Opinion
C. A. 0:17-1141-SAL-PJG
01-05-2023
Ekoko K. Avoki; Francisco K. Avoki, Plaintiffs, v. City of Chester, SC; Police of Chester SC; PTL Covington; Doe I-XXX, Defendants.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
The self-represented plaintiffs, Ekoko K. Avoki and Francisco K. Avoki, filed this civil rights action in forma pauperis under 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the remaining issues raised in the parties' cross motions for summary judgment. (ECF Nos. 304 & 327.) The court previously denied the Avokis' motion and granted the defendants' motion as to the Avokis' Fourteenth Amendment claim, but stayed the Avokis' Fourth Amendment and retaliation claims pending the ultimate termination of Ekoko's traffic citation. (ECF No. 403.) The plaintiffs recently filed a motion to lift the stay, providing proof that Ekoko Avoki's charge was dismissed. (ECF No. 472.) The motion is granted. Consequently, the plaintiffs' Fourth Amendment and retaliation claims are ripe for review. Having reviewed the record presented and the applicable law, the court concludes that the defendants' motion for summary judgment should be granted and the plaintiffs' motion denied.
See generally Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (“If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.”) (citing Heck v. Humphrey, 512 U.S. 477, 487-88 n.8 (1994)).
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiffs, to the extent they find support in the record. The Avokis, a married couple, filed this lawsuit on May 2, 2017, claiming the City of Chester violated their constitutional rights by selling their Wylie Street property at a tax auction. More than three months later, Ekoko Avoki was charged by the City of Chester for operating a motor vehicle without insurance-the incident that gives rise to the claims addressed herein.
The court previously granted summary judgment to the defendants as to the Avokis' Fourteenth Amendment claim concerning a dispute about the sale of the Avokis' house by the City of Chester at public auction. (ECF No. 403.)
On the morning of August 25, 2017, while on patrol, Defendant Tyler Covington of the City of Chester Police Department observed a blue or green Honda Odyssey traveling down Wylie Street. Covington ran the vehicle tags through the South Carolina Department of Motor Vehicles (“SCDMV”) online database and determined that the Honda Odyssey was being operated without insurance. About an hour later, around 7:53 a.m., Covington observed the same Honda Odyssey traveling on Wylie Street and initiated a traffic stop based on his knowledge that the car was not insured. Ekoko was the driver of the Honda Odyssey, and Covington stopped her in front of the Avokis' house on Wylie Street. Covington requested Ekoko produce a driver's license, registration, and proof of insurance. Ekoko did not have her license on her and could not locate any proof of insurance, but she insisted that the car was insured. Someone from the Avokis' house soon thereafter retrieved Ekoko's license from the house.
Francisco Avoki appeared from the Avokis' house and asked Covington why he had stopped Ekoko. Covington stated that the SCDMV database indicated that the Honda Odyssey was not insured. Francisco asserted that the Honda Odyssey was registered to a company called DRIV4LESS and was insured through Progressive. Covington called Progressive to verify that the vehicle was insured, but Progressive did not insure DRIV4LESS.
The SCDMV database listed DRIV4LESS as the owner of the Honda Odyssey. (Defs.' Mot. Summ. J. Ex. B, Covington Aff., ECF No. 304-8.)
By then, multiple people had gathered in the Avokis' yard and Covington called for backup. Covington informed Ekoko that he would be towing the Honda Odyssey and asked her to step out of the vehicle and put her hands behind her back. Ekoko initially resisted Covington's attempt to detain her by pulling away and turning to face Covington. Family members of the Avokis also circled around Covington and yelled that Covington could not take Ekoko to jail. Covington stepped away from the Avokis' vehicle and drew his taser, ordering everyone to get away from the vehicle. Other City of Chester police officers had arrived by that point and established control of the scene. Covington handcuffed Ekoko and placed her in the back of his patrol car. Covington issued a citation to Ekoko for “operating uninsured” and the Honda Odyssey was searched and towed. (Defs.' Mot. Summ. J. Ex. A, Covington Aff., ECF No. 304-7 at 3.) Covington told Ekoko that if she was able to later provide proof of insurance he would help her with the citation. While writing an incident report, Covington called Progressive again to verify that the vehicle was not insured, this time trying different spellings of “DRIV4LESS,” but Progressive did not insure a company by that name.
