Opinion
C/A No. 2:16-cv-00777-RMG-MGB
07-31-2018
Parker Meyer, PLAINTIFF, v. Leigh Anne McGowan, individually; Charles Francis Wohlleb, individually; Anthony M. Doxey, individually; Michael Kouris, individually; City of North Charleston; DEFENDANTS.
Report & Recommendation
The Plaintiff, through counsel, brings this action under 42 U.S.C. § 1983 and state law against City of North Charleston Police officers and the City of North Charleston ("the City"). Before the court are the following two motions listed by docket number:
An additional motion for summary judgment (Dkt. No. 120) is pending as well, for which a separate Report and Recommendation is forthcoming.
70. Defendants' Motion for Partial Summary Judgment as to Plaintiff's 42 U.S.C. § 1983 Causes of Action for Warrantless Entry, Invasion of Privacy, False Imprisonment, and Municipal Liability ("Motion on the Merits");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 court recommends that the Motion on the Merits (Dkt. No. 70) be granted in part and denied in part and the Motion for Collateral Estoppel (Dkt. No. 117) be granted in part and denied in part.
117. Defendants' Motion for Summary Judgment as to Certain of Plaintiff's Claims Based upon Collateral Estoppel and as to Plaintiff's Fourteenth Cause of Action ("Motion for Collateral Estoppel").
Facts of the Case
The Plaintiff was arrested in her home on March 27, 2014, by Defendant McGowan and was charged with assault on a police officer. (Dkt. No. 54 ¶¶ 42, 101, 118, 119.) Defendants McGowan, Wohlleb, Doxey, and Kouris were police officers for the City of North Charleston ("City") at the time of the Plaintiff's arrest. (Id. ¶ 3.) At approximately 5:00 p.m. on March 27, 2014, the Plaintiff left her home, which she shared with her mother, and went to a work function. (Id. ¶ 43.) The Plaintiff returned home at 9:20 p.m. and fell asleep on her bed watching television on a laptop. (Id. ¶ 44.) At approximately 10:00 p.m., the Plaintiff woke up and went to retrieve items from her car. (Id. ¶ 45.) The door to the house locked behind the Plaintiff. (Id.) The Plaintiff pounded on her door and yelled to awaken her mother for about four minutes. (Dkt. No. 70-3. at 3-4.) The Plaintiff's mother, who has dementia and is referred to herein as "Jane Doe," was unable to open the door. The Plaintiff alleges that she directed her mother to a glass door where the Plaintiff explained to her mother how to open the door. (Id.) By 10:04 p.m., the Plaintiff alleges that she and her mother were back in their beds, and the Plaintiff again fell asleep watching television on a laptop. (Dkt. No. 54 ¶ 47.)
Meanwhile, the Plaintiff's neighbor, Jake Sadler, called 911 to report the events transpiring with the Plaintiff being locked out of her house. (Dkt. No. 70-2 at 3-4.) Mr. Sadler testified that he observed the Plaintiff banging on her door and yelling. (Id.) Mr. Sadler testified that the Plaintiff walked over next to the sidewalk, pulled up her dress, and appeared to urinate in the grass. (Id.) After she finished urinating, the Plaintiff returned to the door and resumed pounding and yelling. (Id.)
The Plaintiff alleges that the neighbors were motivated by their desire to have the Plaintiff's mother removed from the home. The Plaintiff alleges that the call to the police was part of an ongoing campaign by the neighbors to disrupt the Plaintiff's mother's life with the hope that she would be sent to a nursing home. (Dkt. No. 54 ¶¶ 48-53.)
Defendant McGowan was the first officer to arrive at the Plaintiff's house in response to the 911call. (Dkt. No. 70-10 at 3.) Upon arrival, Defendant McGowan noted a vehicle in the driveway with the interior light on, the hood still warm, and several wine bottles in the back. (Dkt. No. 70-1 at 11, 42.) Defendant McGowan saw a pair of high heels next to the driver's door on the ground. (Id. at 11.) Defendant McGowan knocked on the front door and received no response. (Id. at 6.) Defendant McGowan then proceeded to the back yard to knock on the rear doors. (Id. at 6-7.) Defendant McGowan testified that as she walked through the gate to the backyard, she noticed a large green purse with blood on it. (Id.) Defendant McGowan could see the purse with her flashlight. (Id.) Defendant McGowan then radioed to dispatch at 10:22 p.m. that the car had an open trunk with wine inside, a bloody purse was on the ground, she was unable to locate "the victim," and no one was coming to the door. (Dkt. No. 70-1 at 6, 48.)
The Plaintiff testified that her high heels, which were green, were in the driver's floorboard of the car, not outside on the ground. (Dkt. No. 70-3 at 52.) The Plaintiff also testified it was possible she kicked off her shoes as she was getting out of the car. (Id. at 53.) The Plaintiff additionally disputes that an interior light was on in her vehicle. (Id.)
The Plaintiff disputes that the green bag was a purse, but a picture of the bag is in the record. (Dkt. Nos. 79-4; 88-1.) The Plaintiff testified that the bag was actually a green garden bag. (Dkt. No. 70-3 at 27.) The Plaintiff's expert tested the bag and determined that there was blood on the bag at four locations. (Dkt. No. 79-4.) The bag was tested in November of 2014, approximately eight months after the events in this case took place on March 27, 2014. (Dkt. No. 88 at 1-2.) The Plaintiff testified that it was "highly possible" that the green bag was in the yard as stated in McGowan's incident report. (Dkt. No. 70-3 at 28.) The Plaintiff testified that she did not know if the bag had blood on it on the night of the incident and that it is possible it had blood on it as the result of the Plaintiff cutting her knuckles on her rose bushes. (Id. at 28-29) The court refers to the green bag as a purse because the testimony of the Defendants consistently refers to it as a purse. Looking at the picture of the bag, the officers' description of the bag as a purse was reasonable. The court notes that the Plaintiff contends that the bag was not a purse.
