Opinion
7:19-cv-02575-TMC-JDA
08-31-2021
Kelvin Jerome Durham, Plaintiff, v. Union County, David Taylor, Wendy Childers, Brad Woods, John Sherfield, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
This matter is before the Court on Defendants' motion for summary judgment. [Doc. 46.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
Plaintiff, represented by counsel, filed this action on July 21, 2019, in the Union County Court of Common Pleas. [Doc. 1-1.] Defendants removed the action to this Court on September 12, 2019. [Doc. 1.] On May 10, 2021, Defendants filed a motion for summary judgment. [Doc. 46.] Plaintiff filed a response in opposition to the motion on July 1, 2021, and on July 22, 2021, Defendants filed a reply. [Docs. 51; 54.] Defendants' motion is ripe for review.
BACKGROUND
Viewing the summary judgment record in the light most favorable to Plaintiff, as is appropriate on consideration of Defendants' summary judgment motion, the undersigned gleans the following facts. On July 30, 2017, at 9:29 p.m., Plaintiff placed a 911 call and told the dispatcher that he was walking near Fairforest Creek and someone was chasing him. [Doc. 46-2 at 3, 8.] He stated that his phone was down to 1% battery power. [Id.]
During the call the line went dead, and a return call to his line went straight to voicemail. [Id.] About three minutes later an officer on scene observed a black BMW on the side of the road just before the Fairforest Creek Bridge. [Id.]
Defendant Sheriff David Taylor arrived on the scene at 10:08 p.m. and observed that the BMW's engine was still warm. [Id. at 7-8.] It was unlocked with the windows down, the sunroof open, and the key visible on the center console, although Plaintiff's family said that Plaintiff would never leave his car unlocked. [Id. at 8; Doc. 46-3 at 4.] Plaintiff's brother told investigators that Plaintiff had brought his girlfriend, who lived in Florida, to Union for the week and that Plaintiff had been with his girlfriend and Marcus Foster when Plaintiff left at 5:00 p.m., purportedly to go fishing. [Doc. 46-2 at 8.] The brother told investigators that he and Plaintiff normally fished at Tiger River, [id. at 8], not Fairforest Creek. During the discussion with investigators, Plaintiff's brother stated that he would like to hear Plaintiff's 911 call to determine whether Plaintiff was faking it. [Doc. 46-3 at 8, 13.]
On July 31, 2017, the day after Plaintiff's initial 911 call, dispatch received a call that Plaintiff was at 5953 Whitmire Highway, having escaped from his kidnappers. [Doc. 46-2 at 12.] Plaintiff was interviewed by investigators, who noted that he did not appear to be in any distress and that he discussed the episode in a matter-of-fact manner. [Id. at 5, 12; Doc. 46-5 at 10.] His hands and clothes did not appear dirty, he did not have any scratches or mud on his body or shoes, and he did not smell of fish. [Doc. 46-5 at 10-11.]
Plaintiff told investigators the following. He had driven alone to go fishing when he parked his car and walked down to the water and proceeded to catch several bass. [Id. at 2.] He had finished fishing and was walking uphill when an unknown male saw him and said, “‘Get him. We got you now.'” [Docs. 46-2 at 9.] Plaintiff immediately called 911 and began running back down the hill toward the creek. [Id.] As he ran, he dropped his fishing rod. [Doc. 46-3 at 6.] The unknown man pursued and caught up with him, forced him at gunpoint to get into a car, and covered his eyes. [Doc. 46-2 at 9, 12.] That man and another unknown man drove him to an unknown location and placed him in a locked closet. [Id.] Plaintiff overheard the kidnappers discussing that “‘Byrdman put the hit out.'” [Id. at 9.] The following day, the man with the gun removed him from the closet, covered his eyes, bound his hands with a t-shirt, and put him in the back seat of a car. [Id. at 9, 12.] When the man stopped the car to urinate and left the car door open, Plaintiff was able to free his hands, uncover his eyes, and escape. [Id.] Plaintiff told investigators that he believed that his father, Kelvin Byrd, was trying to have him killed. [Id. at 9.]
