Opinion
C. A. 8:20-4296-MGL-PJG
12-09-2022
Alton Adams, Plaintiff, v. Doe No. 1, Publisher employee for Lexington Sheriff Dept.; John C. Perry; CPL Michael Raffield; CPL Clark, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Alton Adams, a self-represented litigant, filed this civil rights action pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act (“SCTCA”), SC Code Ann. §§ 15-78-10 et seq. The procedural history of this case is detailed in the court's previous Report and Recommendation. (ECF No. 132.) On July 12, 2022, the Honorable Mary Geiger Lewis dismissed the defendants' first motion for summary judgment without prejudice to refile it in light of the United States Supreme Court's recent opinion in Thompson v. Clark, 142 S.Ct. 1332 (2022). (ECF No. 142.) This matter is now 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 second motion for summary judgment filed by Defendants CPL Clark, John C. Perry, and Michael Raffield of the Saluda County Sheriff's Office. (ECF No. 154.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Adams of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motion. (ECF No. 155.) Adams filed a response in opposition to the motion. (ECF No. 167.) Having reviewed the record presented and the applicable law, including new evidence submitted by the defendants with their second motion for summary judgment, the court recommends that the defendants' motion be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. This case arises out of Adams's 2018 arrest by the Saluda County Sheriff's Office for possession of a firearm by a person convicted of a violent crime and some confusion about whether Adams was previously convicted of a “violent crime” under South Carolina law.
In 2003, Adams pled guilty in the Lexington County Court of General Sessions to strong arm robbery, SC Code Ann. § 16-11-325, and was sentenced to fifteen years' imprisonment suspended to five years' probation. (Answer, ECF No. 34-2 at 5.) In 2007, Adams was arrested for a probation violation, and the Lexington County Court of General Sessions revoked Adams's probation and ordered him to serve forty-two days of his original sentence.
Strong arm robbery (also known simply as “robbery”) is a lesser included offense of armed robbery. “Armed robbery occurs when a person commits robbery while either armed with a deadly weapon or alleging to be armed by the representation of a deadly weapon....Robbery is defined as the felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear.” State v. Moore, 649 S.E.2d 84, 88 (S.C. Ct. App. 2007) (internal quotations and citations omitted).
In his Amended Complaint, Adams claims that an employee of the Lexington County Sheriff's Department falsely reported to the South Carolina Law Enforcement Division (“SLED”) that Adams had a 2007 armed robbery conviction. (Am. Compl., ECF No. 14 at 6.) As proof of this claim, Adams provides a SLED report of his criminal history that lists a 2007 armed robbery charge, without listing a disposition for the charge. (Pl.'s Objections, ECF No. 66-3 at 4.) Adams also provides a letter SLED sent to him, which indicates that the 2007 armed robbery charge was reported to SLED from a fingerprint card sent by the Lexington County Detention Center. (Id. at 3.)
A search of the South Carolina Judicial Department's Public Index does not reveal a 2007 armed robbery charge in Lexington County. However, Adams was detained at the Lexington County Detention Center in 2007 following his arrest for a violation of the terms of his probation from his strong arm robbery conviction.
On December 9, 2018, Adams was arrested for multiple felonies in Saluda County as a result of an incident in which Adams purportedly kicked in a door to a home and held several victims at gunpoint for about two hours. Defendants Michael Raffield and Michael Clark of the Saluda County Sheriff's Office responded to the scene and were involved in the arrest and criminal investigation of Adams. That evening, Raffield prepared draft affidavits and warrant applications for a magistrate to view the following day. One of the warrant affidavits was for possession of a firearm by a person convicted of a violent crime in violation of S.C. Code Ann. § 16-23-500. (Pl.'s Resp. Ex. 1, ECF No. 105-2 at 1.) Raffield believed that he had probable cause to charge Plaintiff with possession of a firearm by a person convicted of a violent crime if Plaintiff had been convicted of the 2007 armed robbery charge. (Defs.' Mot. Summ. J. Ex. 1, Raffield Aff. ¶ 9, ECF No. 154-2 at 4-5.) Raffield sought further information about the 2007 charge by calling the Lexington County Sheriff's Office, but the records division was closed when he called. (Id. ¶ 10, ECF No. 154-2 at 5.)