Defendant McGowan knocked on the back door and received no response. (Dkt. No. 70-1 at 14.) Defendant McGowan then met with Mr. Sadler, who repeated to her what he had told the 911 dispatcher. (Id. at 24-25.) Defendants Doxey and Wohlleb arrived on scene simultaneously but in different vehicles. (Dkt. No. 70-10 at 3.) Defendant McGowan briefed Defendants Doxey and Wohlleb on her investigation to that point. (Dkt. No. 70-1 at 14-16.) The three Defendants decided to attempt to wake up a resident of the home to conduct a wellness check. (Id.) Defendant Doxey went to the front door and began knocking while Defendants McGowan and Wohlleb stayed at the back door banging on it. (Id at 16-17.)
Defendant Wohlleb testified that when he arrived on scene, he saw that the car outside the home had the keys in it, was warm, contained several open wine bottles, and that a pair of shoes were just outside the vehicle. (Dkt. No. 70-4 at 3.) Additionally Defendant Wholleb testified that he saw the purse with blood on it. (Dkt. No. 70-4 at 9.) Defendant Doxey testified that there was a pair of shoes outside the car's driver's door. (Dkt. No. 70-10 at 3.) Defendant Doxey testified that he saw the purse but did not see the blood. (Id. at 4-5.) He testified that he did not examine or touch the purse. (Id.)
Defendant Wohlleb was able to open the back door, which was a sliding glass door, by lifting the door within the frame. (Dkt. Nos. 70-1 at 17-18; 70-4 at 4-5.) Defendants Wohlleb and McGowan entered the residence, which was dark, and announced their presence. (Id.) They did not receive a response. (Id.) At the same time, Defendant Doxey was knocking on the front door and saw an elderly lady coming to open the door. (Dkt. No. 70-10 at 5.) The lady turned away from Defendant Doxey knocking at the front door to face Defendants Wohlleb and McGowan, who were approaching from inside the home. (Id.; Dkt. Nos. 70-1 at 18; 70-4 at 5.) Defendant Doxey observed the lady escort Defendants Wohlleb and McGowan upstairs and out of his sight. (Dkt. No. 70-10 at 5-6.) Defendant Doxey then went around to the back of the house and entered through the open door. (Id. at 6.)
The elderly lady, who was Jane Doe, looked towards Defendants Wohlleb and McGowan. (Dkt. No. 70-4 at 5.) Defendant Wohlleb asked her if everything was "okay" and she said yes. (Id.; Dkt. No. 70-1 at 19.) Jane Doe did not appear to be injured or in any distress. (Dkt. No. 70-1 at 19.) Defendants Wohlleb and McGowan explained that they were responding to a family disturbance call and asked where her daughter was. (Dkt. No. 70-4 at 5.) Jane Doe told them the Plaintiff was upstairs in her bedroom. (Id.) Defendants Wohlleb and McGowan asked if Jane Doe would show them where Plaintiff was, and Jane Doe responded in the affirmative and escorted Defendants Wohlleb and McGowan upstairs. (Id.; Dkt. No. 70-1 at 19-20.)
Defendant McGowan found the Plaintiff laying in her bed on top of her covers in the same clothing that was described by Mr. Sadler in the 911 call. (Dkt. No. 70-1 at 20.) The Defendants' account and the Plaintiff's account of what happened in the Plaintiff's bedroom diverge at this point.
The Defendants' account is as follows: Defendant McGowan testified that she saw red wine spilled on the Plaintiff's shirt and that her knee was bleeding. (Dkt. No. 70-1 at 21.) Defendant McGowan could not recall how the Plaintiff woke up, but Defendant McGowan asked the Plaintiff how much alcohol she had consumed because Defendant McGowan was concerned the Plaintiff might need her stomach pumped. (Id. at 21-22.) Defendant McGowan testified that Plaintiff first said she had "too much" to drink and then "not enough." (Id. at 22.) The Plaintiff's speech was slurred, and she appeared disoriented. (Id.; see also Dkt. No. 70-4 at 6.) Defendant McGowan and the other Defendants asked the Plaintiff why her purse and shoes were outside. (Id. at 23.) The Plaintiff attempted to get up to retrieve the items from outside but was unsteady on her feet. (Id.) Defendants Doxey and Wohlleb went to retrieve the Plaintiff's items from outside leaving Defendant McGowan alone with the Plaintiff and Jane Doe. (Id. at 23, 27.) Defendant McGowan asked the Plaintiff if she needed EMS to come for her knee, but she declined. (Id. at 28.) Defendant McGowan continued to ask Plaintiff questions to make sure she appeared coherent and had not fallen or had a concussion. (Id. at 30-32.)
The Plaintiff testified that, after arriving home from a baby shower with co-workers but prior to locking herself outside, the Plaintiff was drinking wine in her bedroom. (Dkt. No. 70-3 at 16.) The Plaintiff fell asleep and spilled red wine on her shirt. (Id.) The Plaintiff then woke up and went outside to get her camera equipment out of the car and locked herself out.
Plaintiff became belligerent and angry. (Dkt. No. 70-1 at 30-32.) Defendant McGowan directed Jane Doe to go to another room because the Plaintiff was getting more agitated with her mother in the room. (Id. at 32-33.) The Plaintiff was demeaning her mother, who appeared fearful of the Plaintiff. (Id. at 35, 43.) Defendant McGowan testified that Plaintiff then lunged towards her and poked her in the eye while swinging her arms and hands. (Id. at 37.) Defendant McGowan was able to control the Plaintiff by getting one of her hands in a cuff. (Id.) Defendant McGowan radioed for Doxey to come back upstairs and Doxey and Wohlleb returned. (Id.)
