Bishop v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
CANDACE BISHOP, PERSONAL
REPRESENTATIVE FOR THE ESTATE OF
CHARLES EDWARD BISHOP, JR.; AND
CHARLES EDWARD BISHOP JR., ESTATE
PLAmTIFF;
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
3:20-CV-03002-RAL
ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Charles Edward Bishop, Jr. tragically died in March of 2017, days after suffering a
traumatic head injury. Around 11:00 p.m., on March 3,2017, Charles was passed out in the middle
J
of the road and concerned bystanders called for emergency assistance. A police officer was
dispatched to the scene and subsequently escorted Charles to his home, where he could safely sleep
off his intoxicated state. Charles had no apparent physical injuries and was able to communicate
with the officer. Charles's wife. Plaintiff Candace Bishop arrived home shortly after Charles was
dropped off, and after some effort to get Charles inside, she decided to let her husband sleep on
the porch so he could get up and come inside when he was ready. The next morning, Candace
grew concerned that Charles had not yet awakened, so she called an ambulance. Charles was
transported to the hospital, where he later died. Tragically, neither the police officer nor Charles's
family observed anything overly concerning about Charles's condition that night to indicate he
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might need immediate medical attention. It is unclear how, where, or when Charles sustained his
head injury, but there has been no evidence produced in this case to suggest that Charles's death
was the result of anything more than an accident.
Candace, as the personal representative of her husband's estate, sued the Government of
the United States alleging that the police officer who escorted Charles home that night unlawfully
exercised jurisdiction over him and negligently caused his death. Doc. 1 at ^ 10. The Government
moved for summary judgment. Doc. 22, which this Court now grants.
I. Facts
Consistent with Local Rule 56.1, the Government filed a statement of undisputed material
facts and corresponding documentary evidence with its summary judgment motion. See D.S.D.
Civ. LR 56.1.A, C; Docs. 22-27. In a previous order by this Court, Plaintiff was instructed that
the Local Rules apply equally to represented parties and pro se litigants such as herself. Doc. 30.
Plaintiff was further informed that she should contaet the Clerk of Court if she needed to receive
the Local Rules or obtain additional copies ofthe summary judgment papers. Doc. 30. In another
order, this Court specifically instructed Plaintiff on how she was required to respond to the
Government's summary judgment motion:
Local Rule 56.LB pertaining to motions for summary judgment requires a party
opposing a summary judgment motion to respond to the movant's statement of
material facts with separately numbered responses and appropriate citations to the
record and to identify any material facts where there is a genuine issue to be tried.
Doc. 32 at 1 (citing D.S.D. Civ. LR 56.LB). Plaintiff, however, did not file an opposing statement
of material facts as required by Rule 56.LB.
Rule 56.1 further provides that "[a]ll material facts set forth in the movant's statement of
material facts will be deemed to be admitted unless controverted by the opposing party's response
to the moving party's statement of material facts." D.S.D. Civ. LR 56.1.D(emphasis added). This
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Court understands the difficulties pro se litigants face, and although it was not required-to do so,
this Court instructed Plaintiff how to respond to the Government's motion. Beck v. Skon,253
F.3d 330,333(8th Cir. 2001)(holding that a District Court is not required to advise pro se litigants
how to properly respond to motions for summary judgment). As this Court has routinely held,"[a]
plaintiff proceeding pro se, of course, still has an obligation to follow the Federal Rules of Civil
Procedure and this Court's Local Rules." Alphinv. GoosmannL. Firm,No.4:18-CV-04070-RAL,
2019 WL 5191734, at *2 (D.S.D. Oct. 15, 2019)(citing Ackra Direct Mkgt. Corp. v. Fingerhut
Corp.. 86 F.3d 852, 856(8th Cir. 1996)). This Court will liberally construe Plaintiffs letter dated
December 6, 2022, which was Plaintiffs sole response to the summary judgment motion but will
otherwise assume the Government's statement of material facts is undisputed and deemed
admitted. See generallv Erickson v. Pardus. 551 U.S. 89, 94(2007)(noting that documents filed
by pro se litigants are to be liberally construed); Interstate Power Co. v. Kansas City Power &
Light Co.. 992 F.2d 804, 807 (8th Cir. 1993)("Even if a motion for summary judgment on a
particular claim stands unopposed, the district court must still determine that the moving party is
entitled to judgment as a matter of law on that claim").
On March 3, 2017, at around 11:16 p.m., a caller contacted police dispatch in Fort
Thompson, South Dakota, about a man who was lying in the middle of the road. Doc. 24 at ^ 1.