The Avokis filed a Second Amended Complaint in October 2017 that included claims regarding Ekoko's detention and traffic citation. By order dated November 20, 2017, and relevant to this incident, the court construed the Second Amended Complaint as asserting claims pursuant to 42 U.S.C. § 1983 for false arrest and illegal search and seizure in violation of the Fourth Amendment and retaliation.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. The Avokis' Claims
A legal action under 42 U.S.C. § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, the plaintiffs must allege: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, the Avokis claim that their Fourth Amendment rights were violated by Ekoko's detention, citation, and the search of the vehicle. The Avokis also argue they were retaliated against for filing this lawsuit against the City of Chester.
1. Fourth Amendment Claims
a. General Fourth Amendment Law
The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. See U.S. Const. amend. IV. A brief detention of a person for the purposes of investigating whether a crime was committed is a “seizure” under the Fourth Amendment, and courts judge the reasonableness of such detentions under the two-prong reasonable suspicion standard articulated in Terry v. Ohio, 392 U.S. 1 (1968). See also Arizona v. Johnson, 555 U.S. 323, 326 (2009) (applying Terry to traffic stops); United States v. Palmer, 820 F.3d 640, 648 (4th Cir. 2016). First, the investigatory stop must be lawful. This step can be met by showing that the officers reasonably suspected that the person stopped is committing or has committed a criminal offense or by showing that the officers were justified in stopping the vehicle for a traffic violation. Arizona v. Johnson, 555 U.S. at 326; Palmer, 820 F.3d at 849-50 (stating that reasonable suspicion is a “commonsense, nontechnical” standard that relies on the judgment of experienced law enforcement officers, and the articulated factors supporting reasonable suspicion during a traffic stop “must in their totality serve to eliminate a substantial portion of innocent travelers,” and also demonstrate a connection to criminal activity). Second, the officers' actions during the stop must be reasonably related in scope and duration to the basis for the seizure. Palmer, 820 F.3d at 649 (citing United States v. Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011)).
On the other hand, an arrest or citation must be supported by probable cause. See Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating that claims for false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”); see also Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002). A law enforcement officer has probable cause to effect a warrantless arrest where the totality of the facts and circumstances known to the officer at the time of the arrest would cause a reasonable officer to believe that a criminal offense has been committed. Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004); Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017). Probable cause inquiries turn on two factors: the suspect's conduct as known to the officer, and the contours of the offense thought to be committed by that conduct. Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992). Probable cause requires more than bare suspicion, but it requires less than evidence necessary to convict. Munday, 848 F.3d at 253.
Ekoko was never arrested, and whether the issuance of a citation charging a person with a misdemeanor and summoning that person to appear in court is a “seizure” under the Fourth Amendment has not been decided by the United States Court of Appeals for the Fourth Circuit. Most courts considering the issue have found that the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure. See, e.g., Glass v. Anne Arundel Cnty, 716 Fed.Appx. 179 n.1 (4th Cir. 2018) (“[A] summons alone is insufficient to support a Fourth Amendment seizure claim.”); Burg v. Gosselin, 591 F.3d 95, 98-99 (2d Cir. 2010) (collecting cases); see also United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995) (“[W]e have concluded that drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest[.]”). The court need not resolve this issue here because the court finds that other issues are dispositive of the Avokis' claims.
The Avokis spend a great deal of their briefing arguing that Covington's actions violated the Fourth Amendment because the traffic stop and Ekoko's detention took place in the “curtilage” of the Avokis' home. However, Covington did not enter or perform a search of the Avoki's home. Therefore, the concept of “curtilage,” which merely defines the area immediately surrounding a home for Fourth Amendment purposes, is not relevant here. See generally Fla. v. Jardines, 569 U.S. 1, 6 (2013). Accordingly, the court need not address any Fourth Amendment jurisprudence relating to searches and seizures in a person's home. See, e.g., United States v. Carloss, 818 F.3d 988, 992 (10th Cir. 2016) (stating generally that the Fourth Amendment does not preclude officers from merely entering private property as a member of the general public could). The Avokis also argue that the defendants' search of the vehicle violated the Fourth Amendment because the defendants did not first obtain a warrant. However, police may generally perform an “inventory search” of a vehicle without a warrant when they impound the vehicle. United States v. Matthews, 591 F.3d 230, 234-35 (4th Cir. 2009). And the record before the court and the Avokis' briefing is not sufficient to analyze whether the inventory search exception properly applies here. Therefore, the Avokis fail to meet their burden of showing that the search of the vehicle incident to its towing violated the Fourth Amendment.
