Opinion
C. A. 3:19-2491-JMC-PJG
09-27-2021
Kewon English and Earl Powell, Plaintiffs, v. Joseph Clarke, Leon Lott, in his official capacity as Sheriff of Richland County, and Richland County Sheriff's Department, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiffs Kewon English and Earl Powell, through counsel, filed this civil rights action. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motion for summary judgment. (ECF No. 43.) The plaintiffs filed a response in opposition (ECF No. 49), and the defendants filed a reply (ECF No. 55). Having reviewed the record presented and the applicable law, the court concludes that the defendants' motion should be granted in part and denied in part.
BACKGROUND
This matter arises out of the plaintiffs' arrests for criminal sexual conduct (first degree) and burglary (first degree) between August 5, 2015 and August 6, 2015 by Richland County Sheriff's Deputy Joseph Clarke, as well as the plaintiffs' subsequent indictments for these crimes plus kidnapping and armed robbery. The parties provide substantially different accounts of the circumstances of the arrests through affidavit and deposition testimony supporting their positions. Where disputed, the facts are taken in the light most favorable to the plaintiffs, to the extent they find support in the record.
On September 3, 2019, the plaintiffs filed this action raising causes of action under 42 U.S.C. § 1983 alleging that all defendants violated their First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Underpinning these claims are allegations that between August 5 and 6, 2015, Defendant Clarke obtained coerced and false statements from the plaintiffs confessing to the crimes and falsely arrested the plaintiffs. The plaintiffs further allege that DNA results received in May 2016 exonerated them; however, Defendant Clarke continued to prosecute the plaintiffs for an additional six months. The charges against the plaintiffs were ultimately dismissed in December 2016. The plaintiffs further contend that the defendants violated the plaintiffs' rights to be free from state-compelled speech, denied their right to counsel during their interrogations, and violated their equal protection rights. As to the Sheriff and the Richland County Sheriff's Department (“RCSD”), the plaintiffs allege pursuant to Monell that there was a custom, policy, and practice of targeting suspected minority gang members to put them in prison; covering up misconduct and retaining officers despite misconduct; and failing to record interviews.
The plaintiffs have not responded in opposition to the defendants' motion for summary judgment as to any claim pertaining to the Sixth Amendment. Therefore, the court finds any such claim abandoned by the plaintiffs. Cf. Coker v. Int'l Paper Co., C/A No. 2:08-1865-DCN-BM, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (“[P]laintiff can abandon claims by failing to address them in response to a summary judgment motion.”).
Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
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 non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving 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.
B. Defendants' Motion
1. Statute of Limitations
The defendants first assert that Plaintiff Powell's federal claims (except his claim for malicious prosecution) are barred by the statute of limitations. The applicable statute of limitations for a § 1983 claim arising in South Carolina is three years. See Owens v. Okure, 488 U.S. 235 (1989); Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014) (“[T]o determine the timely filing of a § 1983 claim, courts borrow the statute of limitations from the most analogous state-law cause of action. For § 1983 suits, that cause of action is a personal- injury suit.”) (internal citations omitted); Brannon v. Blanton, C/A No. 9:15-2434-CMC, 2016 WL 4232886, at *2 (D.S.C. Aug. 11, 2016) (“[T]he statute of limitations for § 1983 claims arising in South Carolina is three years, regardless of the underlying allegations of the § 1983 claim.”); see also S.C. Code Ann. § 15-3-530(5). A § 1983 cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995); see also Wallace v. Kato, 549 U.S. 384 (2007) (providing that the accrual date of a § 1983 cause of action is a question of federal law).
Powell filed this action on September 3, 2019. Consequently, Powell's claims that accrued when he was arrested-which at the latest occurred on August 6, 2015-are barred by the statute of limitations. The claims that accrued on the date of the arrest include his (1) Fourth Amendment claim of false arrest, (2) First Amendment Claim to be free from state-compelled speech in signing the confession on August 5/6, 2015, (3) Fifth Amendment claim alleging he was denied his right to counsel during his interrogation on August 5/6, 2015, and (4) Fourteenth Amendment claim that his equal protection rights were violated by his arrest. See, e.g., Smith v. McCarthy, 349 Fed.Appx. 851, 857 (4th Cir. 2009) (finding the district court properly dismissed the plaintiff's claims of excessive force, violation of due process, illegal entry on property, illegal search and seizure, etc. as untimely because they accrued on the date of arrest); Harrison v. Sumter Cty. Sheriff's Dep't, C/A No. 3:17-3442-RMG-BM, 2018 WL 1225207, at *3 (D.S.C. Feb. 15, 2018) (collecting cases), adopted by, No. 3:17-CV-03442, 2018 WL 1225108 (D.S.C. Mar. 7, 2018).
Powell concedes that his federal lawsuit was filed more than three years after his arrest; however, Powell argues that the limitations period should be extended based on equitable tolling, fraudulent concealment, and the continuing tort rule. Although Powell expressly invokes the principal of equitable tolling, his first argument is actually based on his contention that the defendants should be equitably estopped from asserting a statute of limitations defense. The rules for estoppel of the statute of limitations in actions brought under § 1983 are borrowed from state law. Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478, 484-86 (1980). In South Carolina, “[a] defendant may be estopped from claiming the statute of limitations as a defense if the delay that otherwise would give operation to the statute had been induced by the defendant's conduct.” Wiggins v. Edwards, 442 S.E.2d 169, 171 (S.C. 1994) (citation and internal quotation marks omitted). “This may consist of an express representation that the claim will be settled without litigation or conduct that suggests a lawsuit is not necessary.” Id. As Powell argues, it may also arise through silence that is intended or has the effect of misleading a party. Hedgepath v. Am. Tel. & Tel. Co., 559 S.E.2d 327, 339 (S.C. Ct. App. 2001). However, Powell's conclusory argument that the defendants withheld information to induce his arrest and confession is insufficient to demonstrate that Powell was misled into failing to timely file the above claims.
