Opinion
C. A. 5:21-03283-BHH-MHC
05-15-2024
Altony Brooks, Plaintiff, v. Holly Hill Police Office, Cpl. Yacabozzi, Joshua H. Deter, Orangeburg County Sheriff's Office, Berkeley County Sheriff's Office, Chasity Sanders Avenger, John Doe of Orangeburg, Defendants.
REPORT AND RECOMMENDATION
(PARTIAL SUMMARY DISMISSAL)
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by Plaintiff Altony Brooks, proceeding pro se and in forma pauperis. He is a pretrial detainee at the Berkeley County Detention Center. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. Plaintiff filed an Amended Complaint on March 2, 2022.
I. BACKGROUND
Records from Berkeley County indicate that Plaintiff was arrested on July 27, 2021, on the charges of driving under suspension-2nd offense (case number 202110220002368), uninsured motor vehicle (case number 20210220002369), operating or permitting operation of a vehicle which is not registered and licensed (20210220002370), and operating a vehicle with a missing or incorrectly displayed license plate (case number 20210220002371). On November 10, 2021, Plaintiff was tried in his absence in a bench trial, found guilty of all four Berkeley County charges, and received fine-only sentences. See Berkeley County 9th Judicial Circuit Public Index, https://publicindex.sccourts.org/Berkeley/PublicIndex/PISearch.aspx [search Altony Brooks] (last visited May 10, 2024). Records from Orangeburg County indicate that Plaintiff has pending charges in Orangeburg County, with an arrest date of December 23, 2020, for threatening a public official (case number 2020A3810700828); an arrest date of August 2, 2021, for attempted escape or possession of tools to escape from prison (case number 2021A3810700588) and malicious or willful injury to a courthouse or jail (case number 2021A3810700589); and an arrest date of July 28, 2021, for resisting arrest (case number 2021A3820500078), transport of alcohol in motor vehicle with seal open (2021A3820500079), driving under suspension (2021A820500080), use of a license plate other than for vehicle which issued (2021A3820500081), uninsured motor vehicle fee violation (2021A3820500082), and threatening a public official (case number 2021A38205000083). See Orangeburg County First Judicial Circuit Public Index, https://publicindex.sccourts.org/Orangeburg/PublicIndex/PISearch.aspx [search Altony Brooks] (last visited May 10, 2024).
These records also indicate that Plaintiff is currently detained on other criminal charges in Berkeley County.
Records from Orangeburg County appear to indicate that Plaintiff failed to appear in court as to this charge on February 22, 2021.
In his Amended Complaint, Plaintiff contends, pursuant to 42 U.S.C. § 1983 (§ 1983), that his Fourth, Eighth, and Fourteenth Amendment rights were violated. He also appears to allege that his rights under the South Carolina Constitution were violated, and alleges other claims under South Carolina law including claims for gross negligence and outrage. Amended Complaint, ECF No. 25 at 5.
Plaintiff's contends that Defendant Corporal Yacabozzi (Yacabozzi), a deputy of Defendant Berkeley County Sheriff's Office, violated his rights by arresting him without a warrant on July 27, 2021. He asserts that Defendant Yacabozzi is “liable for illegal search and seizure in arresting Plaintiff without probable cause[,]” Plaintiff also claims that Defendant Yacabozzi used excessive force against him and is liable for assault and battery under South Carolina law. Specifically, Plaintiff alleges that Yacabozzi handcuffed him too tightly and then rammed him into an SUV until Yacabozzi and other officers were able to put Plaintiff into the police vehicle and drive him to the Orangeburg Calhoun Detention Center. ECF No. 25 at 6, 11.
Plaintiff brings claims against Defendants Yacabozzi and Deter in their individual capacities only. ECF No. 25 at 2-3.
Plaintiff states that he was transported to the Orangeburg County Detention Center on July 27, 2021, at which time an unidentified black male defendant, presumably Defendant John Doe (Doe) from Defendant Orangeburg County Sheriff's Office, allegedly handcuffed Plaintiff too tightly and Plaintiff's hands turned purple. ECF No. 25 at 6. Plaintiff claims that Doe is liable for excessive use of force and false arrest. Id. at 11. Plaintiff was allegedly taken to the Orangeburg County Regional Hospital, at which time officers from the Holly Hill Police Office questioned him for twelve or more hours while Plaintiff was handcuffed to a bed. Plaintiff claims that his legs and wrists were swollen and he had abrasions and contusions on his wrist, legs, ankles, and arms. Id. at 7.