b. Defendants' Arguments
The defendants argue that the Avokis cannot show that their Fourth Amendment rights were violated. Specifically, they argue that Covington had reasonable suspicion to initiate the traffic stop and detain Ekoko for “operating an uninsured vehicle” in violation of S.C. Code § 5610-520. (Defs.' Mem. Supp. Summ. J., ECF No. 304-1 at 9.) Second, they argue that Covington had probable cause to charge Ekoko with the same violation based on the information gathered during the traffic stop. Alternatively, they argue that even if Covington's actions violated the Fourth Amendment, he is entitled to qualified immunity. The court agrees that Covington is entitled to qualified immunity and summary judgment should be entered on this basis.
c. The Law of Qualified Immunity
Qualified immunity shields governmental officials performing discretionary functions from liability for damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiffs, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 231-32 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id. at 235, 242.
In determining whether the right violated was clearly established, the court defines the right “in light of the specific context of the case, not as a broad general proposition.” Parrish v. Cleveland, 372 F.3d 294, 301 (4th Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If the right was not clearly established in the specific context of the case-that is, if it was not clear to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation he confronted-then the law affords immunity from suit.” Id. (citations and internal quotation marks omitted). Moreover,
[a] Government official's conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (first alteration added). In analyzing this prong, a court in this district must first look to case law from the United States Supreme Court, the Court of Appeals for the Fourth Circuit, and the South Carolina Supreme Court; and in the absence of binding authority, the court must next consider whether the right was clearly established based on general constitutional principles or a consensus of persuasive authority. Booker v. S.C. Dep't of Corrs., 855 F.3d 533, 543 (4th Cir. 2017). The “salient question” “ ‘is whether the state of the law' at the time of an incident provided ‘fair warning' to the defendants ‘that their alleged [conduct] was unconstitutional.' ” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
The court must define the right at the appropriate level of specificity, and the Supreme Court has cautioned against defining the right at too high a level of generality. Booker, 855 F.3d at 543 (quoting al-Kidd, 563 U.S. at 742). Given the fact-specific nature of the reasonable suspicion and probable cause standards under Fourth Amendment law, defining the precise nature of the purported violation is especially important when analyzing qualified immunity in this context, and the United States Supreme Court has stressed the need to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment. District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018) (quoting White v. Pauly, 137 S.Ct. 548, 552 (2017)); but see al-Kidd, 563 U.S. at 741 (stating a case directly on point is not required). Existing precedent must place the lawfulness of the arrest “beyond debate.” Wesby at 589 (quoting al-Kidd, 563 U.S. at 741).
Moreover, “[w]hen a court addresses qualified immunity in the summary judgment context, it can condense its analysis.” Pittman v. Nelms, 87 F.3d 116, 119 (4th Cir. 1996). The court need not determine directly whether the plaintiff's evidence shows a constitutional violation, because it can combine the two prongs of the qualified immunity inquiry by asking whether “the plaintiff has ‘allege[d] the violation of a clearly established constitutional right.' ” Pittman at 119 (quoting Siegert v. Gilley, 500 U.S. 226, 231 (1991)) (alteration in original). If so, the court must then determine whether the defendant knew or should have known that his conduct was illegal. Id. (citing DiMeglio v. Haines, 45 F.3d 790, 795 (1995)). The Fourth Circuit has described this inquiry as whether “a reasonable official would understand that what he is doing violates” the Constitution. Waterman v. Batton, 393 F.3d 471, 476 (4th Cir. 2005) (quoting Saucier, 533 U.S. at 202). “Although the exact conduct at issue need not have been held unlawful for the law governing an officer's actions to be clearly established, the existing authority must be such that the unlawfulness of the conduct is manifest.” Watterman at 476 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992)).