Although generally the issue of equitable estoppel is a jury question, “where the record contains no evidence on the defendant's part warranting estoppel, summary judgment is proper.” Vines v. Self Mem'l Hosp., 443 S.E.2d 909, 911 (S.C. 1994). Further, there is no support in the record that the defendants' actions concealed from Powell that he had a claim for false arrest or any of the above alleged claims stemming from the time of his arrest. Cf. Doe v. Bishop of Charleston, 754 S.E.2d 494, 500-01 (S.C. 2014) (“Deliberate acts of deception by a defendant calculated to conceal from a potential plaintiff that he has a cause of action toll the statute of limitations.”). Finally, these claims occurred at the time of Powell's arrest; his argument that the continuous tort rule should apply to these claims is not only unsupported but is contrary to the case law cited above. Certainly, Powell would know at the time of the events that he was falsely arrested, signed an inaccurate confession, or was denied counsel. Accordingly, Powell's claims that accrued on the date of his arrest are untimely.
The parties do not dispute that Powell's Fourth Amendment claims for malicious prosecution were timely filed. See Owens v. Baltimore City State's Attorneys Office, 767 F.3d at 390 (“[T]he limitations period for a plaintiff's malicious prosecution claim commences when the proceedings brought against him are resolved in his favor.”); see also Wallace, 549 U.S. at 392-93. Moreover, even if Powell's First, Fifth, and Fourteenth Amendment claims were timely filed, the defendants would nonetheless be entitled to summary judgment for the same reasons discussed below.
2. Defendants Richland County Sheriff's Department and Sheriff of Richland County
The Richland County Sheriff's Department is not an entity that is amenable to suit because it is not an individual or a corporate or political entity. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (noting that for purposes of § 1983 a “person” includes individuals and “bodies politic and corporate”); see, e.g., Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (“The medical department of a prison may not be sued, because it is not a person within the meaning of § 1983.”). As pointed out by the defendants, the proper entity to be sued would be the Richland County Sheriff, whom the plaintiffs have also sued in his official capacity. (See Defs.' Mem. Supp. Summ. J. at 7 n.1, ECF No. 43-1 at 7.)
However, while the Sheriff of Richland County is generally amenable to suit, he is immune from the plaintiffs' claims for damages. In South Carolina, sheriffs are agents of the state. See Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988) (concluding that sheriffs and deputy sheriffs are agents of the state and cannot be sued in their official capacities), aff'd, 878 F.2d 379 (4th Cir. 1989) (table); Edwards v. Lexington Cty. Sheriff's Dep't, 688 S.E.2d 125, 127 n.1 (S.C. 2010) (“However, under South Carolina law, the sheriff and sheriff's deputies are State, not county, employees.”). And the Eleventh Amendment bars suits by citizens against non-consenting states brought either in state or federal court. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). Such immunity extends to arms of the state, including a state's agencies, instrumentalities, and officials. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). While sovereign immunity does not bar suit where a state has given consent to be sued, or where Congress abrogates the sovereign immunity of a state, neither of those exceptions applies in the instant case.
Congress has not abrogated the states' sovereign immunity under § 1983, see 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).
Although the plaintiffs attempt to distinguish the Richland County Sheriff's Department from this long line of established precedent in South Carolina by pointing out that this department is self-insured, their arguments are unpersuasive. In finding that sheriffs and deputy sheriffs are agents of the state in Gulledge, the court focused on the “potential power of control, ” observing that (1) the state constitution establishes the elective office of county sheriff and his term, (2) the General Assembly prescribes his duties and compensation, (3) the sheriff's arrest powers relate primarily to state offenses, (4) the county territorial jurisdiction is prescribed by the legislature's designation of county boundary lines, and (5) the Governor is empowered to remove the sheriff from office for misconduct and fill a vacancy until the next election. Gulledge, 691 F.Supp. at 954-55.