The K-9 unit searched the area around the vehicle and along the river on July 30 and 31 and was unable to locate any track. [Docs. 46-3 at 5, 8; 46-5 at 4, 8-9.] Divers also attempted to find evidence but found nothing. [Docs. 46-3 at 8; 46-5 at 8-9.] And no fishing rods or fishing tackle were ever discovered on the ground or water. [Docs. 46-3 at 8; 46-5 at 4, 8-9.]
As part of the investigation, on August 1, 2017, investigators walked with Plaintiff through the area involved in the alleged incident. [Docs. 46-2 at 26; 46-5 at 6.] Plaintiff again gave his account of the relevant events. [Doc. 46-2 at 26-28.] He noted that he had parked his car around 7:45 p.m. on the evening in question, that he had dropped his fishing rod after he saw the men but prior to being abducted, and that he put his phone in his pocket once the man caught up to him. [Id. at 26.] Plaintiff showed the investigators the exact route that he took the day of the alleged incident. [Id. at 26-28.] Plaintiff told investigators after he escaped, he defecated in the woods [id. at 28]; however, at the place Plaintiff identified, the officers saw what appeared to be animal feces, and they did not see any feces that appeared to be human [Doc. 46-5 at 11-12]. When asked about his cell phone, Plaintiff stated that it must have fallen from his pocket when his kidnappers initially placed him into their vehicle because Plaintiff did not have it when he was put into the closet. [Doc. 46-2 at 28.] Plaintiff stated that he assumed his wallet fell out of his pocket at the same time. [Id.]
Investigators were advised that on July 29, 2017, a stencil had been used to spray paint “I will kill you” on the front glass door of the house where Plaintiff resided. [Id. at 8; Doc. 46-5 at 5; 51-2 at 14-15.] Investigators were also advised that Plaintiff filed a police report on July 10, 2017, alleging that a car had struck him while he was jogging [Docs. 46-2 at 8; 46-3 at 9-10]; however, a reserve deputy with the sheriff's office who is a medical doctor determined that Plaintiff's reported injuries were inconsistent with such an incident [Doc. 46-3 at 2, 5]. It was determined that the day after Plaintiff claimed to have been struck by the car, he had been due to appear in court in Georgetown, South Carolina, on pending criminal charges. [Id. at 10, 17; Doc. 46-5 at 10.] Rather than going to court that day, however, Plaintiff traveled to Daytona, Florida. [Docs. 46-2 at 20; 46-3 at 10-11, 17; 46-5 at 10.] Investigators learned that he was due again in court in Georgetown on August 1 or 2, 2017, just after the alleged kidnapping. [Doc. 46-3 at 19-20; 46-5 at 5, 10.]
Plaintiff takes issue with the reserve deputy's determination, pointing to medical records from the Union Medical Center Emergency Department that he maintains are consistent with his account of events. [Doc. 51 at 8.] Those include records indicating that Plaintiff had abrasions on his arm and hand, tenderness in his back, and contusions, and that he was expected to be in some pain for four to five days. [Doc. 51-1 at 5, 6, 9.]
Plaintiff also told investigators he was employed at Laserflex; however, Laserflex told investigators that Plaintiff had actually been terminated two weeks before. [Docs. 46-2 at 4; 46-3 at 9; 46-5 at 6, 11.] Investigators also further learned that Plaintiff was on federal probation. [Doc. 46-2 at 15.] He had given false information to a federal judge at a guilty plea and also falsified a jury summons that he gave to his employer. [Id.; Doc. 46-3 at 8-9.]
Having interviewed Plaintiff and reviewed his statement, investigators noted a number of inconsistencies. Given that Plaintiff's car was parked next to a gate on private property, there was a no-trespassing sign just behind the gate where Plaintiff parked, and Plaintiff admitted that he had been fishing in an area that was accessible only by crossing private property, Plaintiff was issued a ticket for trespassing and a 48-hour hold was placed on him as the investigation continued. [Docs. 46-2 at 9; 46-3 at 3, 21; 46-5 at 2.] Subsequently, Defendants presented the facts gleaned from their investigation to a magistrate judge, who issued a warrant for Plaintiff's arrest on August 2, 2017, on the charge of filing a false police report. [Docs. 46-2 at 11; 46-3 at 12.] These charges were later nolle prossed. [Docs. 46-5 at 2, 12; 51-2 at 5.]
