing in a
prison jumpsuit, waited in the intake and release area of the facility
to be assigned housing. Detention officers then attempted to move
Radcliff and the other inmates into holding cells in order to feed
them. An altercation began when Officer Robert Felton refused to
allow Radcliff the use of the telephone.
Four other officers became involved in the altercation, and, after a
brief struggle, took Radcliff to the floor. More officers joined in the
struggle to subdue Radcliff once he was on the floor. According to
testimony provided by Radcliff's brother, Cory Radcliff, who was
also a pre-trial detainee in the GCDC that day, the officers placed
their knees on Radcliff's neck and back. At least one officer had a
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4 Sims's complaint and brief are filled with many disputed factual alle-
gations that are not relevant to her claims against the County. We focus
only on those facts, and the inferences to which Sims is entitled there-
from, that are relevant to her claims against the County.
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foot on Radcliff's back, and another officer kept Radcliff in a choke
hold. The officers hog-tied5 Radcliff and left him in a holding cell.
Eventually, the nursing staff of GCDC, as well as the Greenville
County Emergency Medical Service, provided medical attention to
Radcliff. (J.A. at 312.) Despite their efforts, Radcliff died of asphyxi-
ation due to pressure that was placed either on his back or around his
neck during the struggle with the officers. (J.A. at 312). Sims then
brought the instant action. After the district court granted summary
judgment to Greenville County, she filed a timely notice of appeal.
II.
We review a district court's decision to grant summary judgment
de novo. See Altizer v. Deeds, 191 F.3d 540, 547 (4th Cir. 1999).
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). "Rule 56(c) mandates the entry of sum-
mary judgment . . . against a party who fails to make a showing suffi-
cient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A.
Sims first argues that the district court erred in granting Greenville
County summary judgment as to her claim under 42 U.S.C.A. § 1983
(West Supp. 1999) because, she contends, Greenville County main-
tained a policy of deliberately failing to train its officers in the appro-
priate limitations on the use of force during multiple-officer
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5 As the district court explained in its order granting summary judg-
ment to Greenville County, hog-tying refers to the practice of handcuff-
ing an inmate behind the back, placing leg irons on him, and drawing the
inmate's hands and feet within a few inches of each other by use of a
chain between the handcuffs and leg irons. See also Price v. County of
San Diego, 990 F. Supp. 1230, 1235 (S.D. Cal. 1998) (describing the
hog-tying process).
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takedowns of prisoners. She then attempts to link this alleged policy
to her allegation that Radcliff was deprived of his constitutional right
to be free from excessive force when he died as a result of pressure
applied on his back or around his neck. Assuming that the facts as
alleged show that Radcliff suffered such a deprivation, we start with
the well-settled proposition that a municipality is liable under § 1983
only if it causes a deprivation of constitutional rights through an offi-
cial policy or custom. See Monell v. Department of Social Services of
New York, 436 U.S. 658, 690-91 (1978). Although the failure to
implement necessary training practices can constitute an official pol-
icy for purposes of a § 1983 suit, "the inadequacy of [law enforce-
ment officers'] training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate indifference to
the rights of persons with whom the [officers] come into contact."
City of Canton v. Harris, 489 U.S. 378, 388 (1989). In other words,
"the need for more or different training [must be] so obvious, and the
inadequacy so likely to result in the violation of constitutional rights,
that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need." Id. at 390. As the Supreme Court
has recently admonished, "`deliberate indifference' is a stringent stan-
dard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action." Board of County
Comm'rs v. Brown, 520 U.S. 397, 410 (1997).
"Moreover, for liability to attach in this circumstance the identified
deficiency in a city's training program must be closely related to the
ultimate injury." Harris, 489 U.S. at 391. A plaintiff must demon-
strate that the alleged injury "[w]ould . . . have been avoided had the
employee been trained under a program that was not deficient in the
identified respect." Id. As we have stated, "muncipal liability will
attach only for those policies or customs having a specific deficiency
or deficiencies . . . such as to make the specific violation almost
bound to happen, sooner or later, rather than merely likely to happen
in the long run." Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)
(internal quotation marks omitted). A court must enforce these "rigor-
ous standards of culpability and causation" so that it does not disobey
Monell's holding that a municipality cannot be held liable for the
actions of its employees under a theory of respondeat superior. See id.
(internal quotation marks omitted). Sims has failed to present evi-
dence that Greenville County displayed deliberate indifference to the
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constitutional right of inmates to be free from excessive force by
ignoring a need to better train its officers to handle multiple-officer
takedown situations. It is undisputed that Greenville County had a
use-of-force policy requiring its detention officers to use the mini-
mum amount of force necessary when dealing with a violent or poten-
tially violent situation. It is further undisputed that GCDC officers are
trained in that policy and taught techniques for properly taking an
inmate to the floor, using the least amount of force necessary, and
avoiding placing a knee on the inmate's back or neck so as to prevent
asphyxiation. Sims contends that the County should have specifically
trained detention officers at the GCDC to deal with multiple-officer
takedowns. We view this contention as merely an assertion that the
County should have made its officers engage in group exercises,
involving different numbers of officers confronting a single inmate,
when the County trained the officers how to take an inmate to the
floor and to avoid placing a knee on the back of an inmate's neck
while applying full restraints. According to Sims, the County's failure
to address this specific "deficiency" in the program constituted delib-
erate indifference to the constitutional right of Radcliff and other
inmates to be free from excessive force.