The warrant affidavit drafted by Raffield stated, “Investigation revealed that the defendant had a prior conviction of (Armed Robbery) with an incident date of 08/31/2007.” (Raffield Aff., ECF No. 154-2 at 19) (parentheses in original). However, knowing that he had not yet confirmed the disposition of the 2007 charge, Raffield wrote a memorandum asking the magistrate to withhold action on the application until the Saluda County Sheriff's Office could confirm a conviction as to the 2007 armed robbery charge. (Id., ECF No. 154-2 at 20.) Raffield wrote in the memorandum that the National Crime Information Center (“NCIC”) report “showed an armed robbery” but without a “court conviction date.” (Id.) Raffield further wrote that the sheriff's office was “investigating,” and that Defendant Corporal Clark would inform the magistrate of the findings. (Id.) Finally, Raffield asked the magistrate to destroy the warrant affidavit if the armed robbery charge was dismissed or found to have been reduced. (Id.) Raffield also attached the memorandum to the draft affidavit along with the remaining paperwork to ensure it was reviewed by the officers on the day shift so that the proper disposition of the 2007 charge would be provided to the magistrate. (Raffield Aff. ¶ 10, ECF No. 154-2 at 5.)
The 2007 armed robbery conviction was material to the probable cause determination because an armed robbery conviction satisfies the “convicted of a violent crime” element of that offense. See S.C. Code Ann. § 16-23-500(A) (“It is unlawful for a person who has been convicted of a violent crime, as defined by Section 16-1-60, that is classified as a felony offense, to possess a firearm or ammunition within this State.”); S.C. Code Ann § 16-1-60 (“For purposes of definition under South Carolina law, a violent crime includes the offenses of: . . . armed robbery (Section 16-11-330(A)).” But Adams did not have a 2007 armed robbery conviction; he had a 2003 strong arm robbery conviction, and strong arm robbery in violation of S.C. Code Ann. § 16-11-325 is not a “violent crime” under S.C. Code Ann. § 16-1-60.
The next day, December 10, after Raffield and Clark had completed their shifts, a different sheriff's deputy appeared before a magistrate and submitted the warrant application and affidavit drafted by Raffield. For reasons that are not explained by the record, and despite the memorandum left by Raffield expressly stating that the warrant application for possession of a firearm by a person convicted of a violent crime should not be sought unless the sheriff's deputies could confirm that Adams was convicted of the 2007 armed robbery charge, the magistrate issued the arrest warrant, along with arrest warrants for six other charges. (Raffield Aff. ¶¶ 16-17, ECF No. 154-2 at 7-8.) Adams's charge for possession of a firearm by a person convicted of a violent crime was dismissed at a preliminary hearing on January 25, 2019. Adams later pled guilty to the other 2018 charges.
Adams claims that had Raffield or Clark performed a proper investigation, the SLED or NCIC report would have revealed that the armed robbery charge did not include a conviction date, and therefore, their prosecution of him for possession of a firearm by a person convicted of a violent crime was unreasonable. (Am. Compl., ECF No. 14 at 6-9.) Adams also claims he was denied bond at the preliminary hearing because of the belief that he had an armed robbery conviction. (Pl.'s Resp., ECF No. 105 at 3-5.) Adams further claims that as a result of his classification as an armed robber, once Adams was sentenced to a term of imprisonment at the South Carolina Department of Corrections (“SCDC”), he was given a more severe security classification than he deserved, which further led to Adams being attacked by another inmate. (Am. Compl., ECF No. 14 at 17-19.)
Adams brings this action for damages and injunctive relief pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act, SC Code Ann. §§ 15-78-10 et seq. Adams lists causes of action for unreasonable search and seizure and unreasonable prosecution in violation of the Fourth Amendment, deprivation of due process in violation of the Fifth and Fourteenth Amendments, excessive bail in violation of the Eighth Amendment, and lack of access to the courts and retaliation in violation of the First Amendment. (Id. at 4-5.) Adams also lists tort causes of action for defamation, intentional infliction of emotional distress, fraud, fraud on the court, and malicious prosecution. (Id. at 5.) Pertinent to the instant motion, in the order authorizing service, the court construed the Amended Complaint as asserting claims pursuant to 42 U.S.C. § 1983 against Raffield and Clark for malicious prosecution in violation of the Fourth Amendment, as well as state law claims of defamation and malicious prosecution. The court also construed claims pursuant to the South Carolina Tort Claims Act against Sheriff Perry of defamation and malicious prosecution. No party challenged the court's construction of Adams's claims. (Order, ECF No. 35 at 1) (“If any party disagrees with the court's construction of the Plaintiff's claims, he or she may file an appropriate motion with the court within seven (7) days from the date of this order.”).
