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Epperson v. Smith

United States District Court, W.D. Virginia, Danville Division

May 31, 2018

TAMARA EPPERSON, et al. Plaintiffs,
DAN SMITH, et al., Defendants.



         This matter is before the Court on several pending motions: a Motion for Summary Judgment from Defendants Brian Hubbard, Danny Martin, and Terry Mikels; a Motion for Summary Judgment from Defendants Rob Coleman and Dan Smith; a Motion to Dismiss Plaintiffs' Amended Complaint from Defendant Stephanie Brinegar-Vipperman; and a Motion for Summary Judgment filed by Plaintiffs James, Tamara, Kyle, and Mason Epperson. Following thorough briefing by the parties, I heard oral arguments on all of these motions on March 6, 2018. For the reasons stated herein, some of Plaintiffs' claims must proceed to trial.


         This case is unique because the parties largely agree on all the relevant facts. Plaintiffs James and Tamara Epperson and their children, Plaintiffs Kyle and Mason Epperson, resided at 4037 Ararat Highway in Patrick County, Virginia (“the property”) for over 20 years. Regrettably, due to the economic downturn, James's failing health, and bad circumstances, at some point in 2015 they became unable to pay the credit line on their home. As a result, their lender initiated foreclosure proceedings against them. Plaintiffs do not fault anyone for this turn of events, nor do they dispute the validity and propriety of the foreclosure.

         Nevertheless, on October 19, 2015, Plaintiffs' home was sold to Calvin and Vickie Payne (“the Paynes”).[2] After the sale, the Paynes signed a contract with the trustee to purchase the property. Importantly, the contract of sale stated: “Vendor [the substitute trustee] will vacate the property on or before NOVEMBER 19, 2015, ” and “Possession of property to be given to Vendee on or before NOVEMBER 19, 2015.” [ECF No. 113-7.] Plaintiffs do not dispute the validity of the sale.

         Following the sale, Vickie Payne called James Epperson. Vickie left a voicemail informing Plaintiffs that she had purchased the home at the foreclosure sale and “she had to get the keys to it.” (James Epperson Dep. 10:15-19.) When James Epperson returned her call, he told her that if she gave his family thirty days to move, he would not force her to get a court order to have the family removed from the property. (Id. 10:20-23.) Although Vickie Payne did not expressly consent to James Epperson's proposal, she did agree to come by the property on the afternoon of October 20 to pick up the keys. The two agreed to speak again around lunchtime on October 20 to confirm a time for Vickie Payne to come by. (Id. 11:-12:6.)

         Despite her agreement with James Epperson and the language in the contract of sale, Vickie Payne called Defendant Sheriff Dan Smith on October 19, after speaking with James Epperson. She told him that she had bought the property on the courthouse steps, had made a down payment, and that she was worried someone might steal or damage a generator on the property. (Dan Smith Dep. 14:17-15:22.) She asked him whether she could get into the house. Smith did not know the answer, so he told Vickie Payne he would consult with the Commonwealth's Attorney, Defendant Stephanie Brinegar-Vipperman (“Vipperman”). Smith did no independent investigation to confirm anything Vickie Payne told him. According to Smith, he assumed the home was abandoned. (Id. 17:3-5.)

         When he called Vipperman, he relayed to Vipperman what Vickie Payne had told him, and Vipperman advised him that the house belonged to the Paynes and the Paynes could go in. (Id. 24:6-10.) Vipperman recalls assuming that the “bank had done the writ” of possession on the property. (Stephanie Brinegar-Vipperman Dep. 9:17-19.) She understood Sheriff Smith to be asking whether deputies could go to the home with the Paynes “just to be peacemaker . . . .” (Id. 9:22.) To the best of her recollection, Smith asked whether the deputies could go to the property with the Paynes “and just make sure everything is peaceful and safe.” (Id. 18:7.)

         Smith called Vickie Payne back and informed her that Vipperman had advised that the house was hers and she could go in. (Smith Dep. 24:6-16.) At that point, Vickie Payne asked if a deputy could go with her to access the property. (Id. 24:24-25:10.) Smith said he would arrange for a deputy to go with her to the property that evening; Vickie Payne said she wanted to wait “until the next day to do it, daylight hours, so forth.” (Id. 26:11-12 (emphasis added.)

         Sheriff Smith called Deputy Dustin Foley and directed him to assist Vickie Payne. (Dustin Foley Dep. 11:15-12:21). According to Foley, Smith told him “the commonwealth attorney said for [him] to go up there and pretty much gain access to the house.” (Id. 12:17-20.) Foley understood that he was to accompany Vickie Payne to the property, go in, and “clear the house, see if anyone was there.” (Id. 14:7-8.)

