SUMMONS IN THE COURT OF COMMON PLEAS STATE OF SOUTH CAROLINA ) ) ) CIVIL ACTION 2017-CP-42- COUNTY OF SPARTANBURG

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1 STATE OF SOUTH CAROLINA COUNTY OF SPARTANBURG DELTON JASPER and BAKARI SELLERS, As Co-Personal Representatives of the Estate of DELVIN TYRELL SIMMONS, Deceased, v. Plaintiff, SPARTANBURG METHODIST COLLEGE; SPARTANBURG METHODIST COLLEGE CAMPUS SAFETY DEPARTMENT/SMC POLICE DEPARTMENT; and ANDREW TOMLINSON, INDIVIDUALLY AND/OR IN HIS OFFICIAL CAPACITY, Defendants. TO THE DEFENDANTS ABOVE-NAMED: IN THE COURT OF COMMON PLEAS CIVIL ACTION 2017-CP-42- SUMMONS YOU ARE HEREBY SUMMONED and required to answer the Complaint in this action, of which a copy is herewith served upon you, and to serve a copy of your Answer to said Complaint in the subscribed to Scott C. Evans, EVANS MOORE, LLC, 121 SCREVEN STREET, GEORGETOWN, SOUTH CAROLINA, within THIRTY (30 DAYS after the service hereof, exclusive of the date of such service; and if you fail to answer the Complaint within the time aforesaid, judgment by default will be rendered against you for the relief demanded in the Complaint. s/scott C. Evans Scott C. Evans, SC Bar James B. Moore III, SC Bar Evans Moore, LLC 121 Screven Street Georgetown, SC Office: ( Fax: ( scott@evansmoorelaw.com

2 October 31, 2017 Georgetown, South Carolina Joel T. Hamilton, SC Bar Jason Burgess, SC Bar Schiller & Hamilton 197 S Herlong Avenue Rock Hill, SC Office: ( JHamilton@schillerhamilton.com JBurgess@schillerhamilton.com Attorneys for the Plaintiff

3 STATE OF SOUTH CAROLINA COUNTY OF SPARTANBURG DELTON JASPER and BAKARI SELLERS, As Co-Personal Representatives of the Estate of DELVIN TYRELL SIMMONS, Deceased, v. Plaintiffs, SPARTANBURG METHODIST COLLEGE; SPARTANBURG METHODIST COLLEGE CAMPUS SAFETY DEPARTMENT/SMC POLICE DEPARTMENT; and ANDREW TOMLINSON, INDIVIDUALLY AND/OR IN HIS OFFICIAL CAPACITY, Defendants. IN THE COURT OF COMMON PLEAS CIVIL ACTION 2017-CP-42- COMPLAINT The Plaintiffs, Delton Jasper and Bakari Sellers, bring this Complaint as Co-Personal Representatives of the Estate of Delvin Tyrell Simmons, against Spartanburg Methodist College, Spartanburg Methodist College Campus Safety Department/SMC Police Department, and Andrew Tomlinson, and would respectfully show unto this Honorable Court: JURISDICTION AND VENUE 1. The Plaintiffs, Delton Jasper and Bakari Sellers (hereinafter Plaintiff s are the Co- Personal Representatives of the Estate of Delvin Tyrell Simmons (hereinafter Plaintiff Decedent. 2. Defendant Spartanburg Methodist College (hereinafter SMC is a private college located in Spartanburg, South Carolina. SMC is organized and exists under the laws of the State of South Carolina, and operates a college located at 1000 Powell Mill Road, Spartanburg, South Carolina. 1 of 10