The Plaintiff's account of what happened in her bedroom is as follows: The Plaintiff was awakened by a "brut[e]" that attacked her in her bed. (Dkt. No. 70-3 at 30.) The "assailant" that attacked her in the dark caused her knee to be carpet burned resulting in her bloody knee. (Id.) The Plaintiff testified that her knee was not injured before the carpet burn. (Id.) The Plaintiff agreed that Defendant McGowan was attempting to ask her if she needed medical attention and ask how much alcohol she had consumed. (Id. at 30-31.) The Plaintiff did not respond to the question because she was "terrified" and "yelling" for the officers to get out of her house. (Id. at 31.) The Plaintiff stated that she was disoriented because "there was a blob, a gigantic, violent blob in my room with a flashlight in my face." (Id. at 32.) The Plaintiff did not remember any other officers being in her room. (Id. at 33.) The Plaintiff testified that she never tried to get out of bed because Defendant McGowan "put [the Plaintiff] to the floor from [her] bed" by her wrist. (Id. at 34, 37.) Defendant McGowan then "violently and forcefully with a...death grip on the back of [her] arm that caused a perfect handprint bruise, stood [the Plaintiff] up to [her] feet, once she'd beaten [Plaintiff] up, and took [Plaintiff] down the stairs." (Id. at 34.) The Plaintiff yelled for her mother to "stay out of this." (Id. at 35.)
Defendant McGowan arrested Plaintiff and charged her with assault on a police officer under a North Charleston city ordinance. (Dkt. No. 70-1 at 38.) The Plaintiff's charge was eventually dismissed and expunged following the Plaintiff's completion of a pretrial diversionary program. (Dkt. No. 79-15; 79-22.)
Defendant Kouris arrived on the scene in response to a request for transport. (Dkt. No. 70-6 at 3.) Defendant Kouris transported the Plaintiff to jail. (Dkt. No. 70-6.) The Plaintiff testified that Defendant Kouris "leered at [her] skirt" while shackling the Plaintiff. (Dkt. No. 80-4 at 10.) The Plaintiff alleged that Defendants McGowan and Kouris then defamed the Plaintiff by telling jail staff that she had committed a felony by abusing her mother. (Dkt. No. 54 ¶ 133.)
Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). However, "the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence." Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
Motion for Collateral Estoppel (Dkt. No. 117.)
The undersigned begins with the Motion for Collateral Estoppel (Dkt. No. 117) because the motion seeks to preclude adjudication on claims and portions of claims for which summary judgment is sought in the Motion on the Merits (Dkt. No. 70.) The Defendant's Motion for Collateral Estoppel is generally divided into claims and portions of claims that Defendants argue are estopped based on the disposition of the Plaintiff's mother's state court case and a defamation claim that the Defendants argue is estopped because of the district court's February 9, 2018 Order in the Plaintiff's companion case, Meyer v. Cannon et al., 2:16-cv-530-RMG-MGB ("the 530 case").
1) Collateral Estoppel by Jane Doe's State Court Case
The Plaintiff's mother, Jane Doe, brought an action in state court against the same Defendants as the case at bar. Jane Doe 202 v. City of North Charleston et al., 2014-CP-10-4591 ("the state case"). Jane Doe was represented by Plaintiff's counsel, Gregg Meyers. The state case included causes of action brought under 42 U.S.C. § 1983 against the individual defendants and the City and state law causes of action. (Dkt. No. 117-2.) The state case granted summary judgment on the Plaintiff's defamation claim, among other claims. (Id. at 117-2 at 3.) A two-week trial was held in the state case ending on October 13, 2017, resulting in a defense verdict on all claims, including Jane Doe's § 1983 claims for warrantless entry.
Jane Doe's case included one additional defendant, Howard Thomas, who was voluntarily dismissed. (Dkt. No. 117-2 at 1 n. 1.)
"Preclusion doctrine encompasses two strands: res judicata and collateral estoppel." Sartin v. Macik, 535 F.3d 284, 287 (4th Cir. 2008). "Res judicata, or claim preclusion, bars the relitigation of any claims that were or could have been raised in a prior proceeding between the same parties." Id. (citation omitted). The second strand of preclusion "is collateral estoppel, or issue preclusion, which bars the relitigation of specific issues that were actually determined in a prior action." Id. (citations omitted). The Defendants in the case at bar seek to preclude the Plaintiff's claims through the second strand, collateral estoppel.
Collateral estoppel is related to the doctrine of res judicata, but it "can be applied to narrower portions of an action than is the case for res judicata." United States v. Tatum, 943 F.2d 370, 382 (4th Cir. 1991). "Issue preclusion is more narrowly drawn and ... operates to bar subsequent litigation of those legal and factual issues common to both actions that were actually and necessarily determined by a court of competent jurisdiction in the first litigation." Orca Yachts, L.L.C., 287 F.3d 316, 318 (4th Cir. 2002) (internal quotations and citations omitted). Collateral estoppel may be used defensively as a bar if the plaintiff had a full and fair opportunity to litigate the issues in the previous suit; mutuality of the parties is not required. Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313 (1971); Thurston v. United States, 810 F.2d 438 (4th Cir. 1987).
"Where the prior proceeding that may make issue preclusion applicable is a state court proceeding, as here, the federal courts use the law of the state to determine if preclusion applies." Ayers v. Cont'l Cas. Co., 2007 WL 1960613, *4 (N.D.W. Va. 2007) (citation omitted). Under South Carolina state law, the party asserting collateral estoppel must show that the issue of fact or law in the present lawsuit was: "(1) actually litigated in the prior action; (2) directly determined in the prior action; and (3) necessary to support the prior judgment." Carolina Renewal, Inc. v. S.C. Dep't of Transp., 385 S.C. 550, 554 (S.C. Ct. App. 2009). "While the traditional use of collateral estoppel required mutuality of parties to bar relitigation, modern courts recognize the mutuality requirement is not necessary for the application of collateral estoppel where the party against whom estoppel is asserted had a full and fair opportunity to previously litigate the issues." Id. (internal quotations omitted). A defendant may successfully assert collateral estoppel against a plaintiff who previously had a full and fair opportunity to litigate the relevant issue effectively in a prior action. Graham v. State Farm Fire & Cas. Ins. Co., 277 S.C. 389, 287 S.E.2d 495, 496 (S.C. 1982). "[M]utuality is no longer a requirement of collateral estoppel." Doe v. Doe, 346 S.C. 145, 149, 551 S.E.2d 257, 259 (2001) (citing Graham., 277 S.C. 389, 287 S.E.2d 495 (1982) ("the modern trend is to disregard the privity requirement in applying estoppel by judgment; in determining the defense of collateral estoppel notwithstanding a lack of privity, the factors the courts have taken into consideration include: whether the doctrine is used offensively or defensively, and whether the party adversely affected had a full and fair opportunity to litigate the relevant issue effectively in the prior action")).