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 Defendants' Motion
1. Malicious Prosecution Claim Pursuant to 42 U.S.C. § 1983
Adams bring this action pursuant to 42 U.S.C. § 1983, which “ ‘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)). To state a claim under § 1983, a plaintiff 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, Adams raises a malicious prosecution claim under the Fourth Amendment. Adams argues that the defendants lacked probable cause to charge him with possession of a firearm by a person convicted of a violent crime because he did not have an armed robbery conviction, and his strong arm robbery conviction was insufficient for the charge. Specifically, Adams argues that the warrant affidavit from Raffield relied on the false statement that Adams had an armed robbery conviction to establish probable cause.
“Allegations that an arrest made pursuant to a warrant was not supported by probable cause, or claims seeking damages for the period after legal process issued-e.g., post-indictment or arraignment-are considered a § 1983 malicious prosecution claim.” Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017) (quoting Brooks v. City of Winston-Salem, 85 F.3d 178, 182 (4th Cir. 1996)) (internal quotation marks and alteration omitted); see also Thompson v. Clark, 142 S.Ct. 1332, 1337 (2022). “A malicious prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)) (internal quotation marks omitted). To state a constitutional claim for malicious prosecution, “a plaintiff must allege 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.” Id. (citing Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)).
Generally, an officer may give deference to a magistrate's determination of probable cause. See United States v. Leon, 468 U.S. 897, 914 (1984); Smith v. Munday, 848 F.3d 248, 255 (4th Cir. 2017). Therefore, to establish a malicious prosecution claim after a warrant is issued, the plaintiff must show that the officer deliberately or with reckless disregard for the truth made material false statements in the warrant application, Humbert, 866 F.3d at 556 (quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)), or that the officer intentionally or with reckless disregard made the application misleading by omitting material facts, id. (quoting United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)). A reckless disregard can be shown by evidence that an officer acted with a high degree of awareness of a statement's probable falsity such that when viewing all the evidence, the officer must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported. Miller v. Prince George's Cnty., Md., 475 F.3d 621, 627 (4th Cir. 2007). However, an officer's mere negligence or innocent mistake in making a false statement in a warrant affidavit will not provide a basis for a constitutional violation. Id. at 627-28 (quoting Franks, 438 U.S. at 171). A fact is material if it necessary to the magistrate's finding of probable cause. Humbert, 866 F.3d at 556; Miller, 475 F.3d at 628.
Here, the undisputed facts in the record show that Raffield did not deliberately, or with reckless disregard for the truth, make false statements in the warrant application or omit material facts. Quite the opposite, Raffield took steps to ensure that Adams would not be charged with possession of a firearm by a person convicted of a violent crime unless the deputies could confirm that Adams had a conviction for his 2007 armed robbery charge. Raffield contacted the Lexington County Sheriff's Department to determine whether Adams was convicted of the charge. He also wrote a memorandum for the magistrate and other deputies that warned that the warrant should not be issued without confirmation about the disposition of the charge. While the warrant was issued the next day anyway, the record with Raffield's additional affidavit shows that he did not present the warrant request to the magistrate with unconfirmed material facts; rather, the unrefuted evidence is that he exercised caution and sought to prevent the issuance of the warrant without further investigation, and included all of the material facts the other deputies would have needed to properly complete the investigation. Adams offers no evidence to the contrary. Consequently, Adams fails to put forth evidence that could support his claim that Raffield violated his Fourth Amendment rights by drafting the warrant application and presenting it to the magistrate with unconfirmed material facts.
The defendants do not appear to argue that summary judgment should be granted specifically to Clark on any basis that is distinct from their arguments about Raffield. However, the record plainly shows that no reasonable jury could conclude that Clark caused a violation of Adams's rights. There is no evidence in this record that Clark had any role in drafting the warrant affidavit or that he made materially false statements or omitted material statements in front of the magistrate. See Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution). Consequently, Clark is entitled to summary judgment on Adams's § 1983 malicious prosecution claim.
2. Claims Pursuant to the South Carolina Tort Claims Act
a. Immunity
The defendants argue that Adams's state law claims must be brought against Sheriff Perry in his official capacity pursuant to the South Carolina Tort Claims Act, and that Sheriff Perry is immune from such claims in federal court. The South Carolina Tort Claims Act provides, “This chapter constitutes the exclusive remedy for any tort committed by an employee of a governmental entity. An employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except as expressly provided for in subsection (b).” S.C. Code Ann. § 15-78-70(a). The Act further provides that, even if the employee is named in the action brought under the Act, the agency or political subdivision for which the employee was acting must be substituted as the party defendant. S.C. Code Ann. § 15-78-70(c). However, subsection (b) of that section provides, “Nothing in this chapter may be construed to give an employee of a governmental entity immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted . . . actual malice[.]” S.C. Code Ann. § 15-78-70(b).