4 At all times hereinafter mentioned in this lawsuit, Defendant SMC acted and carried on its business by and through its agents, servants, and/or employees. Additionally, these agents, servants, and/or employees (to include and not be limited to the college campus safety department and personnel mentioned below were operating within the scope of their officially assigned and/or compensated duties. 3. Defendant Spartanburg Methodist College Campus Safety Department/SMC Police Department (hereinafter referred to as SMC Campus Safety is a law enforcement agency licensed by the State of South Carolina and staffed/operated/funded by Defendant SMC. SMC Campus Safety is recognized and authorized as a South Carolina law enforcement agency by the State of South Carolina and the United States Federal Bureau of Investigations. SMC Campus Safety Officers have the ability to conduct investigations, obtain warrants, and make arrests both on and off of the SMC campus. 4. Defendant Andrew Tomlinson (hereinafter Defendant Tomlinson is an agent, servant, and/or employee of SMC Campus Safety. At all times relevant to this litigation, Andrew Tomlinson was acting individually and/or under color of state law in his official capacity as a law enforcement officer with SMC Campus Safety. As a licensed law enforcement officer, Defendant Tomlinson was well-aware of Plaintiff Decedent s constitutional right to be free from excess force. 5. Venue is proper in this Court because the alleged acts and omissions giving rise to this cause of action occurred in Spartanburg County, South Carolina. FACTS 6. On November 9, 2015, Plaintiff Decedent was twenty (20 years of age and was a secondyear student at Limestone College in Gaffney, South Carolina, where he majored in early childhood education. 2 of 10

5 7. The Plaintiffs are informed and believe that on the evening of November 9, 2015, Plaintiff Decedent Delvin Simmons and a friend attended a women s basketball game held at Spartanburg Methodist College. 8. The Plaintiffs are informed and believe Defendant Tomlinson was on duty with SMC Campus Safety on the evening of November 9, During the course of the evening on November 9, 2015, SMC Campus Safety was alerted to the possibility of a vehicle break-in within the Sparrow Hall parking lot. It was later determined that two males were suspected of entering unlocked vehicles on the campus. 10. The Plaintiffs are informed and believe that SMC Campus Safety officer Justin Yarborough was notified, via text message from a student, to the potential that a vehicle had been entered in the parking lot of the Sparrow Hall dorm. Officer Yarborough, who was watching the men s basketball game with Defendant Andrew Tomlinson in the school gymnasium, signaled Defendant Tomlinson and the two of them left the gymnasium and went to the Sparrow Hall parking lot. 11. Upon arriving to the Sparrow Hall parking lot, Officers Tomlinson and Yarborough approached the Plaintiff and his friend in the parking lot. After speaking with the officers briefly, the Plaintiff and his friend left the area. Shortly thereafter, Officer Justin Yarborough located and detained the Plaintiff s friend. At the same time, Plaintiff Decedent Delvin Simmons returned to his vehicle and attempted to leave the campus. Plaintiff Decedent reversed from his parking space at a normal rate of speed, and placed his vehicle into drive. As the Plaintiff attempted to lightly depress the accelerator of his vehicle to move forward, Defendant Tomlinson, whose firearm was already drawn, leapt into the pathway of the vehicle and opened fire into the front windshield of Mr. Simmons vehicle four times, striking him twice in the head and killing him. 3 of 10

6 12. Plaintiffs allege the Defendants acted in a grossly negligent manner and used excessive, unjustified, and lethal force while attempting to detain and question a witness/suspect to a misdemeanor offense. 13. As a direct and proximate result of these acts and omissions, Plaintiff Decedent suffered the following injuries and damages: a. A violation of his Constitutional rights under the Fourth, Eighth, and Fourteenth Amendment to the United States Constitution and Article 1 of the South Carolina Constitution to be free from the use of excessive force; b. Loss of his life; and c. Physical pain and suffering and emotional trauma and suffering. 14. The heirs of Plaintiff Decedent further suffered the untimely end of their relationship with their beloved son and the corresponding loss of his services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice, and were forced to incur funeral and burial expenses. 15. The acts and omissions of the Defendants violated the following clearly established and well-settled Federal and State Constitutional rights of Delvin Tyrell Simmons by using excessive force. FOR A FIRST CAUSE OF ACTION Negligence & Gross Negligence - Survival (Against Defendants SMC and SMC Campus Safety 16. The foregoing factual allegations are made a part of this First Cause of Action through incorporation by reference. 4 of 10