All three requirements to apply collateral estoppel under South Carolina law are met in this case. Whether the individual Defendants' warrantless entry violated the Plaintiff's Fourth Amendment rights was "(1) actually litigated in the prior action; (2) directly determined in the prior action; and (3) necessary to support the prior judgment." Carolina Renewal, Inc., 385 S.C. at 554. In the state case, the Plaintiff's mother asserted §1983 claims against the exact same Defendants as the case at bar for warrantless entry into her home. The jury form in the state case specifically asked for each Defendant in the case at bar the following question:
Do you find that Plaintiff has proved by preponderance of the evidence that [individual Defendant's name] violated [Plaintiff's mother's] constitutional rights by making a warrantless entry into [Plaintiff's mother's] residence on the night of March 27, 2014?(Dkt. No. 80-1 at 5, 7, & 9.) Following a two week trial, the jury in the state case determined that no constitutional violations occurred based on warrantless entry for each of the Defendants. (Id.) The facts of the Plaintiff's mother's case and the case at bar are identical. The legal issue of whether the warrantless entry into the mother's home violated the Fourth Amendment is identical to the Plaintiff's right asserted in the case at bar.
The question before the court is whether, under South Carolina law, the Plaintiff had a "full and fair opportunity to litigate the relevant issue effectively in a prior action." Graham, 277 S.C. at 391, 287 S.E.2d at 496. "[T]he identity of the parties, and their relationships to one another, is simply not a concern when deciding whether to apply the doctrine of collateral estoppel." Carolina Renewal, Inc. v. S.C. Dep't of Transp., 385 S.C. 550, 555, 684 S.E.2d 779, 782 (Ct. App. 2009). "In dispensing with the mutuality requirement, [South Carolina] courts have applied collateral estoppel only when the party against whom estoppel is asserted had a full and fair opportunity to previously litigate the issue." Id.
The legal issue that the Defendants wish to preclude is narrow. The Defendants seek to preclude that their warrantless entry into the Plaintiff's house did not violate the Fourth Amendment because exigent circumstances existed to enter the house. Without question this is the exact legal issue litigated in state court. See Andrade v. Chojnacki, 65 F. Supp. 2d 431, 455-56 (W.D. Tex 1999) (holding that members of religious group asserting § 1983 claims arising from Branch Davidian Waco standoff were bound by the determination regarding the legality of warrants in fellow members' earlier criminal trial). Both the Plaintiff and her mother were occupants of the home and enjoyed the same Fourth Amendment right to be free from unreasonable warrantless intrusion. In Carolina Renewal, Inc., the South Carolina Court of Appeals held that collateral estoppel barred the plaintiff's claims because "the interests of [the plaintiff] and [the plaintiff in the prior case] are identical, ["therefore'] we see no reason to find [the plaintiff] lacked a full and fair opportunity to litigate the issue of damages under the contract with [defendant]." 385 S.C. at 556, 684 S.E.2d at 782. Similarly, the Fourth Circuit has held, "To be in privity with a party to a former litigation, the non-party must be 'so identified in interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved.'" Martin v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005) (citing Jones v. SEC, 115 F.3d 1173, 1180 (4th Cir.1997)).
In addition to the Plaintiff and her mother having identical legal rights as to the warrantless entry, the Plaintiff exercised a significant amount of control over the state case. The state case is unique in that the Plaintiff's mother had advanced dementia for the pendency of the case. The case was brought by her power of attorney. (Dkt. No. 117-3 at 5.) Although the Plaintiff was not formally her mother's power of attorney, the Plaintiff's mother's power of attorney testified that the Plaintiff had primary control and responsibility for all of her mother's affairs. (Dkt. No. 117-3.) The Plaintiff chose the same counsel to represent her mother in the state case and herself in this case and the 530 case. (Dkt. Nos. 117-3 at 6; 117-4.) The Plaintiff was the source of all facts arising from the incident at issue and testified in the state case. (Dkt. No. 117-3 at 2-3.) Jane Doe did not testify. The Plaintiff controlled her mother's finances for the majority of the pendency of the state case and had the "most knowledge of handling" her mother's affairs of any person. (Dkt. No. 117-3 at 3, 5.) The Plaintiff was the family's main contact with her mother's counsel for purposes of the state case. (Dkt. No. 117-3 at 5.) The Plaintiff was the most qualified person in the Mother's family to speak to the state case and its allegations. (Id.) Given that the legal issue of warrantless entry into the home is identical for the Plaintiff and her mother and that the Plaintiff exercised significant control over her mother's case, this court concludes that collateral estoppel applies to whether the Defendants violated the Plaintiff's Fourth Amendment right by entering her home on the night of March 27, 2014. The state court jury's determination of this issue is dispositive and precludes the Plaintiff from re-litigating the issue in this court. (Dkt. No. 80-1 at 5, 7, & 9.)
As to the Plaintiff's second and fourth causes of action, the Plaintiff's claims based on warrantless entry into the home are precluded; the remaining claims brought under these causes of action are not precluded. The Plaintiff's third cause of action for trespass against the City is precluded to the extent it alleges trespass based on the Defendants' warrantless entry into the Plaintiff's home; the remaining claims for trespass are not precluded. The Plaintiff's thirteenth cause of action is precluded because it alleges a claim under § 1983 against the City for maintaining a policy and practice of allowing unconstitutional warrantless entries into residences. (Dkt. No. 54 ¶¶ 254-258.) The preclusive effect of the state court case, which establishes that entry in the residence did not violate the Plaintiff's constitutional rights, bars the Plaintiff's thirteenth cause of action because the Plaintiff cannot establish that any unconstitutional entry occurred.
