Opinion
Civil Action 4:20-cv-3818-JD-TER
08-25-2021
CURTIS RICHARDSON, #269166, a/k/a Curtis D. Richardson, a/k/a Curtis Dale Richardson, and SYBIL McNEIL, Plaintiffs, v. MICHAEL McMILLIAN, U.S. Probation Officer, BRIAN JOHNSON, U.S. Probation Officer, LORIS POLICE CHIEF, a/k/a Gary Buley, and LT. ROBINSON, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This action was filed by two pro se individuals, alleging unrelated violations of their constitutional rights. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This Report and Recommendation is entered for review by the district judge. A separate Report and Recommendation (ECF No. 21) is currently pending recommending that the claims asserted by Richardson against Defendants McMillian and Johnson be summarily dismissed without issuance and service of process. Service of the Amended Complaint was authorized as to the claims asserted by McNeil against Defendants Loris Police Chief and Robinson. Serve Order (ECF No. 19). Presently before the Court is Defendants Loris Police Chief's and Robinson's Motion for Summary Judgment (ECF No. 39). Because Plaintiff McNeil is proceeding pro se, she was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in dismissal of her Complaint.
II. DISCUSSION
A. Plaintiff Richardson's Representation of Plaintiff McNeil
On June 25, 2021, a Motion for Extension of Time (ECF No. 46) to respond to the Motion for Summary Judgment was filed, containing signatures of both Plaintiffs. The motion explained why Plaintiff Richardson was unable to respond to the Motion for Summary Judgment, but made no mention of Plaintiff McNeil or why she was unable to timely respond. The undersigned entered a text order explaining that the Motion for Summary Judgment was filed only as to the claims asserted by Plaintiff McNeil and Plaintiff McNeil had failed to show why she was unable to timely respond to the motion. Text Order (ECF No. 49). Out of an abundance of caution, the undersigned allowed Plaintiff McNeil specifically an additional ten days to file a response to the Motion for Summary Judgment. Id. Plaintiff McNeil was warned that a failure to do so may result in a recommendation that her claims be dismissed. Id.
Thereafter, a Response (ECF No. 52) in opposition to the Motion for Summary Judgment was filed by Plaintiff Richardson. Richardson asserted that he was responding on behalf of “Plaintiff Sybil McNeil-Richardson” as her husband and with her consent because she suffers from a mental disorder and a lack of education that prevents her from being able to respond in this matter. However, “[t]he right to litigate for oneself . . . does not create a coordinate right to litigate for others.” Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005); see also Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“[T]he competence of a layman representing himself [is] clearly too limited to allow him to risk the rights of others.”). Thus, Plaintiff Richardson cannot represent Plaintiff McNeil regardless of whether she is his wife or he has her consent. “An individual who is not an attorney cannot represent his or her spouse.” Crawford v. Shamrock Coal Co., 861 F.2d 720 (Table) (6th Cir. 1988); see also Mitchell v. SunTrust Mortgage, Inc., No. 1:13-cv-2579-RLV-AJB, 2014 WL 12859898, *3 n.7 (N.D.Ga. Feb. 3, 2014) (“[T]o the extent that Plaintiff intends to bring this suit on behalf of others, including the United States of America or his spouse, Plaintiff is advised that he may not do so as a pro se plaintiff because 28 U.S.C. § 1654 precludes a non-attorney from representing another.”); cf. Osei-Afriyie v. Medical College of Pa., 937 F.2d 876, 882-83 (3d Cir.1991) (parents cannot proceed on behalf of their pro se children). Even if Plaintiff Richardson held a power of attorney for Plaintiff McNeil, which he has not asserted or shown, he has no authority to represent her without the aid of counsel. See, e.g., Reeder v. Knapik, No. CIV.07-CV-362-L(LSP), 2007 WL 925760, at *1 (S.D. Cal. Feb. 28, 2007). Accordingly, Plaintiff Richardson may not file anything in this action on behalf of, or otherwise attempt to represent, Plaintiff McNeil. Therefore, the Response (ECF No. 52) filed by Plaintiff Richardson on behalf of Plaintiff McNeil is stricken from the record. Defendants' Motion to Strike is granted in a text order filed herewith.
B. Facts
Plaintiff alleges that she notified Loris Police Officer Robinson that she had been raped and Officer Robinson took her to the hospital where medical staff determined that she had been raped. Officer Robinson was then instructed by the Chief of Police to take Plaintiff to the detention center. She was then charged with giving false information to a police officer but the charge was dropped. Am. Compl. p. 14 (ECF No. 9).