Sims simply cannot support this assertion. She can point to no prior
instance where an inmate died from compression asphyxiation due to
pressure being applied to the back or neck during a multiple-officer
takedown.6 Sims can point to only one incident prior to Radcliff's
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6 Before the district court, Sims contended that compression asphyxia-
tion (caused by pressure to the back or neck during the multiple-officer
takedown of Radcliff) or positional asphyxiation was the cause of death.
Theoretically, positional asphyxiation can occur as a result of an inmate
being hog-tied after he has engaged in a violent struggle that causes
blood oxygen levels to decrease; the hog-tying prevents oxygen levels
from rising because it impairs the process of inhaling and exhaling. See
Price v. County of San Diego, 990 F. Supp. 1230, 1237 (S.D. Cal. 1998).
As at least one federal court has recently noted, however, there is little
or no scientific evidence that hog-tying causes positional asphyxiation.
See id. at 1238 (noting that the scientist who first claimed that hog-tying
causes positional asphyxiation and whose work others in the field relied
upon heavily now says that hog-tying is physiologically neutral in the
face of a new study that refutes his claims; concluding that "[l]ike a
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death where an inmate was injured during the course of a multiple-
officer takedown. In that instance, on February 10, 1997, detention
officers applied restraints to an inmate who was kicking at his cell
door. While the officers applied restraints, one officer placed a knee
on the inmate's head; photos taken of the inmate after the incident
showed blood flowing from the inmate's ear.7 This one incident,
standing alone, does not demonstrate that Greenville County was
deliberately indifferent to the constitutional right of inmates to be free
from excessive force by inadequately training its officers to handle
multiple-officer takedowns. Indeed, the GCDC's internal investiga-
tion of the incident on February 10 belies any assertion of deliberate
indifference on the part of Greenville County in regard to its training
programs and the injuries that any alleged deficiencies in that pro-
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house of cards, the evidence for positional asphyxia has fallen com-
pletely"). On appeal, Sims does not contest the district court's conclusion
that the medical evidence did not support the assertion that positional
asphyxiation was the cause of death; she only mentions compression
asphyxiation as the cause of death in her brief. Thus, she does not argue,
as she did below, that Greenville County was deliberately indifferent to
an obvious risk of injury to inmates in that it failed to train its officers
on the potential dangers of positional asphyxiation presented by hog-
tying.
7 This incident is discussed in a report prepared by a private consultant
named Steve Martin who assisted the United States Justice Department
in its investigation of conditions at the GCDC following the Radcliff
incident. The Martin report offers high praise for the GCDC in some
respects, but criticizes its detention officers for sometimes using exces-
sive force in the restraint of inmates. The report, however, lists only one
incident involving injury resulting from a multiple-officer takedown
prior to Radcliff's death: the February 10, 1997, incident described
above. Sims also points to a letter to Greenville County from Bill Lann
Lee, Acting Assistant Attorney General in the Civil Rights Division of
the Justice Department, in which Lee mentions the incident of February
10. Sims complains that the district court erred in concluding that the
Martin report and the Lee letter were untrustworthy and therefore inad-
missible hearsay because they were prepared with litigation in mind
against Greenville County under the Civil Rights of Institutionalized Per-
sons Act. We note, however, that the district court, despite its evidentiary
ruling, expressly considered the contents of both documents in deciding
to grant summary judgment to Greenville County.
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gram might cause. This investigation's report stated that placement of
the knee on the inmate's head was not an approved technique. This
one incident, rather than alerting Greenville County to an alleged
inadequacy in its training program that failed to aid detention officers
in confronting a recurring situation and was therefore likely to result
in a violation of the constitutional right to be free from excessive
force, simply indicated that an officer had not obeyed a training direc-
tive that specifically addressed the situation with which he was con-
fronted. Greenville County specifically trained its detention officers
how to take an inmate to the floor while using the least amount of
force necessary and to avoid placing a knee on the inmate's neck or
back while applying restraints so as to avoid causing asphyxiation.
Because it was not obvious that Greenville County's"failure" to sup-
plement its training by conducting group exercises might cause the
use of excessive force against an inmate, Greenville County was not
deliberately indifferent to Radcliff's constitutional rights.