On July 28, 2021, Plaintiff allegedly was taken to the public safety office of Orangeburg County and appeared before Defendant City of Orangeburg Magistrate Chasity Sanders Avenger (Judge Avenger). Plaintiff claims he asked to speak, Judge Avenger replied “no,” and Plaintiff then walked towards the door to leave. Thereafter, Defendant Joshua H. Deter, and other officers who have not been named as Defendants, allegedly held Plaintiff in place while Defendant Deter “clenched the cuffs and belly chains against Plaintiff[']s wrist causing Plaintiff to scream in pain” and that Deter “kneed Plaintiff in the buttocks[.]” Plaintiff claims he was later “dragged outside and ragged around[.] ECF No. 25 at 7.
Plaintiff asserts that Judge Avenger improperly held him in jail for contempt for 180 days. He alleges that warrants signed by Avenger (on the Orangeburg charges of resisting arrest, open container, driving under suspension first, use of a license plate other than for vehicle issued, operating an uninsured motor vehicle, and threatening the life of a public employee) all lack probable cause. ECF No. 25 at 7-8.
As relief, Plaintiff moves for injunctive and declaratory relief against Defendant Judge Avinger, but does not specify what injunctive relief he is seeking. He appears to request monetary damages against all Defendants. ECF No. 25 at 12-13.
II. STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
Based on review of the Amended Complaint, it is recommended that the following Defendants and claims be summarily dismissed.
A. Judicial Immunity/Defendant Sanders
Plaintiff alleges that Judge Avinger violated his right to be given bail on non-capital charges in violation of his Fifth, Eighth, and Fourteenth Amendment rights as well as Article 1, Section 15 of the South Carolina Constitution. ECF No. 25 at 12. However, based upon the facts alleged, Judge Avinger is entitled to judicial immunity. It is well settled that judges have immunity from claims arising out of their judicial actions. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987) (a suit by South Carolina inmate against two Virginia magistrates); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (“It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions.”); see also Siegert v. Gilley, 500 U.S. 226 (1991) (immunity presents a threshold question which should be resolved before discovery is even allowed). Further, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356-57. Judicial immunity is not pierced by allegations of corruption or bad faith. Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding that “immunity applies even when the judge is accused of acting maliciously and corruptly”). Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11. Thus, it is recommended that Defendant Judge Avinger be summarily dismissed as a party to this action.
B. False Arrest, False Imprisonment, and Illegal Search and Seizure Claims against Yacabozzi
Plaintiff may be attempting to allege claims for false arrest, false imprisonment, and/or illegal search and seizure against Defendant Yacabozzi. As noted above, records from Berkeley County indicate that Plaintiff has been found guilty of all the charges from July 27, 2021. Thus, to the extent Plaintiff is requesting monetary damages as to these convictions, his claims are subject to summary dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court established the following test to determine whether a prisoner's claim for violation of due process in the context of a criminal proceeding is cognizable under § 1983:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Heck, 512 U.S. at 486-487 (internal footnotes omitted). Plaintiff's Amended Complaint contains no indication that his Berkeley County convictions (from his arrests on July 27, 2021) have been overturned through direct appeals, state post-conviction relief applications, or habeas corpus proceedings or have otherwise been invalidated. Thus, it is recommended that any claims against Defendant Yacabozzi for false arrest, false imprisonment, and/or illegal search and seizure be summarily dismissed because a judgment in Plaintiff's favor would necessarily imply the invalidity of his convictions and/or sentences on the Berkeley County charges from July 27, 2021 (driving under suspension-2ndoffense, uninsured motor vehicle, operating or permitting operation of a vehicle which is not registered and licensed, and operating a vehicle with a missing or incorrectly displayed license plate).
However, where a plaintiff has already served his sentence, the Heck bar may not apply. See Wilson v. Johnson, 535 F.3d 262, 267-268 (4th Cir. 2008) (holding that former prisoners may in certain circumstances be exempt from Heck's favorable termination requirement); but see Bishop v. County of Macon, 484 Fed.Appx. 753 (4th Cir. 2012) (unpublished) (clarifying that the Wilson exemption to Heck does not apply to every § 1983 suit brought by a former prisoner who failed to obtain habeas relief while in custody). Here, it does not appear that Plaintiff has paid the fines and he has not argued or asserted any facts to indicate that he was unable to seek habeas relief.
C. Defendants Berkeley County Sheriff's Office and Orangeburg County Sheriff's Office
Plaintiff alleges that Defendants Berkeley County Sheriff's Office and Orangeburg County Sheriff's Office are liable for gross negligence in violation of the South Carolina Tort Claims Act (SCTCA). He also claims that these Defendants are liable for false arrest in violation of the South Carolina Constitution. ECF No. 25 at 11-12.