The evidence in the record reveals that on July 27, 2020, City of Loris Police Department Officer Bobby Brush was dispatched to interview Plaintiff relating to an incident that had allegedly occurred at 3410 Church Street, Loris, South Carolina. Brush Aff. ¶ 3 (ECF No. 39-9). During the investigation, Plaintiff stated to Officer Brush that she had been raped. Brush Aff. ¶ 4. Plaintiff also prepared and signed a written statement to that effect. Brush Aff. ¶ 4; Pl. Statement of July 27, 2020, 11:00 a.m. (ECF No. 39-3). Officer Brush inquired whether the Plaintiff wished to be transported to the hospital for a “rape kit” to be performed and the Plaintiff agreed. Brush Aff. ¶ 5. As part of Plaintiff's signed statement, Plaintiff was informed that the information being furnished was true and correct and that giving false information could result in her arrest and/or criminal prosecution. Brush Aff. ¶ 6; Pl. Statement of July 27, 2020, 11:00 a.m. Plaintiff was then transported by Officer Brush to the hospital. Brush Aff. ¶ 7.
Due to the seriousness of Plaintiff's allegations, Officer Brush informed his supervisor, City of Loris Police Department Lt. Larry Williams of Plaintiff's complaints and Lt. Williams offered his assistance. Brush Aff. ¶ 8. Defendants Lt. Robinson and Defendant Police Chief Gary Buley were never involved in the investigation, arrest, or prosecution of Plaintiff. Brush Aff. ¶ 9; Williams Aff. ¶ 16 (ECF No. 39-10); Buley Aff. ¶ 5 (ECF No. 39-11).
Lt. Williams began the investigation by asking Plaintiff general questions to establish a timeline of events leading up to the alleged rape. Williams Aff. ¶ 8; Lt. Williams Report of Investigation (ECF No. 39-5). As the questions continued, Plaintiff's responses began to change slightly. Williams Aff. ¶ 8; Lt. Williams Report of Investigation. During the course of the investigation, Plaintiff ultimately admitted to both Officer Brush and Lt. Williams that she had made the story up and had not been raped at all. Brush Aff. ¶ 10; Williams Aff. ¶ 16. Plaintiff prepared and signed a written statement indicating that she agreed to have consensual sex with Mr. Gerald, in exchange for crack cocaine, but later reported him for rape because he never gave her the crack cocaine. Brush Aff. ¶ 11; Williams Aff. ¶ 17; Pl. Statement of July 27, 2020, 4:05 p.m.
Plaintiff was taken into custody by Officer Brush to the J. Ruben Long Detention Center in Horry County on a “hold, ” where she remained until an arrest warrant could be obtained. Brush Aff. ¶ 13. Plaintiff was thereafter arrested pursuant to an arrest warrant signed by a Magistrate Judge. Brush Aff. ¶ 14; Williams Aff. ¶ 20; Arrest Warrant (ECF No. 39-2).
The decision to prosecute and/or to dismiss Plaintiff's criminal charge for filing a false police report was made solely by a Solicitor for the County of Horry, State of South Carolina, and not by either Officer Brush, Lt. Williams, Defendant Police Chief Buley, or Defendant Lt. Robinson. Brush Aff. ¶ 15; Williams Aff. ¶ 22; Buley Aff. ¶ 6.
On or about November 19, 2020, Plaintiff pled guilty to a single charge of financial transaction card fraud and her remaining and pending charges, including filing a false police report of a felony violation, were dismissed. Brush Aff. ¶ 13; Buley Aff. ¶ 11; Williams Aff. ¶ 25; Letter from Solicitor dated November 18, 2020 (ECF No. 39-6). Specifically, Plaintiff's criminal charge of filing a false police report of a felony violation was dismissed and/or nolle prossed pursuant to the terms of a negotiated plea agreement in which the Plaintiff agreed to plead guilty to another criminal charge in exchange for the dismissal of multiple then pending criminal charges. Brush Aff. ¶ 13; Buley Aff. ¶ 11; Williams Aff. ¶ 25; Letter from Solicitor dated November 18, 2020.