Where a law enforcement officer asserts qualified immunity from a Fourth Amendment claim, the court need not determine whether reasonable suspicion or probable cause actually existed; rather, the court must ask, objectively, whether a reasonable officer in the defendant's position would have believed he had reasonable suspicion or probable cause to detain or arrest the plaintiff. Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir. 1998); see also Sowers v. City of Charlotte, 659 Fed.Appx. 738, 740 (4th Cir. 2016) (“The arresting officer's belief need not be correct or even more likely true than false, so long as it is reasonable.”); see also Orem v. Gillmore, 813 Fed.Appx. 90, 92-93 (4th Cir. 2020) (stating that an officer is entitled to qualified immunity if there is “arguable probable cause,” which exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable) (quoting Branch v. Gorman, 742 F.3d 1069, 1072 (8th Cir. 2014)).
d. Application to Facts
Covington initiated the traffic stop and later cited Ekoko for “operating uninsured.” (Defs.' Mot. Summ. J. Ex. A, Covington Aff. ¶ 12, ECF No. 304-6 at 3; Pls.' Mot. Summ. J. Ex. 6, Tr. at 19, ECF No. 327-6 at 20.) The statutory offense cited on Ekoko's disposition sheet is S.C. Code Ann. § 56-10-520. (Pls.' Mot. to Lift Stay Ex. 1, ECF No. 472-1 at 1.) That statute makes it a misdemeanor to operate an uninsured motor vehicle only if the vehicle's owner has not paid the uninsured motor vehicle fee as required by S.C. Code Ann. § 56-10-510. If the operator of the vehicle is not the titled owner of the vehicle, the operator can be guilty of a violation of § 56-10520 if she knows that the uninsured motor vehicle fee has not been paid. S.C. Code Ann. § 56-10520 (“A person who is the operator of an uninsured motor vehicle and not the titled owner, who knows that the required fee has not been paid to the director, is guilty of a misdemeanor ....”) (emphasis added).
The facts available to Covington at the time arguably supported a reasonable suspicion to detain Ekoko for violating § 56-10-520 and probable cause to cite her for the same. See Orem, 813 Fed.Appx. at 92-93 (stating an officer is entitled to qualified immunity if there is arguable probable cause). At the time he initiated the traffic stop, Covington knew the vehicle driven by Ekoko was uninsured and that it was registered to DRIV4LESS. That knowledge arguably provided Covington with reasonable suspicion to initiate a traffic stop to determine whether the vehicle was being operated unlawfully. During the investigatory stop, Covington learned that Ekoko was driving without proof of insurance, despite Francisco's and Ekoko's insistence that the car was insured by Progressive insurance company. Further investigation revealed that Progressive did not insure the vehicle. Moreover, though Francisco insisted that DRIV4LESS was his company, implying that he was responsible for the car being uninsured, Covington could reasonably infer that because Ekoko was driving her husband's vehicle, Ekoko knew the car was uninsured and that the uninsured motor vehicle fee had not been paid. See Zalaski v. City of Hartford, 723 F.3d 382, 393 (2d Cir. 2013) (collecting cases finding that officers in the field can rely on circumstantial evidence and inferences to establish probable cause as to the mens rea element of offenses, given the practical difficulties of obtaining such evidence); see also Paff v. Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000) (“Absent a confession, the officer considering the probable cause issue in the context of crime requiring a mens rea on the part of the suspect will always be required to rely on circumstantial evidence regarding the state of his or her mind.”). Notably, Ekoko claimed that the vehicle was insured despite being unable to produce any proof of insurance, thus professing familiarity with whether the vehicle's status complied with South Carolina law. Therefore, Covington had arguable probable cause to detain and cite Ekoko for a violation of South Carolina law because the facts and circumstances known to him at the time gave him reason to believe Ekoko knew the car was uninsured and that the uninsured motor vehicle fee had not been paid at the time she was driving the vehicle.