Moreover, under the South Carolina Tort Claims Act, the State expressly consents to suit only in South Carolina state courts and does not consent to suit in a federal court or in a court of another state. S.C. Code Ann. § 15-78-20(e); see also Pennhurst State Sch., 465 U.S. at n.9 (1984) (recognizing that a state must expressly consent to suit in a federal district court). Therefore, any tort claim that must be brought pursuant to § 15-78-70(a) cannot be brought originally in federal court and must be dismissed. See, e.g., Gaskins v. South Carolina, C/A No. 8:15-4456-JMC-JDA, 2016 WL 8677201, at *3 (D.S.C. Jan. 8, 2016) (observing that a claim sought to be filed initially in federal court under the South Carolina Tort Claims Act “is not permitted in this federal court because of the Eleventh Amendment”), adopted by 2016 WL 3207855 (D.S.C. June 10, 2016); cf. Lapides v. Bd. of Regents, 535 U.S. 613, 622 (2002) (holding that a State that voluntarily invokes the jurisdiction of the federal court by removing a case waives immunity for claims in which it has consented to suit in its own courts).
The defendants' assertion of immunity deprives the court of jurisdiction over the South Carolina Tort Claims Act claims. See Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (“[S]overeign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.”) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). Consequently, the defendants are entitled to dismissal of the claims rather than a judgment on the merits of the claims. See generally 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1369 (3d ed. April 2021).
Here, Adams's state law malicious prosecution claims must be brought pursuant to the Act, and therefore, they should be dismissed. The defendants' actions forming the basis of Adams's claims occurred in the defendants' official duties as Saluda County sheriff's deputies. Also, none of the exceptions listed in § 15-78-70(b) applies to a malicious prosecution claim. See, e.g., McBride v. Sch. Dist. of Greenville Cty., 698 S.E.2d 845, 855 (S.C. Ct. App. 2010) (finding a malicious prosecution claim was not covered by the “actual malice” provision of § 15-78-70(b)). Therefore, Adams's malicious prosecution claims against Raffield and Clark must be dismissed. Similarly, Adams's defamation claims, assuming they do not require a showing of ill will, intent to injure, or recklessness, must be brought pursuant to the South Carolina Tort Claims Act. See Pettigrew v. S.C. Dep't of Mental Health, C/A No. 3:21-2488-MGL-PJG, 2022 WL 410070 (D.S.C. Jan. 26, 2022) (explaining that an actionable defamation claim can be based on behavior that does not rise to the level of “malice in fact;” if it does, the claim must be brought pursuant to the Act, and if it does not, the claim falls within the actual malice exception in § 15-78-70(b)), report and recommendation adopted, C/A No. 3:21-02488-MGL, 2022 WL 407421 (D.S.C. Feb. 10, 2022). Accordingly, to the extent Adams's defamation claims do not require a showing of malice in fact, they must be dismissed.
b. State Law Claims Against Defendants Raffield and Clark
To the extent Adams's defamation claims fall within the actual malice exception to the South Carolina Tort Claims Act (“SCTCA”) and can therefore be brought against Raffield and Clark in their individual capacities, the defendants argue they are entitled to summary judgment.
For the reasons stated as to Adams's § 1983 malicious prosecution claim, Adams fails to point to any evidence that Clark was involved in the warrant application. Therefore, to the extent Adams's defamation claim against Clark requires a showing of actual malice, Clark is entitled to summary judgment.
i. Timeliness
The defendants argue that Adams's defamation claim is untimely. Under South Carolina law, the statute of limitations for a defamation claim is two years from the date the cause of action accrued. S.C. Code Ann. § 15-3-550. A defamation cause of action accrues on the date the defamatory statement is made. Harris v. Tietex Int'l Ltd., 790 S.E.2d 411, 416 (S.C. Ct. App. 2016) (citing Jones v. City of Folly Beach, 483 S.E.2d 770, 775 (S.C. Ct. App. 1997)). Here, the purported defamatory statement was published when the warrant application was submitted on December 10, 2018 and Adams filed this action on December 10, 2020. Therefore, Adams's defamation claim was filed within the two-year limitations period for defamation claims under South Carolina law, and the defendants have failed to show that they are entitled to summary judgment based on untimeliness.