C. Standard of Review
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “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.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
D. Discussion
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, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal 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, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
Plaintiff McNeil alleges that she was unlawfully arrested and detained without an arrest warrant. “[A] public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant.” Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998)(internal citations omitted). The Fourth Circuit reiterated that “a false arrest claim must fail where it is made pursuant to a facially valid warrant.” Dorn v. Town of Prosperity, 375 Fed.Appx. 284, 286 (4th Cir. 2010). Here, as set forth above, Plaintiff McNeil's arrest was made pursuant to a facially valid arrest warrant and, thus, Plaintiff's false arrest claim fails.
A malicious prosecution claim arises when a defendant was wrongfully detained because his arrest was made pursuant to a warrant that was not supported by probable cause. Porterfield, 156 F.3d at 568; see also Wallace v. Kato, 549 U.S. 384, 389-90 (2007). To state a malicious prosecution claim, Plaintiff must show at least, that “defendant[s] have seized [plaintiff] pursuant to legal process that was not supported by probable cause and that the criminal proceedings [have] terminated in [plaintiff's] favor.” Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)(internal citations and quotations omitted). Probable cause exists if the “facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person... in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). In this case, Plaintiff McNeil reported to Officer Brush that she had been raped by Terry Gerald, signed a written statement to that effect, and agreed to have a rape kit performed at the hospital. She later admitted to Officer Brush and Lt. Williams that she had consensual sexual relations with Mr. Gerald in exchange for crack cocaine and was not raped by him. Though the written statement by Plaintiff admitting that she had not been raped is not abundantly clear, it is undisputed in the record that she recanted her original report of rape. South Carolina Code Ann. § 16-17-222(A) states that it is unlawful for a person to knowingly file a false police report, and subsection (B) provides that a person who violates subsection (A) by falsely reporting a felony is guilty of a felony. Plaintiff's admission that she was not raped as she previously reported to Officer Brush and Lt. Williams is sufficient to establish probable cause for the charge of filing a false police report.
In addition, Plaintiff cannot show that criminal proceedings terminated in her favor. Criminal proceedings have terminated in the plaintiff's favor when the “criminal case against the plaintiff has been disposed of in a way that indicates the plaintiff's innocence.” Snider v. Seung Lee, 584 F.3d 193, 202 (4th Cir. 2009). When charges are dismissed at the prosecution's request-or nolle prosequi-courts “have imposed upon malicious prosecution plaintiffs the affirmative burden of proving that the nolle prosequi was entered under circumstances which imply or are consistent with innocence of the accused.” Nicholas v. Wal-Mart Stores, Inc., 33 Fed.Appx. 61, 65 (4th Cir. 2002). The record reflects that the charge against Plaintiff for False Report of a Felony was dismissed because Plaintiff pled guilty to other charges. Generally, a dismissal of charges based upon the entry of a guilty plea on other charges is not a favorable termination under South Carolina law. See Campbell v. Smith, No. 9:08-4078 DCN, 2009 WL 3739351, at *6 (D.S.C. Nov. 4, 2009) (citing McKenney v. Jack Eckerd Co., 304 S.C. 21, 402 S.E.2d 887-888 (S.C.1991); State v. Gaskins, 263 S.C. 343, 210 S.E.2d 590, 592 (S.C.1974)). Plaintiff has failed to show that the dismissal of the false report charge was entered under circumstances consistent with innocence. Therefore, Plaintiff's malicious prosecution claim fails.
Further, as set forth above, the only individuals involved in the investigation into Plaintiff's original report of rape and the subsequent charge of filing a false police report were Officer Brush and Lt. Williams. No. officer named Lt. Robinson was involved in the incident upon which Plaintiff's claims are based. In fact, a “Lt. Robinson” has never been employed by the City of Loris Police Department at any time relevant to the claims in this action. Williams Aff. ¶ 6; Buley Aff, ¶ 7. Loris Police Chief Gary Buley also had no involvement in the claims alleged in this case. Vicarious liability or respondeat superior is generally not available to a § 1983 plaintiff as a method to create liability of a state-actor supervisor for the acts of his subordinate. Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition as long as the facts alleged meet the Fourth Circuit Court of Appeal's three-part test for supervisor liability under § 1983: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted). The evidence in the record is insufficient to show that any of Chief Buley's subordinates were engaged in conduct that posed a pervasive and unreasonable risk of a constitutional injury. Thus, Chief Burley cannot be liable under a supervisory liability theory.
Because Plaintiff McNeil fails to present sufficient evidence to create a genuine dispute of fact as to either a false arrest or malicious prosecution claim, summary judgment is appropriate.
III. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 39) be granted and this case be dismissed in its entirety.
The parties are directed to the important information on the attached page.