Under South Carolina law, operating a motor vehicle without proof of insurance is also a misdemeanor, but only for the owner of the vehicle. S.C. Code Ann. § 56-10-225(C) (“A person who fails to maintain the proof of insurance in his motor vehicle as required by subsection (A) is guilty of a misdemeanor ....”), -225(A) (requiring persons whose applications for registration and licensing of a motor vehicle have been approved by the state department of motor vehicles to maintain proof of insurance in the vehicle).
It is unclear whether Francisco owned or worked for DRIV4LESS.
Alternatively, even if Covington lacked arguable probable cause or reasonable suspicion that Ekoko was violating a South Carolina traffic statute by operating a vehicle he believed to be uninsured, he is entitled to qualified immunity under the second prong of the test alone. Neither the parties nor the court have identified a case where an officer acting under similar circumstances as Covington was held to have violated the Fourth Amendment. See Wesby, 138 S.Ct. at 590. Importantly, qualified immunity protects officers who make mistakes of fact or law. See Pearson, 555 U.S. at 231. No case law apparently addresses the question of whether a South Carolina driver can be detained and cited for “operating uninsured” in similar circumstances. Even characterizing the right at a higher level of generality, no authority puts “beyond debate” that police violate the Fourth Amendment when they initiate a traffic stop and issue a citation for an offense without direct evidence supporting the statutory mens rea requirement. See al-Kidd, 563 U.S. at 741; see also Zalaski, 723 F.3d at 393; Paff, 204 F.3d at 437. The law therefore did not give Covington “fair warning” that stopping and citing a non-owner driver operating a motor vehicle without insurance would violate the Fourth Amendment. See al-Kidd, 563 U.S. at 743 (“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.' ”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Consequently, Covington is entitled to qualified immunity as to the Avokis' Fourth Amendment claims.
To the extent the Avokis properly asserted a claim for municipal liability, they fail to point to any evidence that could establish that the City of Chester has a policy or custom of violating the Fourth Amendment. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (providing that a municipality or other local governmental entity may be liable under § 1983 for the violation of a plaintiff's constitutional rights if a municipal “policy or custom” caused the constitutional injury). Here, the Avokis claim that the City has a history of intruding on the minorities' “curtilage” and cite purported examples in the record. (Pls.' Mot. Summ. J., ECF No. 327 at 39.) However, none of the Avokis' citations corresponds with evidence that has anything to do with such a claim. Regardless, as previously explained, the Fourth Amendment conception of “curtilage” is irrelevant in this case.
2. Retaliation
The defendants argue that the Avokis do not put forth any evidence from which a jury could reasonably find that Covington stopped, detained, and cited Ekoko in retaliation for the Avokis' having filed this lawsuit. The court agrees.
To establish a retaliation claim under § 1983, plaintiffs must show they engaged in a constitutionally protected activity, the defendant took some action that adversely affected the plaintiffs' constitutional right, and there was a causal relationship between the plaintiffs' protected activity and the defendant's conduct. Martin v. Duffy, 858 F.23d 239, 249 (4th Cir. 2017). “It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured-the motive must cause the injury. Specifically, it must be a ‘but-for' cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019) (citing Hartman v. Moore, 547 U.S. 250, 256 (2006)).
Here, the Avokis have failed to point to any evidence from which a jury could reasonably find that Covington had a retaliatory motive in stopping and citing Ekoko. Initially, the court observes that at the time Covington pulled over Ekoko, the Avokis had not yet named Covington in this lawsuit. In his affidavit, Covington swears that at no point prior to initiating the traffic stop did he know that the Avokis had sued the City of Chester. (Defs.' Mot. Summ. J. Ex. A, Covington Aff. ¶ 15, ECF No. 304-6 at 3.) Covington's affidavit is supported by the transcript of the incident, wherein another officer informed Covington of this lawsuit that had already been filed, and Covington stated that he had not been made aware of the lawsuit. (Pls.' Mot. Summ. J. Ex. 6, Tr. at 24-25, ECF No. 327-6 at 25-26.) The Avokis fail to point to any contrary evidence. Therefore, the Avokis fail to demonstrate a triable issue of fact as to whether Covington had a retaliatory motive in stopping and citing Ekoko.
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motion for summary judgment (ECF No. 304) be granted as to the Avokis' remaining claims and the Avokis' motion (ECF No. 327) be denied.
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).