It does not appear that Plaintiff is asserting claims under § 1983 claims against Defendants Berkeley County Sheriff's Office and Orangeburg County Sheriff's Office. Even if he is attempting to do so, any § 1983 claims should be dismissed because these Defendants are not “persons” subject to suit under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (explaining that neither the state nor its agencies is a “person” within § 1983); Ramirez v. Anderson Cty. Sheriff's Office, No. 1:14-cv-3217-TMC-SVH, 2016 WL 4394505, at *2 (D.S.C. July 25, 2016) (explaining the sheriff's office, as an arm of the state, is not a “person” within the meaning of § 1983), report and recommendation adopted, 2016 WL 4266130 (D.S.C. Aug. 12, 2016).
Under the Eleventh Amendment, federal courts are barred from hearing claims for monetary damages against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to actions ‘against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. at 58. Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
A county sheriff's office is considered a state agency, not a municipal department. See Williams v. Dorchester Cty. Det. Ctr., 987 F.Supp.2d 690, 692-93 (D.S.C. 2013); Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988). Consequently, the Berkeley and Orangeburg County Sheriff's Offices, as state agencies, are entitled to Eleventh Amendment Immunity. See, e.g., Collins v. Aiken Cty. Det. Ctr., No. 8:18-CV-2744-MGL-JDA, 2018 WL 6288115, at *2 (D.S.C. Oct. 24, 2018) (noting a Sheriff's office is entitled to Eleventh Amendment immunity), report and recommendation adopted, 2018 WL 6267756 (D.S.C. Nov. 30, 2018); Muhammad-Ali v. Klans, No. CV 1:15-308-MGL-SVH, 2015 WL 11109836, at *3 (D.S.C. Aug. 13, 2015) (“The Aiken County Sheriff's Department is also entitled to Eleventh Amendment Immunity. Sheriff's departments in South Carolina have repeatedly been held to be exempt from § 1983 liability, as they are considered state agencies.”), report and recommendation adopted sub nom. Muhammad-Ali v. Ku Klux Klan, 2015 WL 11108438 (D.S.C. Sept. 22, 2015).
Plaintiff's claims under the SCTCA against Defendants Berkeley County Sheriff's Office and Orangeburg County Sheriff's Office are also subject to dismissal. “Pursuant to the South Carolina Tort Claims Act, SC Code §§ 15-78-10 through 15-78-200, (the ‘SCTCA'), South Carolina has not waived its Eleventh Amendment immunity for lawsuits in federal court, consenting to suit only in South Carolina state court to the extent that it has waived tort claims against it.” Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 379 (D.S.C. 2019); see S.C. Code § 15-78-20(e) (“Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued in any state court beyond the boundaries of the State of South Carolina.”); see also Introini v. S.C. Nat'l Guard, 828 F.Supp. 391, 395 (D.S.C. 1993) (holding that the SCTCA makes state agencies subject to suit in state court under certain circumstances, but the South Carolina legislature has expressly preserved the state's immunity to suit in federal court to the full extent available under the Eleventh Amendment). Because the Sheriff's Office is an agent or instrumentality of the State and South Carolina has not consented to suit in federal court, the state-law claims against Defendants Berkeley County Sheriff's Office and Orangeburg County Sheriff's Office should be dismissed.
Plaintiff's claims under the South Carolina Constitution should also be dismissed. Plaintiff has pointed to no constitutional provision or enabling statute allowing for civil damages for violations of the South Carolina Constitution. “South Carolina does not recognize a cause of action for monetary damages for constitutional violations.” Shuler v. N. Charleston Police Dep't, C/A No. 2:19-1013-MGL-PJG, 2020 WL 1322870, at *5 n.7 (D.S.C. Mar. 19, 2020) (citing Palmer v. State, 829 S.E.2d 255, 261 (S.C. Ct. App. 2019)), report and recommendation adopted, 2020 WL 1892216 (D.S.C. Apr. 16, 2020).
Additionally, it appears that any claims against the Berkeley County Sheriff's Office should be summarily dismissed because Plaintiff only brings claims against this entity in its individual capacity. ECF No. 25 at 2-3. This Defendant is not an individual.