At a supervised-release-revocation hearing on March 1, 2018, Plaintiff appeared with counsel and admitted to the following violations: (1) new criminal conduct for driving under the influence and leaving the scene of an accident in May 2016, a Grade C violation; (2) new criminal conduct for domestic violence, third degree in April 2017, a Grade C violation; (3) providing a falsified summons to appear in the United States District Court to his employer in April 2017, a Grade C violation; and (4) new criminal conduct for trespassing in July 2017 and for filing a false police report of a felony in August 2017, a Grade B violation. [Doc. 46-6 at 3-6.] Based on Plaintiff's admission to having committed these violations, the court revoked his supervised release and he was committed to the custody of the Bureau of Prisons for a term of nine months. [Id. at 11.]
In the present case, Plaintiff asserts the following causes of action: federal claims under § 1983 for violating Plaintiff's Fourth, Fifth, and Fourteenth Amendment rights against Wendy Childers, Brad Woods, David Taylor, and John Sherfield [Doc. 1-1 ¶¶ 42-53], as well as a claim under Monell v. Department of Social Services, 436 U.S. 658 (1978), against the County of Union (“the County”) [id. ¶¶ 54-57]; and state-law claims against the County for malicious prosecution, gross negligence, and violation of the South Carolina constitution [id. ¶¶ 29-41]. Plaintiff seeks compensatory and punitive damages, fees and costs, and any other appropriate relief. [Id. at 13.]
APPLICABLE LAW
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 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).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements:
(1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.”Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of the State itself.'” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying ‘the specific conduct of which the plaintiff complains.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only 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.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) 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). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Qualified Immunity
Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not “violate clearly established rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity does not protect an official who violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id. Further, qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
“In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). The first concerns whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the officer's conduct violated a federal right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The second “asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional.” Smith, 781 F.3d at 100. For purposes of this analysis, a right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
District court judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a court decides in the negative the first prong it considers-i.e., the court decides the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation-the court need not consider the other prong of the qualified immunity analysis. See Id. at 243-45; Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (holding the court “need not formally resolve” the constitutional question of “whether the [plaintiffs] were arrested without probable cause” to address the plaintiffs' § 1983 claim; the court stated that it “need only determine whether [the defendant]-a deputy sheriff performing within the normal course of his employment-acted with the objective reasonableness necessary to entitle him to qualified immunity”).
DISCUSSION
Federal Claims Against the Officers
Plaintiff's § 1983 claims are all based on his allegations that Defendants arrested him and charged him without probable cause for trespassing and filing a false police report. [Doc. 1-1 ¶¶ 42-53.] Defendants contend they are entitled to summary judgment on these claims. [Doc. 46-1 at 6-17.] The Court agrees.
Section 1983 actions premised on malicious prosecution or false arrest are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”); Curtis v. Devlin, No. 1:04-cv-409, 2005 WL 940571, at *6 (E.D. Va. Apr. 19, 2005) (explaining that § 1983 actions for false arrest and malicious prosecution should be analyzed under the Fourth Amendment). The same is true of such claims complaining of due process violations. Brooks v. City of Winston-Salem, N.C. , 85 F.3d 178, 184 (4th Cir. 1996) (“[T]he Fourth Amendment provides all of the pretrial process that is constitutionally due to a criminal defendant in order to detain him prior to trial.”).
To prove a claim for false arrest, a plaintiff must demonstrate that he was arrested without probable cause. Sowers v. City of Charlotte, 659 Fed.Appx. 738, 740 (4th Cir. 2016). And “a § 1983 claim for damages due to false imprisonment is akin to a malicious prosecution claim.” McCormick v. Wright, No. 2:10-cv-00033-RBH, 2010 WL 565303, at *3 (D.S.C. Feb. 17, 2010); see also Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (“What is conventionally referred to as a ‘§ 1983 malicious prosecution' action is nothing more than a § 1983 claim arising from a Fourth Amendment violation.”). “To [prove] such a claim, a plaintiff must [show] that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012). Accordingly, to prevail on any of his § 1983 claims, Plaintiff must show that he was arrested without probable cause.