ii. Qualified Privilege
The defendants also argue that any statements they made in the warrant application that Adams had an armed robbery conviction were qualifiedly privileged. To establish a defamation claim under South Carolina law, the plaintiff must show: “(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Fountain v. First Reliance Bank, 730 S.E.2d 305, 309 (S.C. 2012) (quoting Erickson v. Jones St. Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006)). As to the second element, a qualified or conditional privilege is an affirmative defense to a defamation claim. “A communication made in good faith on any subject matter in which the person communicating has an interest or duty is qualifiedly privileged if made to a person with a corresponding interest or duty even though it contains matter which, without this privilege, would be actionable.” Murray v. Holnam, Inc., 542 S.E.2d 743, 749 (S.C. Ct. App. 2001) (citing Constant v. Spartanburg Steel Prod., Inc., 447 S.E.2d 194, 196 (S.C. 1994)). However, the privilege is “abused” (and therefore lost) if the statement is made in good faith but goes beyond the scope of what is reasonable under the speaker's duties and interests or if the statement is made with actual malice. Fountain, 730 S.E.2d at 310; Murray, 542 S.E.2d at 750.
Here, Raffield's statements in support of an arrest warrant application are qualifiedly privileged under South Carolina law, which rebuts any inference of malice from the statement's being one accusing someone of a crime. See Bell v. Bank of Abbeville, 38 S.E.2d 641, 643 (S.C. 1946). In Bell, the court stated,
The protection of privilege extends generally to remarks made in the prosecution of an inquiry regarding a crime which has been committed; and for the purpose of detecting and bringing the criminal to punishment. Whether the communications in the case at bar were so made as to bring them within the protection of that privilege, will depend upon the establishment of the essential facts at the trial.
Ordinarily, proof of a defamatory publication, charging another with the commission of a crime, makes out a prima facie case of malice in the author. But a privileged communication is an exception to the rule. In such case the presumption of malice is rebutted. The effect is to cast upon the plaintiff the necessity of showing malice in fact-that is, that the defendant was actuated by ill will in what he did and said, with the design to causelessly and wantonly injure the plaintiff. This actual malice, resting as it must upon the slanderous matter itself, and the surrounding circumstances tending to prove fact and motive, is a question to be determined by the jury.Bell, 38 S.E.2d at 643 (internal citations omitted). However, where there is an absence of a dispute of fact as to actual malice, the question may be resolved by the court. Fountain, 730 S.E.2d at 310 (citing Woodward v. S.C. Farm Bureau Ins. Co., 282 S.E.2d 599, 601 (S.C. 1981)).
Here, as previously explained, no reasonable jury could conclude on this record that Raffield acted with actual malice in drafting the warrant application. See Bell, 38 S.E.2d at 495; see also Fountain, 730 S.E.2d at 310 (stating that an abuse of the privilege occurs when a statement is made in reckless disregard of the victim's rights); Murray, 542 S.E.2d at 750-51 (defining actual malice, as a defense to qualified privilege, as having acted “with ill will toward the plaintiff or acted recklessly or wantonly, meaning with conscious indifference toward the plaintiff's rights”). As previously explained, the record indisputably shows that Raffield took steps to ensure that Adams would not be charged with possession of a firearm by a person convicted of a violent crime unless the deputies could confirm that Adams had a conviction for his 2007 armed robbery charge. Similarly, the record permits only the conclusion that Raffield exercised caution and sought to prevent the issuance of the warrant without further investigation, and included all of the material facts the other deputies would have needed to properly complete the investigation. Adams offers no evidence from which a jury could reasonably conclude otherwise. Thus, Adams fails to rebut the application of the privilege. See Harkness v. City of Anderson, S.C., C/A No. 8:05-1019-HMH, 2005 WL 2777574, at *5 (D.S.C. Oct. 25, 2005) (granting summary judgment to the defendant where the evidence did not create a question of fact sufficient to rebut the presumption of privilege); see also Webb v. Lott, C/A No. 3:19-2031-JMC-SVH, 2020 WL 11613552, at *18 (D.S.C. Dec. 16, 2020) (same), report and recommendation adopted, 2021 WL 4026058 (D.S.C. Sept. 3, 2021). Consequently, Raffield is entitled to summary judgment as to Adams's defamation claim.
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motion for summary judgment be granted as to Adams's § 1983 malicious prosecution claim and state law defamation claim (to the extent it is based on actual malice) against Raffield and Clark. Because the court lacks subject matter jurisdiction over Adams's state law malicious prosecution and defamation claims that must be brought pursuant to the SCTCA against Perry, those claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).
If the court's recommendations are adopted, and pursuant to the assigned district judge's prior order, Adams's state law defamation claim against Defendant Doe No. 1 would remain before the court. However, Doe No. 1 has not been served with process (ECF No. 31), and the time to do so is well past. Therefore, Doe No. 1 should be dismissed pursuant to Federal Rule of Civil Procedure 4(m).
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).