D. Holly Hill Police Office
Plaintiff alleges that Defendant Holly Hill Police Office violated his Fourth and Eighth Amendment rights. ECF No. 25 at 11. However, the Holly Hill Police Office is entitled to summary dismissal as to these § 1983 claims because this entity is not a “person” subject to suit under § 1983. A police department is a group of officers in a building and, as such, is not subject to suit under § 1983. Buildings and correctional institutions, as well as sheriff's departments and police departments, usually are not considered legal entities subject to suit. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the medical department of a prison is not a person pursuant to § 1983); Nelson v. Lexington Cnty. Det. Ctr., C/A No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (finding that a building, a detention center, is not amenable to suit under § 1983 and that Food Service Supervisors was a group of people not subject to suit); see also Post v. City of Fort Lauderdale, 750 F.Supp. 1131 (S.D. Fla. 1990) (dismissing city police department as improper defendant in § 1983 action because not “person” under the statute); Shelby v. City of Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga. 1984) (dismissing police department as party defendant because it was merely vehicle through which city government fulfills policing functions). The view that a municipal police department is not a legal entity subject to liability under § 1983 is in accord with the majority of federal courts that have addressed this issue. See, e.g., Dean v. Barbe r, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504, 510 (D. Conn. 2008) (“[A] municipal police department is not subject to suit under section 1983 because it is not an independent legal entity.”); Terrell v. City of Harrisburg Police Dep't, 549 F.Supp.2d 671, 686 (M.D. Pa. 2008) (“It is well-settled that police departments operated by municipalities are not ‘persons' amenable to suit under § 1983.”); Gore v. Conway Police Dep't, No. 9:08-1806-RBH, 2008 WL 2566985 (D.S.C. June 26, 2008); Lyons v. Edgefield County Police, No. 8:05-2503-MBS, 2006 WL 3827501, at *3 (D.S.C. Dec. 28, 2006) (police department not a separate suable entity amenable to suit).
To state a cause of action under § 1983, a plaintiff must allege that: (1) “some person has deprived him of a federal right,” and (2) “the person who has deprived him of that right acted under color of state or [federal] law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also 42 U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167 (1961).
Plaintiff also appears to allege claims against Defendant Holly Hill Police Office under South Carolina law for assault and battery, outrage, and “corporal punishment[.]” ECF No. 25 at 11. However, these claims should be dismissed because they are subject to the limitations of the SCTCA. The SCTCA is the exclusive remedy for any tort committed by an employee of a governmental entity. S.C. Code Ann § 15-78-70(a); Hawkins v. City of Greenville, 594 S.E.2d 557, 563 (S.C. Ct. App. 2004); Heath v. Town of Isle of Palms, No. CV 2:18-3190-RMG, 2019 WL 447317, at *2 (D.S.C. Feb. 5, 2019) (citing S.C. Code Ann. § 15-78-30(d) and (h)). When a person brings an action against a governmental entity pursuant to the SCTCA, the person “shall name as a party defendant only the agency or political subdivision for which the employee was acting.” S.C. Code Ann. § 15-78-70(c); see also Newkirk v. Enzor, 240 F.Supp.3d 426, 436 (D.S.C. 2017). As such, federal courts in this district have determined that municipal police departments are not the proper party defendant under the SCTCA and have dismissed the departments based upon that finding. McCree v. Chester Police Dep't, No. 0:20-cv-00867-JMC, 2021 WL 3711098, at *3 (D.S.C. Aug. 20, 2021) (finding that the City of Chester, and not the Chester Police Department, was the proper defendant for SCTCA claims); see Wilson v. Slager, No. 2:15-2170-DCN-MGB, 2016 WL 11407785, at *6 (D.S.C. Jan. 25, 2016) (recommending dismissal of SCTCA claims against police department upon finding that the city, not the police department, was proper party under the SCTCA), report and recommendation adopted sub nom. Wilson v. First Class Patrol Officers Michael Slager, 2016 WL 1253179 (D.S.C. Mar. 31, 2016).
Here, Plaintiff alleges claims against Defendant Deter, an officer of the Holly Hill Police Office, in his individual capacity. See ECF No. 25 at 3, Therefore, the Town of Holly Hill is the political subdivision for which Defendant Deter was acting at the time of the alleged conduct at issue, and the Holly Hill Police Office is not the proper entity to sue under the SCTCA for the torts allegedly committed by Defendant Deter. Accordingly, the undersigned recommends that Defendant Holly Hill Police Office be summarily dismissed from this action.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court summarily dismiss Defendants Judge Chasity Sanders Avinger, Holly Hill Police Office, Berkeley County Sheriff's Office, and Orangeburg County Sheriff's Office as Defendants. It is also recommended that Plaintiff's § 1983 claims against Defendant Yacabozzi for false arrest, false imprisonment, and illegal search and seizure be summarily dismissed. The Amended Complaint should be served on Defendants Yacabozzi, Deter, and Doe.
If the Report and Recommendation is adopted, the case would proceed against Defendant Yacabozzi only as to Plaintiff's remaining claims in the Amended Complaint against this Defendant.
Plaintiff's attention is directed to the important notice on the following 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
Post Office Box 835
Charleston, South Carolina 29402
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).