The plaintiffs' reliance on Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996), does not lead to a different result. In Harter, the United States Court of Appeals for the Fourth Circuit examined and applied the Ram Ditta factors in determining whether an agency or employee is an arm of the state for Eleventh Amendment purposes. The Court explained that “[t]he four Ram Ditta factors are ‘whether the state treasury will be responsible for paying any judgment that might be awarded[, ] . . . [w]hether the entity exercises a significant degree of autonomy from the state, whether it is involved with local versus statewide concerns, and how it is treated as a matter of State law.' ” Id. at 340 (quoting Ram Ditta v. Maryland Nat'l Capital Park & Planning Comm., 822 F.2d 456, 457-58 (4th Cir. 1987)) (alterations added, omission in original). The Harter Court applied these factors and determined that North Carolina sheriffs are not entitled to Eleventh Amendment immunity because, in addition to the first Ram Ditta factor weighing against immunity, the two remaining factors weighed against immunity and one factor did not weigh strongly in either direction. Id. at 340-43. However, in Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996), the Fourth Circuit considered whether the Greenville County Sheriff in South Carolina is entitled to Eleventh Amendment immunity. As in Harter, the Court observed the importance of the first Ram Ditta factor, stating that whether the state treasury will be liable for the judgment is the “ ‘largely, if not wholly, dispositive' factor in determining whether an entity is properly characterized as an arm of the state.” Id. at 1332 (citation omitted). The Court continued that if the treasury will not be affected by the judgment, the court will consider other factors, “chief among which are whether the suit will jeopardize the integrity retained by [the] State in our federal system and whether the state possesses such control over the entity claiming Eleventh Amendment immunity that it can legitimately be considered an arm of the state.” Id. (internal quotation marks and citation omitted). Significantly, in Cromer, the Court found that even though judgments against the Greenville County Sheriff are paid by the South Carolina State Insurance Reserve Fund, it was unclear whether the state treasury would be partially liable for a judgment in that case. Nonetheless, the Cromer Court “considered the remaining factors relevant to the immunity analysis and conclude[d] that, in his official capacity, Sheriff Brown is an arm of the state.” Id.
This court relies on the Fourth Circuit's guidance in Cromer as it pertains to South Carolina sheriffs. Here, the only evidence in the record is that the Richland County Sheriff is “self-funded with no excess insurance.” (Defs.' Answer to Pl.'s 1st Interrog., ECF No. 49-25 at 8.) Thus, just as in Cromer, the record is inconclusive as to whether the state treasury would be impacted, and the remaining factors weigh in favor of Eleventh Amendment immunity. Therefore, the plaintiffs' claims against the Richland County Sheriff, including any claims pursuant to Monell alleging that a policy or custom resulted in a violation of federal law, are barred by the Eleventh Amendment.
3. English's False Arrest Claim
The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const. amend. IV. To establish a § 1983 claim based on a Fourth Amendment violation for false arrest or false imprisonment, a plaintiff must show that a seizure was effected without probable cause. See Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014); Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001); Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996). Thus, there is no § 1983 claim for false arrest, false imprisonment, or malicious prosecution unless the officer lacked probable cause. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). “Probable cause to justify an arrest arises when ‘facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.' ” Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). It requires more than bare suspicion, but less than evidence necessary to convict, Porterfield, 156 F.3d at 569, and the determination of whether probable cause exists is reviewed under the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238 (1983); Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996).
“[A]n indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause” unless the police officer “deliberately supplied misleading information that influenced the decision.” Massey, 759 F.3d. at 356-57 (internal quotation marks and citation omitted). Moreover, an arrest made pursuant to a facially valid warrant will not support a claim for false arrest or malicious prosecution under the Fourth Amendment. See Porterfield, 156 F.3d at 568. Therefore, to demonstrate that an officer seized an individual pursuant to an arrest warrant without probable cause, a plaintiff must show that the officer “deliberately or with a reckless disregard for the truth made material false statements in his affidavit or omitted from that affidavit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.” Miller v. Prince George's Cty., 475 F.3d 621, 627 (4th Cir. 2007) (internal quotation marks and citations omitted). To demonstrate a “reckless disregard, ” a plaintiff must show, in light of all of the evidence, that an officer had “serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. With regard to alleged omissions from an affidavit, a plaintiff must establish that the officer failed to inform the magistrate of facts that the officer knew would negate a finding of probable cause. Id. However, allegations of negligence or honest mistake are insufficient. Id. at 627-28. Additionally, “the false statements or omissions must be material, that is, necessary to the neutral and disinterested magistrate's finding of probable cause.” Id. at 628 (internal citations & quotation marks omitted). Notably, “[o]btaining an arrest warrant does not provide per se evidence” that the warrant was proper or that the officer was objectively reasonable in believing it so. Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991).
The crux of English's arguments appears to be that the victim never identified English as one of the attackers. English further argues that the arrest warrants were obtained with false or misleading information because English asserts that his confession was involuntary and that the arrest warrants failed to comply with South Carolina law.
The evidence submitted belies English's position that he was never identified by the victim as one of the attackers as well as English's suggestion that Defendant Joseph Clarke supplied English's name as an attacker to the victim in the first instance. Specifically, the evidence indicates that road deputy Michael Leahy was dispatched to the victim's apartment on August 5, 2015 and arrived a little before 6:00 a.m. Leahy's testimony summarizes his interview with the witness as follows:
Although the victim stated that the living room was dark or pitch black at the time, one of the males, “Kewon, ” blurted out his identity. The victim appeared certain that this subject named Kewon was one of the two males, since she was acquainted with him. She explained that Kewon was sixteen years old and a friend of her son. Also, the victim knew Kewon's mother, “T.” Kewon lived with his mother in Beatty Downs subdivision.(Leahy Aff. ¶ 11, ECF No. 43-3 at 2.) Further, the victim's neighbor provided a statement to Investigator Zachary Brunson at 7:50 a.m. that morning indicating that the victim told the neighbor that one of the attackers said his name was “Kewnan” and that the victim was saying something about Beatty Downs Road. (ECF No. 43-2 at 8.) Clarke attests that around 8:00 a.m. that morning he was notified of an alleged criminal sexual conduct victim at the hospital and was directed there. Clarke states that upon arriving at the hospital, he gained a “rudimentary understanding of the victim and her version of events” from the medical staff and responding RCSD personnel. Specifically, Clarke attests that Leahy “conveyed that one of the subjects was named Kewon, a sixteen year old African-American male. The victim knew both Kewon and his mother, both of whom lived in Beatty Downs subdivision. Also, Kewon was a friend of the victim's son.” (Clarke
Aff. ¶ 9, ECF No. 43-2 at 2.) At 9:45 a.m., the victim signed a statement under oath that included the following statements:
Q: Why do you think it is Kewon?