In any event, Sims has failed to present any evidence that the injury
to Radcliff could have been avoided had the alleged deficiency in the
training program been corrected. As noted above, the training pro-
gram under which the officers involved in the Radcliff incident oper-
ated specifically instructed them on the need to use minimal force and
to avoid placing a knee on an inmate's neck or back. See Harris, 489
U.S. at 391 ("[P]lainly, adequately trained officers occasionally make
mistakes; the fact that they do says little about the training program
or the basis for holding the city liable."). We simply cannot, applying
the "rigorous standards of culpability and causation" that we must in
this situation, say that the alleged deficiency in the training program
of failing to conduct group exercises "ma[de] the specific violation
almost bound to happen, sooner or later, rather than merely likely to
happen in the long run." Carter, 164 F.3d at 218 (4th Cir. 1999)
(internal quotation marks omitted). Thus, we agree with the district
court that Sims has failed to show the existence of an unconstitutional
policy that caused Radcliff to be subjected to excessive force.8
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8 In her brief, Sims appears to make the claim, independent of her "fail-
ure to train" claim, that Greenville County had a custom of allowing its
officers to use excessive force on inmates in restraining them. Although
Sims raised this claim below, she fails to develop her argument on this
9

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B.
Sims also claims that the district court erred in granting summary
judgment to Greenville County on her state law claim, brought pursu-
ant to the South Carolina Tort Claims Act, that the County trained its
detention officers in a grossly negligent fashion. The district court
concluded that she failed to present evidence of gross negligence.
Although the SCTCA is a limited waiver of governmental immunity,
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issue here, stating only that the same facts and arguments regarding her
"failure to train" claim apply to her custom-of-excessive-force claim as
well. Having rejected her arguments in the first context, we necessarily
reject them in the second. After all, we will not find a municipal custom
if all the plaintiff can assert is a "meager history of isolated incidents
[that does not] approach the widespread and permanent practice neces-
sary to establish municipal custom." Carter v. Morris, 164 F.3d 215, 220
(4th Cir. 1999) (internal quotation marks omitted). The February 10 inci-
dent, the single incident before Radcliff's death to which Sims can point
in which an inmate was injured by what was arguably the use of exces-
sive force during a multiple-officer takedown, is simply not a sufficient
history of a widespread and permanent practice that could establish a
municipal custom.
Sims also argues that Greenville County, in an admission filed with the
district court, conceded that it had a policy or custom of allowing its
detention officers to use excessive force on detainees. Our review of the
admission indicates otherwise: the County, consistent with its position
that Sims's portrayal of the Radcliff incident is inaccurate and that its
detention officers did not use excessive force against Radcliff, simply
stated that the actions of the officers during the Radcliff incident "were
in compliance with the customs, policies, practices, and procedures of
Greenville County." (J.A. at 618 (emphasis added).) This statement,
taken in proper context, cannot be fairly read as a concession that those
customs, policies, practices, and procedures tolerated the use of exces-
sive force.
Finally, Sims raises, for the first time on appeal, the argument that
Greenville County's use-of-force policy was unconstitutional both on its
face and as applied. Because Sims failed to raise this argument below,
we will not consider it. See Muth v. United States, 1 F.3d 246, 250 (4th
Cir. 1993) (holding that "issues raised for the first time on appeal gener-
ally will not be considered").
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it contains a list of exceptions to the grant of that immunity. The rele-
vant exception reads as follows:
The governmental entity is not liable for a loss resulting
from:
. . .
(25) responsibility or duty including but not limited to
supervision, protection, control, confinement, or custody of
any student, patient, prisoner, inmate, or client of any gov-
ernmental entity, except where the responsibility or duty is
exercised in a grossly negligent manner.
S.C. Code Ann. § 15-78-60(25) (Law. Co-op. Supp. 1998). South
Carolina courts have defined gross negligence as"the intentional,
conscious failure to do something which one ought to do or the doing
of something one ought not to do." Etheredge v. Richland Sch. Dist.
I, 499 S.E.2d 238, 242 (S.C. Ct. App. 1998) (citing a long list of cases
employing that definition). We believe that the district court did not
err in holding that the County met its burden of showing that this
exception applies to this case9 by providing uncontradicted evidence
that it provided a training program for its detention officers that actu-
ally exceeded the training requirements imposed by the state. More-
over, as our discussion in Part II.A of this opinion makes clear, Sims
failed to present any evidence that Greenville County intentionally
and consciously provided an allegedly inadequate training program to
its officers that was bound to result in the use of excessive force dur-
ing multiple-officer takedowns.10
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9 "The burden of establishing a limitation upon liablility or an excep-
tion to the waiver of immunity is upon the governmental entity asserting
it as an affirmative defense." Etheredge v. Richland Sch. Dist. I, 499
S.E.2d 238, 242 (S.C. Ct. App. 1998).
10 Sims also asserts, for the first time on appeal, that, regardless of its
training program, Greenville County is vicariously liable under the
SCTCA for the actions of its detention officers. Because Sims did not
make this allegation in her complaint or present such an argument below,
we will not consider it. See Muth v. United States, 1 F.3d 246, 250 (4th
Cir. 1993) (holding that "issues raised for the first time on appeal gener-
ally will not be considered.").
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III.
For the foregoing reasons, the district court's order granting sum-
mary judgment to Greenville County on Sims's claims under 42
U.S.C.A. § 1983 (West Supp. 1999) and the SCTCA is affirmed.
AFFIRMED
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