The caller and another individual had pulled their cars over and activated their hazard lights so no
one would run the man over. Id at T| 2. Minutes later, law enforcement Officer Derek Parish
arrived on the scene. Id atf 3. Parish was employed by the Bureau ofIndian Affairs, Crow Creek
Agency, which has responsibility for law enforcement in Fort Thompson.' Id at 3-4; Doc. 25-
3 at 2.
Fort Thompson, South Dakota, is situated within the Crow Creek Indian Reservation.
3
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Officer Parish identified the man on the ground as Charles Bishop, whom he knew from
previous interaetions. Doc. 24 at ^ 5. Parish asked Charles whether he was alright, and Charles
indicated that he was. Doc. 25-3 at 6, although according to Parish, Charles was intoxieated and
having a hard time getting to his feet. Doe. 24 at 7-8. Charles asked Parish to help him up, and
Parish did so. Id at 6, 9. Once he was on his feet. Parish assisted Charles into the back of the
police vehicle and told hirn he would give him a ride to his residence. Doc. 26-1. Parish did not
notice any blood on Charles, and Charles did not complain that he was experiencing any pain.
Doc. 24 at Tllf 10-11.
Roughly ten minutes after arriving on the scene, Officer Parish left with Charles to take
him to his home, which was located about one-half mile from where Charles was found in the
road. Id at 14-15. When they arrived at the residence. Parish left Charles in the car, walked
to the front door, and attempted to make contact with Charles's wife, Candace Bishop, whom
Charles had told Parish should be home at the time. Id at 12-16. No one answered the door,
so Parish returned to his police vehicle and escorted Charles to the front porch of the residence.
Id at TITI 17-18. Charles sat upright on the porch, assured Parish that he would be okay, and
thanked Parish multiple times for his help. Id at 19-23. Charles assured Parish that his wife
was in the house. Id at ^ 21. Parish then returned to his patrol duties and left Charles seated on
the front porch of the residence. Id at 28. Nothing about the weather that night gave Parish
cause for concern about Charles's safety—the temperature outside was comfortable and Charles
was wearing multiple layers of clothing. Id at 24-26.
Candace, who it turns out was not actually home when Officer Parish dropped Charles off,
returned to the residence around 1:00 a.m., perhaps a little more than an hour after Parish had left
Charles on his porch. Id at^ 29. When Candace got home,she noticed her husband laying outside
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on the front porch. Id at ^ 30. After unsuccessfully trying to wake up Charles and bring him
inside with the help of her niece, Candace left the residence to go pick up her children from her
sister's place. Id. at 31-33. Candace attributed Charles's passed out state to his drinking and
let him sleep. Doc. 25-4 at 3-6. When she returned, Candace went inside to sleep and assumed
Charles would eventually get up and come inside on his own. Doc. 24 at 34-35. Candace, by
her own admission, did not notice any blood on Charles that night. Doc. 25-4 at 13.
Candace woke up several hours later, got her kids ready, and left to take them to the bus
stop. Doc. 24 at 36-37. She noticed that Charles was still outside asleep, but that he had
somehow moved from the porch to the ground, which was a distance of about seven to ten inches.
Id at 39; Doc. 25-4 at 8-9. When Candace returned, Charles was still laying on the ground.
Doc. 24 at ^ 40. Around 9:48 a.m., believing that her husband may have alcohol poisoning,
Candace called for an ambulance. Id at ^ 41. Candace did not notice any trauma to Charles's
body the night before or that morning. Id at ^ 45. When the ambulance arrived, Candace for the
first time noticed blood coming from her husband's nose. Id at 43. Charles was transported to
the hospital, where he later passed away on March 6, 2017. Id at 47-M-8.
An autopsy performed on Charles Bishop after his death found a blunt force injury to his
head, acute alcohol intoxication, atherosclerotic cardiovascular disease, and hypertensive heart
disease. Id at 49. The autopsy results list Charles's cause of death as a traumatic brain injury
due to blunt force injury of the head and found that his injury was consistent with a fall. Id at
50-51;Doc. 27-1 at 1-2.
In her letter to this Court, Plaintiff expresses her understandable devastation over the death
of her husband Charles. Doc. 33. Plaintiff suspects there was foul play in her husband's death,
but she has not produced any evidence to support those assertions. Doc. 33.