“Whether probable cause [to believe that a criminal offense has been or is being committed] exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004); see also Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 334 (4th Cir. 2009) (“[P]robable cause exists where <the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.'”) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). The analysis ?turns on two factors in combination: 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). ?To prove an absence of probable cause, [a plaintiff] must allege a set of facts which made it unjustifiable for a reasonable officer to conclude that []he was violating the [law].” Brown v. Gilmore, 278 F.3d 362, 368 (4th Cir. 2002).
The relevant inquiry in the Fourth Circuit regarding the facts known to the officer is what was reported to the officer. See Street v. Surdyka, 492 F.2d 368, 372 (4th Cir. 1974) (?We do not think the fourth amendment should now be interpreted to prohibit warrantless arrests for misdemeanors committed outside an officer's presence.”); United States v. Rivera, No. 7:15-cv-101, 2018 WL 6625080, at *3 n.7 (W.D. Va. Dec. 18, 2018) (noting that “[m]ore recently, the Fourth Circuit declined to address the presence issue further, but recognized that several other circuits have held that the Fourth Amendment contains no ‘in the presence' requirement for misdemeanors, ” that “district courts in this Circuit have routinely adopted the Street holding, ” and that “[t]he Supreme Court has refused to address the issue”).
Here, the Court concludes that probable cause supported both the trespassing charge and the false-report charge. The Court discusses these two charges in turn.
Probable Cause Supported the Trespassing Charge
As is relevant here, South Carolina's criminal trespassing statute states that “[a]ny person who, without legal cause or good excuse, enters . . . on the premises of another person after having been warned not to do so” is guilty of trespass. S.C. Code Ann. § 16-11-620. Here, Plaintiff does not dispute that he had to walk over private property to get from his car to the place he admitted he was fishing. Rather, his argument pertains to whether there was reason for the officers to believe the no-trespassing sign warned Plaintiff that he should not come onto the premises. Plaintiff argues that the record contains no evidence that the sign was actually there or, if it was there, that it was visible. [Doc. 51 at 10.] As to whether the summary judgment record contains evidence that the sign was actually there, Plaintiff is simply incorrect. Officer Childers testified that there was a no-trespassing sign just behind the gate where Plaintiff parked. [Doc. 46-3 at 3.] Regarding Plaintiff's argument that something may have prevented Plaintiff from seeing the sign, Plaintiff fails to appreciate that it is his burden to prove the absence of probable cause. See Evans, 703 F.3d at 647. He has forecasted no evidence regarding why a sign located near where Plaintiff had parked would have not been visible from where he parked his car at 7:45 on an evening in late July. In short, Plaintiff has forecasted no evidence from which it could be reasonably inferred that there was no probable cause supporting the trespassing charge. Cf. United States v. Bumpers, 705 F.3d 168, 175 (4th Cir. 2013) (concluding that an officer reasonably suspected two men of the crime of trespassing when he observed them “standing next to a pair of garbage dumpsters-off to the north side of the [convenience] store in a location ‘not even close' to the store's west side entrance-for five to ten seconds”; “[t]he area where the men were standing was posted ‘no trespassing'”; and “no evidence was presented . . . suggesting that [the men were] lawful patrons of the store”).
Probable Cause Supported the False-Report Charge
Under South Carolina law, “[i]t is unlawful for a person to knowingly file a false police report, ” and a person who does so “by falsely reporting a felony is guilty of a felony.” S.C. Code § 16-17-722(A)-(B). The Court concludes that reasonably prudent officers in Defendants' positions would have been warranted in believing Plaintiff had filed a false police report.
As the Court has noted, a magistrate judge issued a warrant for Plaintiff's arrest on the false-report charge. [Doc. 46-2 at 11.] Because the Court concludes Plaintiff has not forecasted evidence creating a genuine factual issue regarding whether his arrest was unsupported by probable cause, the Court declines to address the validity of the warrant. See Graves v. Mahoning Cty., 821 F.3d 772, 775 (6th Cir. 2016) (stating that a plaintiff “may not prevail merely by showing that they were arrested with a defective warrant; they must show that they were unreasonably seized”).