In the state case, the Plaintiff's mother pleaded a defamation claim based on the same defamatory statements as the Plaintiff's twelfth cause of action. (Dkt. Nos. 54 ¶¶ 133, 250-253; 80-2 ¶¶69-70, 133-148.) The allegations are that Defendants McGowan and Wohlleb told Defendant Kouris that the Plaintiff abused her mother and that her mother had her arrested. (Dkt. No. 54 ¶ 251.) The Plaintiff alleges that Defendant Kouris relayed these statements to the jail when booking the Plaintiff. (Id.) In the state court case, the court entered summary judgment on behalf of the City on the defamation claim. (Dkt. No. 117-2 at 3.) The Defendants argue that the state court's Order precludes the Plaintiff from litigating a cause of action based on the same defamatory statements in this case. (Dkt. No. 117 at 6.) The undersigned disagrees. The state court's Order does not contain any legal analysis at all. Why the state court dismissed the defamation claim is left to complete speculation. The alleged defamatory statements accuse the Plaintiff in this case of a crime. They do not accuse the Plaintiff's mother of any crime. Therefore, the Plaintiff has distinct legal issues that her mother did not have. Given the complete lack of analysis by the state court, the undersigned concludes that the Plaintiff's twelfth cause of action is not precluded by the state case and recommends the Motion for Collateral Estoppel be denied as to the twelfth cause of action.
2) Collateral Estoppel by 530 Case- Fourteenth Cause of Action-Defamation
The Defendants argue that the Plaintiff's fourteenth cause of action, against the City for defamation, is precluded by the District Court's February 9, 2018 Order in the 530 case. (Dkt. No. 117 at 12-15.) The Plaintiff's fourteenth cause of action alleges that Sandy Senn, an attorney who represented the Defendants in the state court case, sent two defamatory emails regarding the Plaintiff. (Dkt. No. 54 ¶¶ 259-272.) This court found that "the alleged defamatory statements are protected by the absolute privilege for statements related to judicial proceedings." (530 Case at Dkt. No. 114 at 11.) The District Court held that "the Magistrate Judge's analysis about Plaintiff's defamation claims against the Senn Defendants is correct." (530 Case at Dkt. No. 124 at 5.)
The Plaintiff argues that, despite this court's prior findings, the City may still be liable for defamation because the City "remain[s] responsible for the tortious conduct of their lawyer." (Dkt. No. 141 at 11.) The Plaintiff cites to Koutsogiannis v. BB & T, 365 S.C. 145, 616 S.E.2d 425 (2005). The Koutsogiannis court held that a defendant "can be held liable for its agent's, Attorney's, actions taken within his scope of representation, including possible torts committed by him." Id. at 149. The Plaintiff's argument misapprehends the litigation privilege. There was no tort committed by Senn because the statements at issue were absolutely privileged.
The absolute privilege for statements related to judicial proceedings is broad and encompasses any "relevant statement" including "communications between counsel, statements made by counsel to a prospective witness, arguments or statements by counsel in course of proceeding, any statements made by witnesses in the course of the proceedings and even statements in the course of negotiation of a settlement." Corbin v. Washington Fire & Marine Ins. Co., 278 F. Supp. 393, 398 (D.S.C.), aff'd, 398 F.2d 543 (4th Cir. 1968) (citations omitted). An "absolute privilege exists as to any utterance arising out of the judicial proceeding and having any reasonable relation to it, including preliminary steps leading to judicial action of any official nature provided those steps bear reasonable relation to it." Crowell v. Herring, 301 S.C. 424, 430, 392 S.E.2d 464, 467 (Ct. App. 1990) (citing RESTATEMENT (SECOND) OF TORTS § 587 cmt. e (1977)).
The District Court has already held that the statements made by Senn, as alleged in the fourteenth cause of action, are absolutely privileged. The Plaintiff's argument assumes that Senn was immune from liability, but her clients can still be liable. The privilege applies to "any utterance arising out of the judicial proceeding" Crowell, 301 S.C. at 430. Black's Law Dictionary defined "privilege" as a "special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty. • A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability." PRIVILEGE, Black's Law Dictionary (10th ed. 2014). Senn's conduct was immunized. Therefore, Senn did not commit any tortious conduct
Assuming arguendo that Senn's comments were tortious and somehow "pass through" to her clients, the Defendants, as litigants in the state court case, enjoyed the litigation privilege as well. Indeed, the absolute privilege applies to statements made by parties in the course of litigation. Pond Place Partners, Inc. v. Poole, 351 S.C. 1, 23, 567 S.E.2d 881, 892 (Ct. App. 2002). (quoting Kraushaar v. LaVin, 39 N.Y.S.2d 880, 883 (N.Y.Sup.Ct.1943) ("So the law offers a shield to the one who in a legal proceeding publishes a libel, not because it wishes to encourage libel, but because if men were afraid to set forth their rights in legal proceedings for fear of liability to libel suits greater harm would result, in the suppression of the truth. The law gives to all who take part in judicial proceedings, judge, attorney, counsel, printer, witness, litigant, a right to speak and to write, subject only to one limitation, that what is said or written bears upon the subject of litigation, that is, is pertinent, relevant, germane thereto.") (emphasis in italics added by court of appeals; emphasis in bold added by undersigned). The alleged defamatory statements in the fourteenth cause of action are, as this court already found in the 530 case, absolutely privileged as to Senn and as to the Defendants. The undersigned recommends that the summary judgment be granted as to the fourteenth cause of action.
Motion on the Merits (Dkt. No. 70.)
The Defendants move for summary judgment on all of the Plaintiff's claims brought under § 1983 except the ninth cause of action alleging excessive force. The Defendants filed their Motion on the Merits on October 3, 2017. (Dkt No. 70.) The Plaintiff filed her Opposition to ECF 70 on October 24, 2017. (Dkt. No. 79.) The Defendants filed a Reply on October 31, 2017. (Dkt. No. 80.) The Defendants filed a supplemental brief on March 27, 2018. (Dkt. No. 125.) The Plaintiff filed a Supplemental Opposition on April 11, 2018. (Dkt. No. 145.) The Defendants filed a Reply on April 13, 2018. (Dkt. No. 148.)