A: I am not sure, but that is what he said his name was.
Q: You said he mentioned his mother?
A: He told me “you know T.” T is my mother. She will come back and destroy house.
Q: So the subject mentioned his mother?
A: Yes. That is what they call his mother.
Q: Where does T live?
A: Beaty Downs.
Q: Have you had any problems with T before?
A: No.
Q: So the subject used his name and made mention of his mother during the incident?
A: Yes.(ECF No. 43-2 at 11-12.) At 9:55 a.m., Brunson sent an email to Clarke that stated as follows:
Victim stated to Deputy Leahy that she is almost certain that one of the subject's [sic] who broke in and raped her was named “Kewon” a tall younger black male who lives in Beatty Downs. M/D Davis was able to contact Inv. Radford who identified a subject named Kewon Tyreese English (B/M, DOB:, 6'00, 200 lbs.) who is currently on strict probation and is going through drug court. The Victim also told Deputy Leahy that “Kewon” has been inside her apartment and is friends with her son (Darrion Rodriguez, B/M, attends Columbia High School). I spoke with Darrion who arrived on scene after the incident occurred and he stated that he had been at Kewon's house since 08/04/2015 around 9:00 AM and just came from there. Darrion said there was another guy at Kewon's house name Earl aka “Smooth” (B/M, 19 yr.). The victim reported a $470.00 money order was taken and her car keys.(ECF No. 43-2 at 15.) Thus, the record indisputably reflects that the name Kewon and the location of Beatty Downs was offered to multiple sources even prior to Clarke's involvement in the case. By contrast, no evidence supports English's assertion that the victim “succumb[ed] to pressure from the officer to identify the suspect the officer [led] the victim to identify.” (See Pls.' Mem. Opp'n Summ. J. at 26, ECF No. 49 at 27.)
Moreover, English inaptly focuses on whether a victim's statement alone is enough to make the case “prosecutable”-presumably, sufficient to obtain a conviction beyond a reasonable doubt. But the law is clear that a victim's statement is enough to create probable cause, which is the relevant inquiry here. See, e.g., Torchinsky, 942 F.2d at 262 (“It is surely reasonable for a police officer to base his belief in probable cause on a victim's reliable identification of his attacker. . . . Indeed, it is difficult to imagine how a police officer could obtain better evidence of probable cause than an identification by name of assailants provided by a victim, unless, perchance, the officer were to witness the crime himself.”) (internal citations omitted); see also Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003) (“The complaint of a single witness or putative victim alone generally is sufficient to establish probable cause to arrest unless the complaint would lead a reasonable officer to be suspicious, in which case the officer has a further duty to investigate.”); United States v. Beckham, 325 F.Supp.2d 678, 687 & n.16 (E.D. Va. 2004) (collecting cases). English has failed to identify facts existing at the time of the victim's statement that would have led a reasonable police officer to believe that the statement was suspicious and therefore did not provide probable cause. The court therefore finds based on a totality of the circumstances that probable cause existed to arrest English. No. reasonable jury could find otherwise.”
Additionally supporting a finding that probable cause existed for English's arrest was the finding of probable cause by the county magistrate at English's preliminary hearing and the return of the indictments by the Richland County Grand Jury for the charges upon which English was originally arrested (criminal sexual conduct (first degree) and burglary (first degree)) as well as for two additional crimes (kidnapping and armed robbery). See, e.g., United States v. Soriano-Jarquin, 492 F.3d 495, 502 (4th Cir. 2007) (“This court has long held that the probable cause requirement may be satisfied either by a preliminary hearing or by indictment by a grand jury.”).
In reaching this conclusion, this court-unlike the defendants-does not rely on the arrest warrants that Clarke obtained to arrest English. As stated above, generally, an arrest warrant issued by a neutral and detached magistrate would insulate an officer from a false arrest claim. See Porterfield, 156 F.3d at 568 (stating that an arrest made pursuant to a facially valid warrant will not support a claim for false arrest under the Fourth Amendment) (citing Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996)). Here, however, there is a dispute of fact as to whether English's confession-which underpinned both of the warrants for English's arrest- was coerced and obtained despite his demand for counsel. See Gilliam v. Sealey, 932 F.3d 216, 234-35 (4th Cir. 2019) (“There can be no reasonable dispute that it was clearly established in 1983 that . . . a coerced confession could not form the basis of probable cause for an arrest.”). Accordingly, the court does not rely on English's purported confession in determining whether summary judgment is warranted for the defendants on English's false arrest claim. See id. at 234 (affirming the district court's ruling that whether the plaintiffs' confessions were coerced or fabricated must be determined by a jury); see also Crane v. Kentucky, 476 U.S. 683, 688 (1986) (“[E]vidence about the manner in which a confession was secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess.”). However, for all of the reasons detailed above, even without the insulation generally provided by a warrant, the court concludes that Clarke had probable cause to arrest English. See Brown, 278 F.3d at 367-68 (stating to establish a claim for false arrest under the Fourth Amendment, a plaintiff needs to show that the officers decided to arrest him without probable cause). Even excising the purported false confession by English, Clarke had probable cause to arrest him based on the statements of the victim and other witnesses. Because English cannot establish all the requisite elements, the defendants should be granted summary judgment as to this claim.