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II. Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "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). Rule 56(a) places the hurden on
the moving party to establish the absence of a genuine issue of material fact and entitlement to
judgment as a matter oflaw. Id.; see also Celotex Corp. v. Catrett. 477 U.S. 317, 322(1986). The
nonmoving party must establish that a material fact is genuinely disputed by either "citing to
particular parts of materials in the record" or "showing that the materials cited do not establish the
absence ... of a genuine dispute[.]" Fed. R. Civ. P. 56(c)(1); see also Gacek v. Owens & Minor
Distrih.. Inc.. 666 F.3d 1142, 1145 (8th Cir. 2012). A party opposing a properly supported motion
for summary judgment"may not rest upon mere allegations or denials" in her pleading but "must
set forth specific facts showing that there is a genuine issue for trial." Gacek. 666 F.3d at 1145-
46 (citing Anderson v. Libertv Lobbv. Inc.. 477 U.S. 242, 256(1986)); see also Moslev v. City of
Northwoods. 415 F.3d 908, 910(8th Cir. 2005)(stating that a nonmovant may not merely rely on
allegations or denials). In ruling on a motion for summary judgment,the facts and inferences fairly
drawn from those facts are "viewed in the light most favorable to the party opposing the motion."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587-88 (1986)(quoting United
States V. Diebold. Inc.. 369 U.S. 654,655 (1962)(per curiam)).
III. Discussion
Plaintiff sued the Government under the Federal Tort Claims Act(FTCA) alleging that
Officer Parish negligently caused the death of Charles Bishop. Doc. 1. Under the FTCA, the
United States is "liable to the same extent as a private party for certain torts of federal employees
acting within the scope oftheir employment." United States v. Orleans. 425 U.S. 807, 813(1976).
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The FTCA waives sovereign immunity for "personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law ofthe place where the act or omission occurred."
28 U.S.C. § 1346(b)(1).
The Government does not contest that Parish was a federal employee and acting within the
scope of his employment. Where, as here, the events underlying the FTCA claim occurs on Indian
land, the "law of the place" is considered to be the state within which the land is located—in this
case. South Dakota. LaFramboise v. Leavitt. 439 F.3d 792, 796 (8th Cir. 2006); see also Molzof
V. United States. 502 U.S. 301, 305 (1992)("[T]he extent,of the United States' liability under the
FTCA is generally determined by reference to state law"). The appropriate-analogue for Plaintiffs
FTCA claim is a "South Dakota state law . . . negligence claim, which requires proof of duty,
breach of that duty, proximate and factual causation, and actual injury." Sorace v. United States.
788 F.3d 758,763(8th Cir. 2015)(citing Hewitt v. Felderman. 841 N.W.2d 258,263(S.D. 2013)).
The Government appears to concede for the sake of argument that state law may have
imposed a duty on Parish to exercise reasonable care as soon as he began to assist Charles. Doc.
23 at 7-8 (citing State Auto Ins. Cos. v. B.N.C.. 702 N.W.2d 379, 387-89(S.D. 2005)). Even so,
"[t]he existence, scope, and range of a duty ... depend upon the foreseeability ofthe risk of harm."
Zerfas v. AMCO Ins. Co.. 873 N.W.2d 65, 70 (S.D. 2015). In other words,"[n]o one is required
to guard against or take measures to avert that which a reasonable person under the circumstances
would not anticipate as likely to happen." Wildehoer v. S.D. Junior Chamber of Com.. Inc.. 561
N.W.2d 666, 670 (S.D. 1997)(quoting Poelstra v. Basin Elec. Power Co-op.. 545 N.W.2d 823,
826-27(S.D. 1996)).
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Under South Dakota law, in a negligence action,"summary judgment is proper if no duty
exists as a matter of law." Zerfas, 873 N.W.2d at 69. Even viewing the facts in a light most
favorable to Candace as the nonmoving party, this Court concludes that the Government is entitled
to summary judgment on the negligence claims. There is no evidence in the record to suggest that
Parish or any reasonable person could have foreseen Charles might need medical attention when
he was found passed out in the roadway. After all, those who found him called the police rather
than for an ambulance. Indeed, like Parish, Charles's family when they initially found him after
Parish left him on the porch did not suspect anything might be wrong with Charles beyond his
apparent intoxication. In his interactions with Officer Parish, Charles was inebriated, but he was
alert and able to communicate that he would be alright if Parish left him at home to be with his
wife. South Dakota law did not impose a duty on Officer Parish to protect Charles from harm that
even Charles's family did not foresee until they finally called an ambulance hours later suspecting
alcohol poisoning.
As to the allegations of foul play against Officer Parish, there is simply no evidence in the
record to suggest that Charles's injury was the result of anything other than an accident. "It is well
settled that when challenging a summary judgment, the nonmoving party must substantiate their
allegations with sufficient probative evidence that would permit a finding in their favor on more
than mere speculation, conjecture, or fantasy." Hanson v. Big Stone Theranies. Inc.. 916 N.W.2d
151, 159(S.D. 2018)(cleaned up and citations ornitted). There are no genuine issues of material
fact on the unsubstantiated excessive force claims and as such the Govemrrient is entitled to
judgment as a matter of law.
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IV. Conclusion
For the reasons stated above, it is
ORDERED that the Defendant's Motion for Summary Judgment, Doc. 22, is granted.
DATED this day of January, 2023.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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