Plaintiff's 911 call on July 30, 2017, set off an extensive investigation by Defendants and others. By the time Plaintiff was arrested, investigators knew he had left his girlfriend-who was visiting from Florida for only a week- and a friend to go fishing in an area where his family said he did not usually fish. [Docs. 46-2 at 8; 46-3 at 4.] His car was found in a condition he would never leave it in, and the engine was still warm after 10:00 even though he claimed he had not driven the car for the prior two hours. [Docs. 46-2 at 7; 46-3 at 4.] Meanwhile, police dogs could not pick up any scent from the places Plaintiff claimed to have been, and when investigators saw Plaintiff after he had allegedly escaped the kidnapping, he Plaintiff had no scratches, dirt, or mud on his person. [Doc. 46-5 at 4, 8, 10-11.] Additionally, investigators never found any fishing rod in the area where Plaintiff says he dropped one. [Docs. 46-3 at 8; 46-5 at 4, 8-9.]
Investigators obtained information that Plaintiff was on federal probation and the probation office noted his history of lies and deception [Docs. 46-2 at 15; 46-3 at 8-9], and his own brother seemed to question whether he was being truthful during the 911 call [Doc. 46-3 at 5]. Plaintiff also lied to investigators about whether he was employed. [Docs. 46-2 at 4; 46-3 at 9; 46-5 at 6, 11.] Adding to the apparent pattern of deception was the fact that Plaintiff had recently claimed to have been the victim of a hit and run right before he was due to appear in court, yet his reported injuries were inconsistent with the incident he described. [Docs. 46-2 at 8; 46-3 at 2, 5, 9-10.] He had also claimed that his injuries kept him from coming to court, yet he managed to travel to Florida. [Docs. 46-2 at 20; 46-3 at 10-11, 17; 46-5 at 10.] In light of the fact that Plaintiff was again due in court within a couple of days of the alleged kidnapping, investigators had additional reason to view his claims with great skepticism. Given that they could find no evidence to corroborate his version of events despite extensive investigations, there was ample reason for a reasonable officer to believe Plaintiff had filed a false police report.
Plaintiff now argues that he did not attend court in Georgetown because he was represented by counsel and did not need to attend. [Doc. 51 at 8.] However, Plaintiff admitted in his deposition that he actually was not represented by counsel on those charges. [Doc. 54-2 at 2-3.]
Plaintiff also points to three pages of what he claims to be from a report of his expert, and he claims those pages also undercut the case for probable cause regarding the false-report charge. [Doc. 51 at 9.] However, the referenced pages [Doc. 51-3] are not part of an affidavit or declaration and have not been made an exhibit to a declaration. As such, the Court cannot consider them on summary judgment. See Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (“It is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.”). And even if the Court could consider them, they would have no bearing on the Court's analysis of the legal question of whether probable cause supported the charge. Plaintiff contends that the notes Childers took of her interview with Plaintiff tend to show that the kidnapping actually occurred [Doc. 51 at 9], but the notes Plaintiff references [Doc. 51-2 at 6-8] reflect only what Plaintiff told Childers. They give no indication that Plaintiff's story was true.
Accordingly, because the Court concludes that Plaintiff has failed to forecast evidence that Defendants lacked probable cause with regard to either the trespassing charge or the charge for filing a false police report, the Court recommends that Defendants' summary judgment motion be granted as to Plaintiff's § 1983 claims.
Because Plaintiff has failed to demonstrate that the officers violated Plaintiff's constitutional rights, they are also entitled to qualified immunity as to the § 1983 claim to the extent it is alleged against them in their individual capacities. See Capps v. Oconee Cty. Sheriff's Office, No. 8:18-cv-01434-DCC, 2019 WL 3521740, at *2 (D.S.C. Aug. 2, 2019). Insofar as the Court concludes that Defendants are entitled to summary judgment on the § 1983 claims because probable cause supported both charges, the Court declines to address the other arguments raised in the summary judgment motion.