As to the warrant for burglary (1st degree), English's confession appears to be the only support in the affidavit. But, as to the warrant for criminal sexual conduct (first degree), the affidavit also states that the “[v]ictim has identified the subject by his name.” (ECF No. 43-2 at 30.)
4. Malicious Prosecution Claims of Plaintiffs English and Powell
“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 omitted). “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). However, the plaintiff need not satisfy the specific elements of a South Carolina state tort claim for malicious prosecution, which, for instance, includes an element of malice. See Medows v. City of Cayce, Civil Action No. 3:07-409-HFF-BHH, 2008 WL 2537131, at *3 (D.S.C. June 24, 2008) (citing Lambert, 223 F.3d at 261-62 & n.2). Rather, 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.” Evans, 703 F.3d at 647 (citing Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)).
Although the Fourth Circuit appears to have recognized such a claim, the law appears to be unsettled as to whether an independent cause of action for “malicious prosecution” exists under the Fourth Amendment. See, e.g., Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007) (“We have never explored the contours of a Fourth Amendment malicious-prosecution suit under § 1983, and we do not do so here.”) (citation omitted); Snider v. Seung Lee, 584 F.3d 193, 199 (4th Cir. 2009) (“While it is not entirely clear whether the Constitution recognizes a separate constitutional right to be free from malicious prosecution, if there is such a right, the plaintiff must demonstrate both an unreasonable seizure and a favorable termination of the criminal proceeding flowing from the seizure.”); cf. Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 919, 922 (2017) (finding that the plaintiff stated “a Fourth Amendment claim when he sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention” and describing it as a “claim for unlawful pretrial detention”).
The defendants argue the plaintiffs fail to forecast evidence sufficient to satisfy the elements of a malicious prosecution claim. The court concludes that, with respect to English, the first two elements are not met on this record and the defendants are entitled to summary judgment on English's claim. Powell's malicious prosecution claim, however, must be submitted to a jury for resolution of a material fact: whether any misconduct by the defendants in connection with the plaintiffs' purported confessions resulted in a seizure of Powell that was unsupported by probable cause.
The court first disposes of the defendants' primary challenge to the plaintiffs' ability to forecast evidence that the criminal proceedings terminated in their favor, as recent Fourth Circuit case law undercuts the defendants' position. The favorable termination requirement of a malicious prosecution claim “is satisfied when the ‘criminal case against the plaintiff has been disposed of in a way that indicates the plaintiff[']s innocence.' ” Salley v. Myers, 971 F.3d 308, 313 (4th Cir. 2020) (alterations in original) (quoting Snider v. Seung Lee, 584 F.3d 193, 202 (4th Cir. 2009) (Stamp, J. concurring)); see also Spak v. Phillips, 857 F.3d 458, 464 (2d Cir. 2017); Denmark v. Starcher, Civil Action No. 1:14CV58, 2016 WL 1122085, at *7 & n.15 (N.D. W.Va. Mar. 22, 2016) (collecting cases). “South Carolina law-which informs our inquiry because § 1983 malicious prosecution claims sound in common law-tells us that a nolle prosse alone will not establish favorable termination.” Salley, 971 F.3d at 313. Rather, the plaintiff must “establish[] that charges were nolle prossed for reasons which imply or are consistent with innocence.” Id. (alterations in original) (internal quotation marks & citation omitted); see also McKenney v. Jack Eckerd Co., 402 S.E.2d 887, 888 (S.C. 1991); Nicholas v. Wal-Mart Stores, Inc., 33 Fed.Appx. 61, 64-65 (4th Cir. 2002) (finding pursuant to McKenney that “the South Carolina Supreme Court would agree with other courts that have also relied on the Restatement's formulation of the rule insofar as they 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”). The Salley Court continued:
Whether the termination of a criminal case is consistent with a defendant's innocence “depends on the nature and circumstances of the termination.” In other words, “[t]he circumstances surrounding the abandonment of the criminal proceedings must compel an inference that there existed a lack of reasonable grounds to pursue the criminal prosecution.” For instance, dismissal due to witness or victim unavailability does not indicate a defendant's innocence. Similarly, the abandonment of charges due to a compromise or an act of mercy typically does not imply innocence.Salley, 971 F.3d at 313 (internal citations omitted).