7 17. The above incident and Plaintiff Decedent s resulting injuries and death were proximately caused by the negligent, grossly negligent, reckless, willful and wanton acts of the Defendants SMC and SMC Campus Safety, in the following particulars: a. in failing to exercise reasonable or slight care by using deadly force on an individual who was simply attempting to drive out of the campus parking lot; b. in failing to exercise reasonable or slight care by allowing its agent/employee to open fire on a suspect/witness to a misdemeanor who was simply trying to leave the parking lot; c. in failing to exercise reasonable or slight care to adhere to proper law enforcement procedures when approaching a witness/suspect; d. in failing to exercise reasonable or slight care to have in place proper and adequate policies, procedures and protocols for law enforcement officers approaching a witness/suspect or, if such policies, procedures and protocols were in place, in failing to use due care to enforce them; e. in failing to exercise reasonable or slight care to have in place and adequate policies, procedures and protocols for the use of deadly force or, if such policies, procedures and protocols were in place, in failing to use due care to enforce them; f. in failing to properly train and educate their employees to exercise independent judgment and care; g. in such other particulars as may be ascertained through discovery procedures undertaken pursuant to South Carolina Rules of Civil Procedure. 18. As a direct and proximate cause of Defendants acts of omission and commission, the Plaintiff Decedent, Delvin Simmons, was shot twice, causing Plaintiff to sustain serious personal injury and death. As such, Plaintiff is entitled to an award of ACTUAL and CONSEQUENTIAL DAMAGES. 5 of 10

8 19. Defendants conduct as outlined above was reckless, wanton, and willful, as such Plaintiff is further entitled to an award of PUNITIVE DAMAGES. FOR A SECOND CAUSE OF ACTION Negligence & Gross Negligence - Wrongful Death (Against Defendants SMC and SMC Campus Safety 20. The foregoing factual allegations are made a part of the Second Cause of Action through incorporation by reference. 21. The above incident and Plaintiff Decedent s resulting injuries and death were proximately caused by the negligent, grossly negligent, reckless, willful and wanton acts of the Defendants SMC and SMC Campus Safety, in the following particulars: a. in failing to exercise reasonable or slight care by using deadly force on an individual who was simply attempt to drive out of the campus parking lot; b. in failing to exercise reasonable or slight care by allowing its agent/employee to open fire on a suspect/witness to a misdemeanor who was simply trying to leave the parking lot; c. in failing to exercise reasonable or slight care to adhere to proper law enforcement procedures when approaching a witness/suspect; d. in failing to exercise reasonable or slight care to have in place proper and adequate policies, procedures and protocols for law enforcement officers approaching a witness/suspect or, if such policies, procedures and protocols were in place, in failing to use due care to enforce them; e. in failing to exercise reasonable or slight care to have in place and adequate policies, procedures and protocols for the use of deadly force or, if such policies, procedures and protocols were in place, in failing to use due care to enforce them; f. in failing to properly train and educate their employees to exercise independent judgment and care; 6 of 10

9 g. in such other particulars as may be ascertained through discovery procedures undertaken pursuant to South Carolina Rules of Civil Procedure. 22. As a further result and because of the Defendants reckless, willful and grossly negligent conduct which ultimately caused the wrongful death of Delvin Simmons, Plaintiffs are entitled to ACTUAL and CONSEQUENTIAL DAMAGES in an amount to be determined by a jury in accordance with the law and evidence in this case. 23. Defendants conduct as outlined above was reckless, wanton, and willful, as such Plaintiffs are further entitled to an award of PUNITIVE DAMAGES. FOR A THIRD CAUSE OF ACTION Negligent Hiring, Retention, Supervision (Against Defendants SMC and SMC Campus Safety 24. The foregoing factual allegations are made a part of this Third Cause of Action through incorporation by reference herein. 25. Defendants owed statutory and common law duties to Plaintiff Decedent to refrain from negligently hiring, training, supervising and/or retaining employees. 26. Defendants were negligent in hiring and retaining Defendant Tomlinson and Officer Yarborough and knowingly retained these officers despite the fact that these officers prior work history as well as their work while employed with Defendants presented a foreseeable risk that these officers would fail to perform their responsibilities in a reasonable manner that was consistent with generally accepted law enforcement procedure and protocol. 27. Defendants further knew or reasonably should have known that because of their prior work history and tenure as uniformed law enforcement officers that neither Defendant Tomlinson nor officer Yarborough were suitable candidates to serve as police officers and carry lethal force. 28. Defendants failed to perform reasonable training and supervision of its armed police officers in the following areas: 7 of 10