         That night, despite Vickie Payne's expressed reservations to Smith, the Paynes went with Foley to the property around 10:30. Although they knocked on the doors and windows, no one answered. After walking around the property, they decided to return again the next day. Although James Epperson heard people attempting to gain entry into the home, he did not interact with any of them.

         Around 6:00 a.m. on the morning of October 20, Foley called Defendant Lieutenant Rob Coleman. (Rob Coleman Dep. 11:21-23.) Coleman testified that Foley told him he had been to the property before “and attempted to make contact with somebody there inside the residence.” (Id. 12:5-7.) After speaking with Foley, Coleman drove to the Sheriff's Office and spoke with Sheriff Smith by phone. Sheriff Smith “told [Coleman] that he had spoken with [the] Commonwealth Attorney, Stephanie Vipperman, and the Paynes had every right to be there on the property and that we could go with them to make sure that there was nobody else on the property.” (Id. 15:9-13.) At no point did Coleman inquire as to whether any legal process had been undertaken to remove the Eppersons from the property, and Coleman and Smith did not discuss the extent of assistance that Coleman was permitted to provide to the Paynes. (Id. 17:16- 19.) According to transcripts of the radio conversations that morning, Coleman knew the former owners were still living at the property. [See, e.g., ECF No. 121-13.] Coleman also knew that a legal process existed to evict a resident from a home. (See Coleman Dep. 10:6-11.) In going to the home, Coleman's intention was to make entry into the home and ensure no one was inside. (Id. 17:20-18:9.)

         At around 8:30 that morning, Coleman and Deputy Lewis Carroll met the Paynes at the property. They banged on the front and back doors, but got no response from anyone inside. (Id. 23:1-18.) Coleman attempted to breach a walk-through door in the garage, but was unable to make entry. (Id. 25:16-26:3.) Coleman and Carroll had to leave the property because they were due in court at 9:30, so Coleman called Defendant Investigator Brian Hubbard and instructed him to bring breaching tools to the property. (Id. 25:1-17.)

         After he left the property, Coleman met with Hubbard and Defendant Investigator Terry Mikels at the Ararat Volunteer Fire Department. According to Coleman:

I explained to them in person what we had. I told them that I had knocked on the doors and the windows and I was not able to get anybody to respond inside. I told them that they [the Paynes] were trying to reach a locksmith, but one wasn't there when I left. You know, they [presumably the Paynes] did want to make entry. I had already spoken with the Sheriff and the Sheriff had consulted with the Commonwealth Attorney, and based on what they told me, you know, we had permission to go in. I had sent them to make entry into the residence just to make sure that there was nobody else inside and then Carroll and myself left.

(Id. 27:23-28:10.) Coleman also spoke with Defendant Investigator Danny Martin on the radio. (Id. 28:11-16.) Over the radio, Coleman told Martin that the Sheriff had spoken with the Commonwealth Attorney “and they[3] have every right to go in.” [ECF No. 121-13.]

         Hubbard was aware that a “writ of possession or unlawful detainer” action was typically necessary to remove someone from a house in an eviction proceeding. (Brian Hubbard Dep. 8:11-14.) Hubbard recalls that, at the fire station, he asked Coleman directly whether “papers” had been issued:

I do recall asking Lieutenant Coleman if we had papers on the house and he said that it was taken care of. He had talked to the Sheriff, they had talked to the Commonwealth Attorney, and we were good to go in. . . . According to Lieutenant Coleman, we were supposed to go in.

(Id. 9:3-7; 18-21.) Based on that conversation, Hubbard believed they had authority to enter the home. (Id. 9:15-17.)

         Hubbard and Mikels left the fire department. While en route to the property, Hubbard radioed Martin and asked him to meet them at the property as well. When Hubbard and Mikels arrived at the property, the Paynes were already there. While awaiting Martin, Hubbard and Mikels walked around the house, knocking on the doors. (Id. 17:19-21.) Hubbard and Vickie Payne even tried calling Plaintiffs' phone, [4] but no one answered. (Id. 17:22-18:21.)

         A locksmith eventually arrived and was able to gain access to the garage. (Id. 22:4-9.) Hubbard, Martin, and Mikels (“the deputies”[5]) entered the garage with their weapons drawn. Inside the garage, and up several steps, was a glass door that led into the home. While the deputies were checking the vehicles in the garage to see if anyone was hidden inside, Hubbard noticed the barrel of a shotgun through the glass door. Hubbard yelled, “Sheriff's Office. Drop the gun.” It was later determined that the man holding the shotgun was James Epperson. According to Hubbard:

While we were yelling at him, it was almost like talking to a wall. It was like someone didn't understand. He had a glare or a glaze over his face. We call it the thousand yard stare. They are just, you know, looking right through me when I'm talking to them.

(Id. 29:12-17.) At that point, Hubbard was in fear for his life. (Id. 30:1-4.) He pointed his weapon, which had a flashlight attached to it, at James Epperson. The flashlight was bright enough to interfere with someone's ability to see. (Id. 30:18-23.)