Here, the parties agree that the plaintiffs' charges were nolle prossed; the question is whether the dismissal was for reasons that imply or are consistent with innocence. The defendants attempt to distinguish Salley by arguing that a critical factor in that case was that the defendant held a dual role as arresting officer and prosecutor, and therefore, the facts surrounding the arrest served as circumstantial evidence of the reason the case was nolle prossed. However, the court concludes, as did the Salley Court, that although the instant case may not be one where there “was indisputable evidence of the plaintiff[s'] innocence due to the [victim's] acknowledgement of its error, ” it also is not “analogous to scores of others in which it was clear that a termination was not consistent with the plaintiff[s'] innocence.” Salley, 971 F.3d at 315 (citing cases where a case was nolle prossed with leave to re-indict, dropped in favor of federal prosecution, or dismissed because a crucial witness could not be secured). As argued by the plaintiffs and acknowledged by the defendants, the charges were dismissed after the DNA evidence came back excluding the plaintiffs as contributors, after one of the plaintiffs' defense attorneys spoke with Clarke at a local restaurant and Clarke allegedly indicated that he thought the plaintiffs were innocent, and after the prosecutor allegedly told defense counsel that the charges were “keeping her up at night.” (Pls.' Mem. Opp'n Summ. J. at 29, ECF No. 49 at 29.) Clarke testified that the DNA results implicated a new target for which he then swore out an arrest warrant. (Clarke Dep. 160-81, ECF No. 49-9 at 41-46.) By contrast, the defendants have offered evidence that the prosecutor nolle prossed the charges because she determined, after weighing the strengths and weaknesses of proceeding to a jury trial, that “insufficient evidence existed to meet the standard of proof required at [the plaintiffs'] criminal trial(s), specifically proving these offenses beyond a reasonable doubt.” (Walker Aff. ¶ 5, ECF No. 43-4 at 2.) However, viewing the evidence in the light most favorable to the plaintiffs, the court concludes that this record presents at least as much of a factual question on this element as did Salley's. Here, sufficient circumstantial evidence exists from which a jury could reasonably infer that the nolle prosequi was consistent with the plaintiffs' innocence. Cf. Salley, 971 F.3d at 315.
Clarke denies that he would ever state that he “had the wrong guys.” (Clarke Dep. 180, ECF No. 49-9 at 46.) But the court views the disputed accounts of this conversation in the plaintiffs' favor for summary judgment purposes.
That said, the defendants are nonetheless entitled to summary judgment on English's malicious prosecution claim based on a lack of evidence as to the remaining elements. As indicated above, the record establishes that the defendants had sufficient probable cause to arrest English even without his disputed confession. Thus, English cannot establish that any misconduct by Clarke caused a seizure of English without probable cause. See Evans, 703 F.3d at 647 (providing 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”).
Additionally, although the record demonstrates that subsequent information, namely the DNA results, could be construed to negate the probable cause that existed at the time of English's arrest, it does not change the fact that probable cause existed at the time of arrest based on the victim's and other witness statements. (But see Clarke Dep. 160-65, ECF No. 49-9 at 41-42) (explaining possible reasons why the presence of another individual's DNA on the victim and not the plaintiffs' DNA did not necessarily mean that there was insufficient probable cause to believe the plaintiffs committed the charged crimes).
Moreover, English's continued detention after the DNA test results cannot be attributed to Clarke. English has presented evidence-which Clarke disputes-that following receipt of the DNA evidence, Clarke indicated that he believed the plaintiffs were innocent of the charged crimes. But even assuming the plaintiffs' version to be true and even assuming that there was earlier misconduct by the officers in connection with the purported confessions, no evidence shows that at that later point in the prosecution, the defendants-as opposed to the prosecutor-were the cause of English's continued detention and prosecution. See Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (finding that “subsequent acts of independent decision-makers (e.g., prosecutors, grand juries, and judges) may constitute intervening superseding causes that break the causal chain between a defendant-officer's misconduct and a plaintiff's unlawful seizure. Such ‘intervening acts of other participants in the criminal justice system' insulate a police officer from liability.”) (citations omitted); see also Massey v. Ojaniit, 759 F.3d 343, 356-57 (4th Cir. 2014) (acknowledging that while intervening acts of other participants in the criminal justice system, such as an exercise of prosecutorial discretion or the return of an indictment, generally insulate a police officer from liability, officers may be liable to a wrongfully indicted defendant when they have deliberately or with a reckless disregard for the truth provided false statements or omissions
to the prosecutor that are necessary to the finding of probable cause). Although English argues that Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546 (4th Cir. 2017), is on point with the underlying facts and claims in this case, Humbert is readily distinguishable compared to the record presented here for all the reasons discussed by the defendants. (Defs.' Reply Mem. at 21-22, ECF No. 55 at 21-22) (explaining that in Humbert the detectives made material misrepresentations, including falsely reporting that the victim could identify Humbert when she could not, and suppressing the DNA report for several months). Accordingly, the defendants are entitled to summary judgment on English's claim for malicious prosecution.
But that is not the case as to Powell's malicious prosecution claim. In contrast with English, a jury could reasonably find that misconduct by the defendants resulted in a seizure of Powell that lacked probable cause.
As to Powell, the defendants similarly rely on the plaintiffs' statements confessing to the crimes as well as the arrest warrants that Clarke obtained. Similar to English, a question of fact for the jury arises as to whether the plaintiffs' confessions were coerced and obtained despite their demands for counsel, potentially negating their utility in the probable cause determination. See Gilliam, 932 F.3d 234-35 (finding that it was clearly established that a coerced confession could not form the basis of probable cause for an arrest and affirming the district court's ruling that whether the plaintiffs' confessions were coerced or fabricated must be determined by a jury); see also Crane, 476 U.S. at 688 (“[E]vidence about the manner in which a confession was secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess.”). But unlike with English, who was independently identified by the victim by name, the disputed confessions appear to form the sole factual basis for Powell's arrest.