In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she "has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States," and (2) "that the conduct complained of was committed by a person acting under color of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635, 540 (1983); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In a § 1983 action, "liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
1. Second Cause of Action-§ 1983 for Warrantless Entry
The Plaintiff's second cause of action is brought under § 1983 against Defendants McGowan, Wohlleb, and Doxey. (Dkt. No. 54 ¶¶176-182.) The cause of action alleges that all three Defendants violated the Plaintiff's Fourth Amendment rights by entering her home without a warrant and "fabricating evidence" of an emergency. (Id. ¶ 177.) The Plaintiff then alleges that all three Defendants violated the Plaintiff's Fourth Amendment rights a second time by failing to leave the house and proceeding into Plaintiff's bedroom after Plaintiff's mother had told them everything was alright. (Id. ¶ 178.) The Plaintiff finally alleges that Defendant McGowan violated the Plaintiff's Fourth Amendment rights a third time by remaining in her bedroom after she refused medical care. (Id. ¶ 179.)
The Amended Complaint purports to bring claims under 42 U.S.C. §§ 1981 and 1986. The Plaintiff previously conceded that the references to §§ 1981 and 1986 were "scrivener's errors by Plaintiff's counsel" and were meant to be § 1983 claims. (See Dkt. No. 81 at 6 n. 4.)
This court has already concluded that the Plaintiff's warrantless entry claim for entering the home was precluded by the state court case. Assuming arguendo preclusion does not apply, no genuine issue of material fact exists as to the warrantless entry of the home, and the Defendants are entitled to summary judgment. "Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment." Payton v. New York, 445 U.S. 573, 587 (1980) (quoting Dorman v. United States, 435 F.2d 385, 389 (D.C. Cir. 1970)). The Fourth Amendment ensures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. 4. The central requirement of the Fourth Amendment is "reasonableness." United States v. Cephas, 254 F.3d 488, 494 (4th Cir. 2001). "Warrantless entries into a residence are presumptively unreasonable." Id. (citing Payton, 445 U.S. at 586). "Nevertheless, an exception to the warrant requirement is made when certain exigent circumstances exist." Id.
"[L]aw enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006); see also Kentucky v. King, 563 U.S. 452, 460 (2011) (affirming the "emergency aid" exception). In determining whether an officer's entry into a home is justified under this doctrine, "we ask whether the circumstances known to [the officer] would create an 'objectively reasonable belief that an emergency existed that required immediate entry to render assistance or prevent harm to persons or property within.'" Hunsberger v. Wood, 570 F.3d 546, 555 (4th Cir. 2009) (quoting United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992)). In other words, the "emergency aid exception" requires only "an objectively reasonable basis for believing," that "a person within [the home] is in need of immediate aid." Brigham City, 547 U.S. at 406.
"To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, [the court] looks to the totality of circumstances." Missouri v. McNeely, 569 U.S. 141, 149, (2013) (citing Brigham City, 547 U.S. at 406). Each case must be considered within the context of its own facts and circumstances. Id. at 150. The court must view the facts and circumstances from the point of view of the officer at the time of his entry into the home. Hunsberger, 570 F.3d at 555.
The objective circumstances at the time of the Defendants' entry into the Plaintiff's home would cause a reasonable officer to believe that there was an emergency requiring prompt entry. The court first notes the nature of the 911 call that the Defendants were aware of when they arrived on the scene. Defendant McGowan testified that she responded around 10:00 p.m. to a "disturbance," which she described as a "wellness check," with a female pounding on the door to her home and screaming. (Dkt. No. 70-1 at 3-4.) The female was described as white and wearing a white blouse and gray skirt. (Id. at 4.) The female was "possibly the daughter that resided at the house." (Id.) Prior to making entry, Defendant McGowan, along with the other Defendants once they arrived, knocked on both doors of the home multiple times and never received a response. Defendant McGowan observed green high heels next to the driver's door of the car, which was warm. Defendant McGowan observed wine in the back of the vehicle. Defendant McGowan also observed a green bag, which she reasonably perceived to be a purse, with blood on it laying in the yard. Defendant McGowan testified that, based on what she saw at the scene, she was concerned for the safety of the driver of the vehicle, noting it was "not normal" to leave one's shoes outside and that the apparent struggle to get inside left her concerned the person might have fallen and was bleeding. (Dkt. No. 70-1 at 12-13.) Defendant Wohlleb testified that given all of the factors he saw at the scene, including the bloody purse, he was concerned "somebody could be in danger." (Dkt. No. 70-4 at 4.)
The Plaintiff testified that she left the heels in the front floorboard, but then later testified it was possible she kicked off her shoes as she was getting out of the car. (Dkt. No. 70-3 at 53.)
The Plaintiff's expert tested the bag for blood in November of 2014, eight months after the events in this case. (Dkt. No. 79-4.) The expert found blood on four different locations on the bag. (Id.) The Plaintiff testified that was "highly possible" that the green bag was in the yard as stated in the McGowan's incident report. (Dkt. No. 70-3 at 28.) The Plaintiff testified that she did not know if the bag had blood on it on the night of the incident and that it is possible it had blood on it as the result of the Plaintiff cutting her knuckles on her rose bushes. (Id. at 28-29)
The court finds that the Defendants acted in an objectively reasonable manner when they entered the Plaintiff's home without a warrant. The evidence in the record clearly supports that a person had struggled to get in the home and could be injured or highly intoxicated. Notably the bloody bag, which was the same color as the high heeled shoes, would give a reasonable officer reason to believe an emergency could be ongoing inside the home. The bag, which the officers perceived as a purse, not only had blood on it, but was in the yard unattended, which would raise additional suspicions, as normally one would not leave a purse in their yard. No genuine issue of material fact exists as to the factors that support the exigent circumstances in this case. The Defendants are entitled to summary judgment as a matter of law as to the unlawful entry.