10 a. Use of Force; b. Use of Deadly Force; c. Safe practices for pursuit of potential suspects on the college campus; d. Avoiding dangerous situations with potential suspects while on campus; e. Preventing unsafe conditions for students on the college campus; f. Ensuring student and bystander safety; and, g. Balancing lawful objectives with appropriate use of force. 29. As a further result and because of the Defendants reckless, willful, grossly negligent, and negligent failure to properly hire, retain, and supervise its employees which ultimately caused the death of Delvin Simmons, Plaintiffs are entitled to ACTUAL and CONSEQUENTIAL DAMAGES in an amount to be determined by a jury in accordance with the law and evidence in this case. 30. Defendants conduct as outlined above was reckless, wanton, and willful, as such Plaintiffs are further entitled to an award of PUNITIVE DAMAGES. FOR A FOURTH CAUSE OF ACTION 42 U.S.C Excessive Force (Against Defendant Andrew Tomlinson 31. The foregoing factual allegations are made a part of this Fourth Cause of Action through incorporation by reference herein. 32. During the time period in question, Defendant Tomlinson was acting under the color or pretense of State law, customs, practices, usage as a licensed law enforcement officer, and had certain duties imposed upon him with regard to Plaintiff Decedent. Additionally, during the timeperiod in question, the Defendant was well-aware of the Plaintiff s constitutional right to be free from excessive force. 8 of 10

11 33. The above incident and the Plaintiff Decedent s resulting injuries and death were proximately caused by the intentional, reckless, willful, and wanton acts of the Defendant by using unjustified, lethal force against the Plaintiff Decedent in violation of the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. Such unjustified use of lethal force constitutes excessive force, cruel and unusual punishment, and a violation of the right to due process guaranteed by the Fourth, Eighth, and Fourteenth Amendments of the United States Constitution. 34. The Plaintiff posed no physical threat to any of the Defendants or to the general public at large and Defendant Tomlinson had no reasonable belief that he was in danger of death or severe bodily injury. 35. Defendant s acts and omissions constituted an excessive use of force proximately causing a violation of Plaintiff Decedent s Fourth, Eighth, and Fourteenth Amendment rights. 36. As a direct and proximate result of the Defendant s act of willful, malicious, conscious and deliberate indifference, the Decedent suffered deprivations of his rights secured by the Fourth, Eighth and Fourteenth Amendments to the United States Constitution. WHEREFORE, Plaintiffs respectfully pray for judgment against Defendants for all ACTUAL, CONSEQUENTIAL AND PUNITIVE DAMAGES, in an amount to be determined by a jury at the trial of this action; attorney s fees and costs pursuant to 42 U.S.C and 1988; and for such other and further relief as this Court deems just and proper. Respectfully Submitted, s/scott C. Evans Scott C. Evans, SC Bar James B. Moore III, SC Bar Evans Moore, LLC 121 Screven Street Georgetown, SC of 10

12 October 31, 2017 Georgetown, South Carolina Office: ( Fax: ( Joel T. Hamilton, SC Bar Jason Burgess, SC Bar Schiller & Hamilton 197 S Herlong Avenue Rock Hill, SC Office: ( JHamilton@schillerhamilton.com JBurgess@schillerhamilton.com Attorneys for the Plaintiff 10 of 10