In light of this factual dispute, the court assumes as it must for summary judgment purposes that a jury would accept the plaintiffs' account of how the confessions were obtained. The court therefore cannot rely on the plaintiffs' purported confessions, or the arrest warrant for Powell- which, unlike English's, exclusively depended upon English's confession-in determining whether summary judgment is warranted for the defendants on Powell's claim for malicious prosecution. Further, Clarke testified that without the confessions from English and Powell, there was not probable cause to arrest and prosecute Powell at that time. (Clarke's Dep. 190-91, ECF No. 49-9 at 49.) Clarke pointed out that, unlike English, the victim had not mentioned Powell by name. (Id. at 191.) Based on the foregoing material dispute of fact, the court is constrained to recommend that the defendants' motion for summary judgment on Powell's claim for malicious prosecution be denied.
Clarke would not be entitled to qualified immunity on Powell's malicious prosecution claim because, as discussed above, viewing the facts in the light most favorable to Powell, a reasonable jury could find the conduct violated Powell's constitutional rights and such right was clearly established at the time of the alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 231-32 (2009).
5. English's Fifth Amendment Claim
English also argues that the defendants violated his Fifth Amendment rights when Defendant Clarke allegedly coerced him into signing a false statement. To prove a claim for violation of the Fifth Amendment right against self-incrimination, English must show he “has been compelled to be a witness against himself in a criminal case.” Bodle v. Linhardt, No. 12-2425, 2013 WL 2481250, at *7 (M.D. Pa. June 10, 2013) (quoting Chavez v. Martinez, 538 U.S. 760, 770 (2003)). In other words, English must show the state action used his confession against him in a criminal proceeding. See Chavez, 538 U.S. at 767 (“Statements compelled by police interrogations . . . may not be used against a defendant at trial, but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs.”); United States v. Verdugo-Urquidez, 494 U.S. 259, 263 (1990) (“The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial.”); see also Bodle, 2013 WL 2481250, at *7 (dismissing the plaintiff's § 1983 claim under the Fifth Amendment since plaintiff failed to allege that the defendants used the illegally obtained confession against him in a criminal trial); Messina v. Carmichael, No. 13-1366, 2013 WL 6094559, at *3 (W.D. Pa. Nov. 20, 2013) (explaining the “ ‘right to counsel' during custodial interrogation recognized in Miranda is merely a procedural safeguard, and not a substantive right”). Thus, English's confession, even if coerced, is insufficient alone to rise to a violation of the Fifth Amendment, as it was never used at trial.
6. English's First Amendment Claim
The Complaint summarily alleges that the defendants violated English's “first amendment right to be free from state-compelled speech.” (Compl. ¶ 26(a), ECF No. 1 at 8.) The defendants first addressed this claim as a First Amendment retaliatory arrest claim. (See Defs.' Mem. Supp. Summ. J. at 30, ECF No. 43-1 at 30.) However, English contends that the defendants misapprehended this claim and clarifies in his opposition memorandum that his claim is based on his allegation that he was forced to sign a false statement under duress, which violates his right to be free from state-compelled speech. English does not provide any case law recognizing such a claim in the context of allegedly coerced confessions. But even if such a claim could be raised under the First Amendment, the court finds that, as argued by the defendants, Clarke would be entitled to qualified immunity with regard to such a claim.
It appears that this claim would only be against Defendant Clarke, as there are no allegations of personal involvement by any other defendant in this claim. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); see also Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) (indicating to hold a supervisory official liable “[a] plaintiff must show actual or constructive knowledge of a risk of constitutional injury, deliberate indifference to that risk, and ‘an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff' ”) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)).
Qualified immunity shields governmental officials performing discretionary functions from liability for damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 231-32 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id. at 235, 242.
Examining the second prong, in determining whether the right violated was clearly established, the court must define the right “in light of the specific context of the case, not as a broad general proposition.” Parrish v. Cleveland, 372 F.3d 294, 301 (4th Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If the right was not clearly established in the specific context of the case-that is, if it was not clear to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation he confronted-then the law affords immunity from suit.” Id. (citations and internal quotation marks omitted). Moreover,
[a] Government official's conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (first alteration added); see also White v. Pauly, 137 S.Ct. 548, 551-52 (2017) (same). In analyzing this prong, a court in this district must first look to case law from the United States Supreme Court, the Court of Appeals for the Fourth Circuit, and the South Carolina Supreme Court, and in the absence of binding authority, the court must next consider whether the right was clearly established based on general constitutional principles or a consensus of persuasive authority. Booker v. S.C. Dep't of Corrs., 855 F.3d 533, 543 (4th Cir. 2017). The “salient question” “ ‘is whether the state of the law' at the time of an incident provided ‘fair warning' to the defendants ‘that their alleged [conduct] was unconstitutional.' ” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)) (alteration in original). As stated above, no First Amendment caselaw appears to exist that addresses the specific context faced by the defendants in this case. Accordingly, the court finds that there is no clearly established precedent from the controlling jurisdictions or a consensus of persuasive authority that would warn a reasonable officer that a coerced confession violates the First Amendment to the Constitution. See Parrish, 372 F.3d at 301; Tolan, 134 S.Ct. at 1866. Consequently, the court finds that Clarke is entitled to qualified immunity in his individual capacity on any First Amendment claim for damages.