The Plaintiff tries to create an issue of fact by arguing that the expert's report does not support the amount of blood that the Defendants stated was on the purse. (Dkt. No. 79 at 8.) The Plaintiff's attorney goes so far as to say that the Defendant's blood claims are "fabricated." (Id.) The Plaintiff's argument defies both logic and the facts of the case. The Plaintiff has not presented any evidence to refute the testimony that there was blood on the bag. Indeed, the only evidence produced by the Plaintiff supports the officers' testimony in that the expert's report found that there was blood on the bag despite the Plaintiff's assertion to the expert that "the ten-year-old bag has never had any blood on it...." (Dkt. No. 79-4.) The Plaintiff conceded in her deposition that it was "highly likely" that the bag was in the yard and could have had blood on it. (Dkt. No. 70-3 at 28-29.) The amount of blood on the bag is not a "material" fact. The fact that any blood was on the bag supports the exigent circumstances to enter the home without a warrant.
As to the Plaintiff's second claim of warrantless entry—for remaining in the home after talking to the Plaintiff's mother, the Plaintiff has failed to state a claim. The Defendants knew that the person who was outside the house screaming and possibly injured was the daughter of the home and knew what the person was wearing. (Dkt. No. 70-1 at 3-4.) The officers' search of the home until that person was found and checked was reasonable. The Plaintiff has not cited any law to support her assertion that officers who enter a home without a warrant pursuant to the emergency aid exception must leave when they are told everything is fine. The officers were reasonable to remain in the home until they assured that no one in the home was injured or otherwise in some dire need.
As to the Plaintiff's third claim of warrantless entry—for remaining in the home after Plaintiff refused medical care, the Plaintiff has failed to assert a warrantless entry claim. According to the Plaintiff's testimony, Defendant McGowan woke her up and took her to the ground shortly after she woke up. (Dkt. No. 70-3 at 30.) The Plaintiff testified this all occurred in the dark and that she did not even know who attacked her. (Id.) The Plaintiff's testimony of what occurred in her room does not support a warrantless entry claim; it supports her § 1983 wrongful arrest claim in her tenth cause of action. Additionally, the Plaintiff has not cited any law to support her claim that the Defendants had to leave the home before they ensured the Plaintiff was not in any emergency situation. Therefore, the undersigned finds that no genuine issue of material fact exists as to the Plaintiff's second cause of action, and the Defendants are entitled to summary judgment as a matter of law.
Additionally, the Defendants are immune from suit under the doctrine of qualified immunity. "Qualified immunity shields government officials from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects officers from liability for "bad guesses in gray areas" and bases liability on the violation of bright-line rules. Id. (quoting Braun v. Maynard, 652 F.3d 557, 560 (4th Cir. 2011)). To determine whether a defendant is entitled to qualified immunity, the court must examine whether the defendant violated the Plaintiff's constitutional or statutory rights and, if so, whether the Defendant's "conduct was objectively reasonable in view of the clearly established law at the time of the alleged event." Id. At best, the Plaintiff's case is one of "bad guesses in gray areas." The Plaintiff has not shown that the law was clearly established under the particular facts and circumstances of this case to overcome qualified immunity as to all of her claims for warrantless entry.
2. Fourth Cause of Action- § 1983 for Invasion of Privacy
The Plaintiff's fourth cause of action alleges § 1983 claims and state law claims for "invasion of privacy." (Dkt. No. 54 ¶¶ 191-200.) In the Motion on the Merits now before the court, the Defendants move for summary judgment on the § 1983 claims. The Plaintiff's fourth cause of action mirrors her second cause of action. The Plaintiff alleges that the Defendants violated her reasonable expectation of privacy in her home by (1) entering her home without legal justification, (2) failing to leave after her mother told them that there was no emergency, and (3) for entering the Plaintiff's bedroom. (Id. ¶¶ 193-195.)
The Plaintiff's fourth cause of action fails for the same reasons her second cause of action fails. No genuine issue of material exists as to the officers' objectively reasonable decision to enter the home without a warrant pursuant to the emergency aid exception. The Defendants were under no obligation to leave the home until they had assured that no emergency existed. The Defendants knew that the daughter of the home, wearing a white blouse and gray skirt, was the individual who was potentially injured or intoxicated. Therefore, it was reasonable for the officers to remain in the home until they had assured there was no emergency and that no one was injured. Additionally, the § 1983 claims in the fourth cause of action are barred by qualified immunity. The undersigned recommends that summary judgment be granted as to the §1983 claims in the fourth cause of action.
3. Tenth Cause of Action- § 1983 for False Imprisonment
The Plaintiff's tenth cause of action alleges §1983 and state law claims for false imprisonment. (Dkt. No. 54 ¶ 237-244.) In the Motion on the Merits now before the court, the Defendants move for summary judgment on the § 1983 claims. (Dkt. No. 70 at 23-30.) The Plaintiff alleges that she was falsely imprisoned by being questioned in her bedroom and being issued a "false citation" and arrested by Defendant McGowan. (Id. ¶ 239.) The Plaintiff alleges that Defendant Wohlleb assisted in arresting her and Defendant Kouris imprisoned her by transporting her to the jail. (Id.)
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 or false imprisonment unless the officer lacked probable cause. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). "Probable cause is determined from the totality of the circumstances known to the officer at the time of the arrest." Brown, 278 F.3d at 367 (citing United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir.1988)). Probable cause requires only "enough evidence to warrant the belief of a reasonable officer that an offense has been or is being committed; evidence sufficient to convict is not required." Id. at 367-8 (citing Wong Sun v. United States, 371 U.S. 471, 479 (1963)). "Two factors govern the determination of probable cause in any situation: 'the suspect's conduct as known to the officer, and the contours of the offense thought to be committed by that conduct.'" Id. at 368 (quoting Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992)).
a. Defendant McGowan
There is a genuine issue of material fact as to whether probable cause existed to arrest the Plaintiff under the North Charleston city ordinance for assault on a police officer. Although the existence of probable cause must be viewed from the officer's perspective at the time of the arrest, this viewpoint does not overcome this court's duty to determine if a genuine issue of material fact exists. The Plaintiff testified that Defendant McGowan was the only officer in the room at the time she was arrested. (Dkt. No. 70-3 at 32-33.) The Plaintiff testified that the entire incident was in the dark, she was terrified, and yelling at McGowan to get out of her house. (Id. at 31, 36.) The Plaintiff testified that Defendant McGowan took her to the floor from her bed and then violently pulled her back up to her feet. (Id. at 34.) The Plaintiff denies that she ever struck Defendant McGowan because Defendant McGowan had "complete control of the situation" and left the Plaintiff bloody and bruised. (Id. at 39.) The Plaintiff's account is that she was attacked and arrested without any cause by Defendant McGowan. Defendant McGowan alleges that she arrested the Plaintiff because the Plaintiff physically attacked her and poked her in the eye. (Dkt. No. 70-1 at 37.)