         Eventually James Epperson comprehended what the deputies were saying and lowered his gun. At the deputies' direction, James unlocked the door into the garage and let the deputies into the home. (Id. 32:11-13.) From that point on, James Epperson was completely cooperative. Once he was removed from the house, James was placed in handcuffs. (Id. 32:24-33:3.)

         After he was placed in handcuffs, James Epperson was searched. One of the deputies- but not Martin-took James Epperson's keys from his pocket, “tosse[d] them to Vickie Payne and [said], ‘I guess these are yours.'” (James Epperson Dep. 38:19-39:9.) James Epperson's key ring included car keys and keys to other personal property.

         Hubbard then asked James whether anyone else was inside the house; James responded that his son, Kyle, was upstairs in bed because he was home, sick, from school. (Hubbard Dep. 35:5- 16.) The deputies put on bullet proof vests and reentered the home to locate Kyle Epperson. (Id. 35:20-22.)

         The deputies went through the home calling out for Kyle, and Kyle responded from upstairs. At some point (either in the home or later outside), Hubbard relayed to Kyle that the deputies had encountered his father with a shotgun and they simply wanted to get Kyle out of the house safely. (Id. 38:3-6.) Kyle complied with the deputies' instructions and came downstairs with his hands visible. The deputies asked him to lie on the ground; he complied. Mikels put him in handcuffs, and Kyle was escorted outside.

         After they cleared the house, Kyle wanted to retrieve some personal items from the home. Hubbard-and possibly others-told Kyle that he needed the Paynes' permission to retrieve anything from the house. (Hubbard Dep. 41:18-21; 42:11-43:6.) The deputies assisted Kyle in carrying “a large computer and some stuff out to his car . . . .” (Id. 41:12-13; see also Kyle Epperson Dep. 13:7-24, 14:9-20.)

         James Epperson was then transported to the Sheriff's office. The deputies spoke about charges, “about either getting several warrants on one of [them] getting the warrants all in one complaint.” (Hubbard Dep. 45:7-11.) Ultimately, Hubbard got three warrants on one complaint; three counts of brandishing a firearm, one for each of the deputies. (Id. 45:12-17.)

         James Epperson appeared in court on January 12, 2016, when the Commonwealth Attorney nolle prossed all charges against him. On her copy of the arrest warrant, she wrote:

Bank hadn't completed foreclosure so ∆ [James Epperson] had legal right to be there [and] police didn't

[ECF No. 121-24 (emphasis in original).]

         Following this ordeal, James Epperson and his family brought suit in this Court on October 19, 2016, exactly one year after the foreclosure sale. (See Compl. [ECF No. 1].) Following preliminary rulings and the filing of an Amended Complaint [ECF No. 89], several motions were filed: Hubbard, Martin, and Mikels filed a Motion for Summary Judgment [ECF No. 100]; Smith and Coleman filed a Motion for Summary Judgment [ECF No. 110]; Vipperman filed a Motion to Dismiss [ECF No. 118]; and Plaintiffs filed a Motion for Summary Judgment [ECF No. 130]. Following thorough briefing on the motions, I heard oral arguments on March 6, 2018. After reviewing of the evidence (where appropriate), relevant law, and arguments of counsel, the matter is ripe for disposition.


         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In determining facial plausibility, the court must accept all factual allegations in the complaint as true. Id. The Complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Therefore, the Complaint must “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” a pleading that merely offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

         Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); George & Co. LLC v. Imagination Entertainment Ltd., 575 F.3d 383, 392 (4th Cir. 2009). A genuine dispute of material fact exists “[w]here the record taken as a whole could…lead a rational trier of fact to find for the nonmoving party.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (internal quotation marks and citing reference omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute cannot be created where there is only a scintilla of evidence favoring the nonmovant; rather, the Court must look to the quantum of proof applicable to the claim to determine whether a genuine dispute exists. Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson, 477 U.S. at 249-50, 254. A fact is material where it might affect the outcome of the case in light of the controlling law. Anderson, 477 U.S. at 248. On a motion for summary judgment, the facts are taken in the light most favorable to the non-moving party insofar as there is a genuine dispute about those facts. Scott, 550 U.S. at 380. At this stage, however, the Court's role is not to weigh the evidence, but simply to determine whether a genuine dispute exists making it appropriate for the case to proceed to trial. Anderson, 477 U.S. at 249. It has been noted that “summary judgment is particularly appropriate . . . [w]here the unresolved issues are primarily legal rather than factual” in nature. Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).


         a. Stephanie Brinegar-Vipperman's Motion to Dismiss[6]

         In considering Vipperman's Motion to Dismiss, I am confined to a review only of the allegations in Plaintiffs' Amended Complaint. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Upon review of those allegations, Plaintiffs have ...

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