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Cox v. Duke Energy Inc.

United States Court of Appeals, Fourth Circuit

November 20, 2017

WILLIAM B. COX, Personal Representative for the Estate of Robin G. Fleming, Plaintiff - Appellant, and ROBIN G. FLEMING, Plaintiff,

          Argued: September 12, 2017

         Appeal from the United States District Court for the District of South Carolina, at Florence. Bruce H. Hendricks, District Judge. (4:13-cv-01456-BHH)


          John Adams Hodge, JOHN ADAMS HODGE & ASSOCIATES, LLC, Columbia, South Carolina, for Appellant.

          Thomas Rush Gottshall, HAYNSWORTH SINKLER BOYD, P.A., Columbia, South Carolina; Samuel F. Arthur, III, AIKEN, BRIDGES, NUNN, ELLIOTT & TYLER, PA, Florence, South Carolina, for Appellees.

         ON BRIEF:

          Sarah P. Spruill, Joshua D. Spencer, Samuel R.B. Shealy, HAYNSWORTH SINKLER BOYD, P.A., Columbia, South Carolina, for Appellees Duke Energy Inc. and William Gideon.

          Before NIEMEYER, DUNCAN, and FLOYD, Circuit Judges.

         Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Duncan and Judge Floyd joined.

          NIEMEYER, Circuit Judge.

         When Robin Fleming flew his glider plane over the H.B. Robinson Nuclear Plant - operated by Duke Energy Progress, Inc., in Darlington County, South Carolina - and then began circling repeatedly nearby, plant security personnel found the glider's presence suspicious and notified the Darlington County Sheriff's Office, the nearby airport, the Federal Aviation Administration ("FAA"), and Shaw Air Force Base. Responding Sheriff's deputies ordered Fleming to land his glider at the airport and, once he landed, took him into custody, arresting him for misdemeanor breach of the peace. They held him in a cell overnight, advising him that Homeland Security and the FBI were interested in questioning him the next morning. He was released the next day on bond.

         Several weeks later, while at court for trial on the breach-of-peace charge, Fleming, with the advice of his attorney, agreed to waive any civil claims that he might have against the Darlington County Sheriff's Office in exchange for dismissal of the charge. Nonetheless, Fleming later commenced this action against Duke Energy, Duke Energy's vice president in charge of the Robinson Nuclear Plant, the Darlington County Sheriff's Office, the Sheriff, and two deputies. Invoking 42 U.S.C. § 1983, he alleged that the defendants had violated his civil rights under color of state law, denying him the "freedom of movement, freedom from arrest and detention, and freedom to conduct a lawful activity, " in violation of the Fourth, Fifth, and Fourteenth Amendments. He also alleged state law claims of false imprisonment, false arrest, negligence, and civil conspiracy.

         The district court granted the defendants' motions for summary judgment, holding (1) that Fleming had validly waived his right to sue the Darlington County Sheriff's Office, the Sheriff, and the deputies; (2) that Duke Energy and its vice president were private actors not operating "under color of" state law as required for liability under § 1983; and (3) that Fleming's remaining state law claims were preempted by federal law's exclusive regulation of nuclear safety.

         For the reasons that follow, we affirm.


         Fleming, a retired aeronautical engineer and experienced glider pilot, set off in his glider from an airfield in Jefferson, South Carolina, on the afternoon of July 26, 2012, from where he was "aerotowed" to an altitude of 2, 000 feet and then released. During his flight, Fleming flew over the Robinson Nuclear Plant at an altitude of approximately 1, 100 feet and then flew a short distance eastward toward Lake Robinson. Once over the lake but still near the plant, he began to circle repeatedly so as to gain altitude - a mode of flight known as "thermalling."

         Security personnel employed by Duke Energy noticed Fleming's glider and grew suspicious, especially of the aircraft's continued circling in the vicinity of the plant. After they put the plant on "heightened awareness, " they contacted the Darlington County Sheriff's Office, the Hartsville Regional Airport, the FAA, and Shaw Air Force Base. The Hartsville Airport was unaware of a glider operating in the area, and neither the FAA nor Shaw could locate the aircraft on radar.

         The Sheriff's Office dispatched deputies to the airport, who, upon arriving, directed the airport's assistant manager to establish radio contact with the pilot and instruct him to land at the airport. The assistant manager responded that only the FAA had authority to issue such an order. She also spoke by telephone with an FAA employee, who indicated that because the pilot had apparently done nothing wrong, the aircraft could not be ordered to land. The deputies nonetheless told the assistant manager again to order the glider to land, and she accordingly advised the pilot via radio that "the Sheriff wanted [him] to land as soon as possible."

         Although Fleming knew that he had not entered any restricted airspace, he landed his plane as directed and was taken into custody by the Sheriff's deputies, who arrested him on a misdemeanor charge for breach of the peace, advising him that the FBI and Homeland Security wanted to interview him the next day. The deputies handcuffed Fleming, placed him in the back of a Sheriff's Office vehicle, and read him his Miranda rights. By that time, Duke Energy security personnel had arrived, and they asked Fleming whether he knew that he was flying over a nuclear power plant. Fleming said that he did. Fleming was then taken to a holding cell, where he was kept overnight.

         The next morning, Fleming met with his attorney, Gerald Malloy, whom an acquaintance had retained on his behalf. After Malloy departed, Fleming was interviewed by an FBI agent and an investigator from Homeland Security. At the bail hearing that afternoon, ...

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