Monell Claim
Plaintiff's failure-to-supervise claim “require[s] a predicate constitutional violation to proceed[ because] 'supervisors and municipalities cannot be liable under § 1983 without some predicate “constitutional injury at the hands of the individual [state] officer, ” at least in suits for damages.'” Evans, 703 F.3d at 654 (last alteration in original) (quoting Waybright v. Frederick Cty., 528 F.3d 199, 203 (4th Cir. 2008)). Because, as discussed above, Plaintiff has failed to forecast evidence that the individual officers violated Plaintiff's constitutional rights, Plaintiff has also failed to forecast evidence necessary to support a failure-to-supervise claim. See Luckett v. Simon, No. 0:13-2115-CMC-PJG, 2015 WL 3853088, at *4 (D.S.C. June 19, 2015) (stating that “no actionable claim against a supervisor can exist without a constitutional violation committed by an employee”). In any event, Plaintiff asserts in his response opposing summary judgment that he does not make a Monell claim or any claim based on municipal liability. [Doc. 51 at 12.] Accordingly, the Court recommends that, Defendants' motion for summary judgment be granted to the extent that Plaintiff asserts a federal claim against the County.
State Claims
Plaintiff's state-law claims, all of which are asserted against the County, could be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state-law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), however, if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Further, the Supreme Court has warned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. . . . [I]f the federal claims are dismissed before trial . . . the state law claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
A civil action for Plaintiff's state-law claims could be cognizable in this Court under the diversity statute, if that statute's requirements are satisfied. However, this Court does not have diversity jurisdiction in this case because the Complaint does not allege the required complete diversity of citizenship of the parties. [See Doc. 1-1]; see also 28 U.S.C. § 1332.] Further, as stated, the City Defendants removed the action to this Court based solely on federal question jurisdiction. [Doc. 1.]
Applying these factors, the Court concludes that the factors counsel in favor of the Court retaining jurisdiction over Plaintiff's state-law malicious prosecution claim. This case has been pending since July 2019 and has been pending in this Court since September 2019. Discovery has concluded. Remand to state court would cause needless delay as the state court took the steps necessary to acquaint itself with issues with which this Court is already familiar. See Sales v. Res-Care, Inc., No. 3:18-03591-JFA-JDA, 2021 WL 1186553, at *5 (D.S.C. Mar. 30, 2021). Defendants argue that because Plaintiff has not forecasted evidence that could support a lack of probable cause, Defendants' summary judgment be granted as to the malicious prosecution claim [Doc. 46-1 at 20-21], and the Court agrees. See Parrott v. Plowden Motor Co., 143 S.E.2d 607, 608 (S.C. 1965) (holding that, to prevail on a malicious prosecution claim, a plaintiff must prove (1) the institution or continuation of original judicial proceedings; (2) by, or at the instance of, the defendant; (3) termination of such proceeding in plaintiff's favor; (4) malice in instituting such proceedings; (5) lack of probable cause, and (6) resulting injury or damage). Accordingly, the Court recommends that Defendants' summary judgment motion be granted as to the malicious prosecution claim.
Unlike with regard to the malicious prosecution claim, however, Defendants do not argue that they are entitled to summary judgment on Plaintiff's claims for gross negligence and violation of the South Carolina Constitution based on Plaintiff's failure to forecast evidence of a lack of probable cause. Rather, they argue that they are entitled to sovereign immunity on these claims because certain exceptions to the waiver of immunity under the South Carolina Tort Claims Act apply. [Doc. 46-1 at 19-20.] Given that this argument presents a question of state law, and one for which Defendants have offered no argument or citation, the Court recommends that the district court decline to exercise supplemental jurisdiction over these two claims and remand the case to state court. See Hayes v. Self-Help Credit Union, No. 1:13-cv-880, 2014 WL 4198412, at *2 (M.D. N.C. Aug. 22, 2014) (“It is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument.”).
Indeed, at least one part of Plaintiff's gross negligence claim concerns the amount of force Plaintiff was subjected to when he was arrested. [Doc. 1-1 ¶ 36(e).]
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' summary judgment motion [Doc. 46] be GRANTED as to Plaintiff's federal § 1983 claims, its Monell claim, and its state-law malicious prosecution claim and that the action be remanded to state court to address the remaining state law claims.
IT IS SO RECOMMENDED.