7. English's Fourteenth Amendment Claim
In response to the defendants' motion for summary judgment, English alleges that the defendants violated his Fourteenth Amendment right to equal protection when he was discriminated against based on his race. English argues that there is “ample evidence that the Defendants made the policy decision to select suspected minority gang members over similarly situated Caucasian males for prosecution.” (Pls.' Resp. Opp'n at 37, ECF No. 49 at 37.)
The Equal Protection Clause prohibits officers from selective enforcement of the law based on race. See Whren v. United States, 517 U.S. 806, 813 (1996). “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001); see also Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012) (“To prevail on an equal protection claim under the Fourteenth Amendment, a plaintiff must demonstrate that enforcement had a discriminatory effect and the police were motivated by a discriminatory purpose.”) (internal quotation marks & citation omitted); Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003) (stating for a claim of racially selective law enforcement, the “plaintiff must demonstrate that the defendant's actions had a discriminatory effect and were motivated by a discriminatory purpose”) (citing United States v. Armstrong, 517 U.S. 456, 465 (1996)). Discriminatory effect can be demonstrated by “naming a similarly situated individual who was not investigated or through the use of statistical or other evidence which ‘addresses the crucial question of whether one class is being treated differently from another class that is otherwise similarly situated.' ” Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 534 (6th Cir. 2002) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 638 (7th Cir. 2001)); see also Armstrong, 517 U.S. at 465 (selective prosecution claim); United States v. Hayes, 236 F.3d 891, 895 (7th Cir. 2001) (same).
Here, English contends that the evidence shows that “the Defendants made the policy decision to select suspected minority gang members over similarly situated Caucasian males for prosecution.” (Pls.' Resp. Opp'n Summ. J. at 37, ECF No. 49 at 37.) In support of this position, it appears that English relies on testimony from the commander of the Midlands Gang Task Force, RCSD Captain Vincent Goggins. However, careful review of this deposition testimony does not support English's characterization that “if you are white and in a gang, you will be left alone by the RCSD, and if you are identified as a black or Hispanic gang member, RCSD has a stated mission of trying to put you in prison (even though being in a gang isn't a crime in and of itself).” (Id. at 4, ECF No. 49 at 4.) Goggins did testify that the task force's primary goals consist of education, intelligence, and dismantling the criminal gangs in the Midlands. (Goggins Dep. 13, ECF No. 49-1 at 5.) When asked how many gangs RCSD is monitoring right now, Goggins stated:
According to the defendants, “Goggins” is misspelled as “Coggins” in the deposition transcript.
Multiple. I honestly concentrate on the more national gangs. However, you have various subsets of those gangs. You have different types of gangs and street gangs, motorcycle gangs, prison gangs, drug gangs. So it's various types of gangs, but the -- the -- the top gangs that we deal with primarily here in Richland County is street gangs, and that would be the ones that we would deal with primarily are the Bloods, the Folk Nation Alliance, Crips, and some of the Hispanic gangs, primarily the --the Surenos. And -- but you have various subsets and then you have a lot of hybrid gangs as well and -- and those can pop up at any time.(Id. 19-20, ECF No. 49-1 at 7.) Goggins testified that their educational efforts are to prevent individuals “from joining a gang whether white, black, Hispanic, or other” and convince individuals to leave any gang. (Id. 36, ECF No. 49-1 at 11.) Goggins stated that “[w]ell, here in Richland County, we also have a hate crimes unit on the homeland security that typically focuses on [white nationalist] groups. That is not in my area of I would consider expertise. Mine is more focused on the street gangs, motorcycle gangs, drug gangs, prison gangs.” (Id. 40, ECF No. 49-1 at 12.) Goggins also stated that “if a hate group were to come on our radar, we would look into it. However, primarily in Richland County, the gangs -- the gangs that I spoke with you previously about are the ones that we're -- that we're focused on because those are the ones that are heavily involved in the criminal activity that fits the gang statute.” (Id. 43, ECF No. 49-1 at 13.)
This evidence is insufficient to demonstrate either required element. Specifically, English's evidence fails to show any enforcement of the law against English had a discriminatory effect, nor does it show that the defendants were motivated by a discriminatory purpose. Thus, this claim fails as a matter of law.
English also alleges that the defendants' actions shocked the conscience and therefore violated his due process rights. In Chavez v. Martinez, 538 U.S. 760, 773 (2003), the United States Supreme Court “left open on remand the question of whether the plaintiff could pursue a claim for a violation of substantive due process.” Burrell v. Virginia, 395 F.3d 508, 513 n.3 (4th Cir. 2005). Here, English alleges that Clarke coerced him into signing a false statement confessing to the crimes when Clarke denied English's request for his mother, ignored his request for an attorney, pulled a chair out when English went to sit in it causing English to fall, questioned English for several hours, and informed English he could have an attorney and go home if he signed the statement. (English Aff., ECF No. 49-20.) However, the actions of the defendants, even as alleged by English, fail to rise to the level of police behavior that “shocks the conscience.” See Chavez, 538 U.S. at 774 (“Convictions based on evidence obtained by methods that are ‘so brutal and so offensive to human dignity' that they ‘shoc[k] the conscience' violate the Due Process Clause.”) (quoting Rochin v. People of California, 342 U.S. 165, 172 (1952)). Accordingly, the defendants are entitled to summary judgment on this claim as well.
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motion for summary judgment (ECF No. 43) be denied as to Powell's claim for malicious prosecution and granted as to all other claims.