United States District Court, W.D. Virginia, Danville Division
TAMARA EPPERSON, et al. Plaintiffs,
DAN SMITH, et al., Defendants.
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
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.
STATEMENT OF FACTS AND PROCEDURAL
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
on October 19, 2015, Plaintiffs' home was sold to Calvin
and Vickie Payne (“the Paynes”). 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.
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.)
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.)
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.)
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
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.”
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.
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.)
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.
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
every right to go in.” [ECF No. 121-13.]
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.
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,
but no one answered. (Id. 17:22-18:21.)
locksmith eventually arrived and was able to gain access to
the garage. (Id. 22:4-9.) Hubbard, Martin, and
Mikels (“the deputies”) 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
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.)
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.
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.
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.)
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.
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.
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.
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
[ECF No. 121-24 (emphasis in original).]
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
STANDARD OF REVIEW
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.
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.
Stephanie Brinegar-Vipperman's Motion to
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 ...