A genuine issue of material facts exists as to what happened in the Plaintiff's room on the night of March 27, 2014. A reasonable jury could believe the Plaintiff's account of what happened and find that Defendant McGowan arrested the Plaintiff without probable cause. Likewise, a reasonable jury could believe Defendant McGowan's account and find for her. The court cannot resolve factual disputes that are reserved for the jury. Therefore, a genuine issue of material fact exists as to whether Defendant McGowan violated the Plaintiff's Fourth Amendment right to be free from seizure lacking probable cause. The undersigned recommends that the Motion on the Merits be denied as to Defendant McGowan in the tenth cause of action § 1983 claim.
b. Defendants Wohlleb and Kouris
In contrast to Defendant McGowan, Defendants Wohlleb and Kouris did not arrest the Plaintiff and were not present when Defendant McGowan made the decision to arrest the Plaintiff. The United States Supreme Court has repeatedly emphasized that an individual defendant is not liable under § 1983 absent any personal involvement. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (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.... each Government official, his ... title notwithstanding, is only liable for his ... own misconduct"). The Fourth Circuit has emphasized that in a § 1983 action, "liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
Although the Plaintiff was arrested without a warrant, the law regarding the liability of officers executing a facially valid arrest warrant is instructive. An officer cannot be held liable for executing a facially valid arrest warrant. See Porterfield v. Lott, 156 F.3d 563 (4th Cir. 1998); Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir.1996). Both Defendants Wohlleb and Kouris reasonably relied on Defendant McGowan's decision to arrest the Plaintiff. Neither Defendant Wohlleb nor Kouris had any duty to investigate Defendant McGowan's determination of probable cause to arrest the Plaintiff. Defendants Wohlleb and Kouris cannot be liable for false arrest or imprisonment under the Fourth Amendment based on their reasonable reliance on Defendant McGowan's decision to arrest the Plaintiff. See Mattox v. City of Beaufort, No. 9:14-cv-0384 DCN, 2015 WL 4488036, at *10 (D.S.C. July 22, 2015) (officer's actions were objectively reasonable when she helped a fellow sworn officer serve a facially valid arrest warrant even though the fellow sworn officer had falsified facts to establish probable cause to obtain the warrant).
As to Defendant Wohlleb, the Plaintiff argues that he filled out the Plaintiff's booking information and took part in "fabrication" of evidence to justify entering the home. (Dkt. No. 19 at 21-22.) The Plaintiff has not provided any evidence to support her assertion that any Defendant fabricated evidence at any time. As to filling out the Plaintiff's booking sheet, Defendant Wollheb's action was administrative. There is no evidence Defendant Wollheb made a separate probable cause determination.
As to Defendant Kouris, he was called to the scene after the Plaintiff was arrested for the sole purpose of transporting her to the jail. (70-6 at 3.) Defendant Kouris did change out the handcuffs that were on the Plaintiff and put her in leg shackles. (Id.) However, the Plaintiff was already under arrest at that point, and Defendant Kouris reasonably relied on Defendant McGowan's determination to arrest the Plaintiff. The undersigned concludes that no genuine issue of material fact exists as to Defendants Wohlleb and Kouris's lack of personal involvement in the Plaintiff's arrest or reasonable reliance of Defendant McGowan's decision to arrest the Plaintiff. The undersigned recommends that the Motion on the Merits be granted as to Defendants Wohlleb and Kouris in the tenth cause of action.
Defendants Wollheb and Kouris are protected by the doctrine of qualified immunity as well because they did not violate a clearly established right. see footnote 12. The Plaintiff has not cited to any case law that establishes Defendants Wollheb and Kouris violated her rights by relying on Defendant McGowan's finding of probable cause and arrest of the Plaintiff.
4. Thirteenth Cause of Action- § 1983 Claim against the City
The Plaintiff's thirteenth cause of action alleges a claim under § 1983 against the City for maintaining a policy and practice of allowing unconstitutional warrantless entries into residences. (Dkt. No. 54 ¶¶ 254-258.) This court has already found supra that this claim is precluded by the judgment in the state court case. Assuming arguendo that the claim is not precluded, the Defendants are entitled to summary judgment because there is no evidence in the record to support the claim.
The City "is only liable under section 1983 if it causes such a deprivation through an official policy or custom." Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, (1978)); see also Kelley v. Chastain, No. 6:05-cv- 80-HFF, 2008 WL 216350, at *9 (D.S.C. Jan. 24, 2008) (applying Carter and Monell to a Sheriff and his department in South Carolina). Carter stated four ways that a sheriff may be found liable through official policy or custom. "Municipal policy may be found in written ordinances and regulations,...in certain affirmative decisions of individual policymaking officials,...or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens." Carter, 164 F.3d at 218. A custom may be established "[o]utside of such formal decisionmaking channels...if a practice is so 'persistent and widespread' and 'so permanent and well settled as to constitute a 'custom or usage' with the force of law.'" Id. (quoting Monell, 436 U.S. at 691). "Section 1983 plaintiffs seeking to impose liability on a municipality must, therefore, adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their right." Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994).
This court has found that the Plaintiff has not shown that her Fourth Amendment rights were violated as to the warrantless entry into her home. Therefore, the Plaintiff has failed to show that she was deprived of her Fourth Amendment right to be free from unreasonable warrantless entries into her home through any policy or custom of the City. The undersigned finds that no genuine issue of material fact exists as to the Plaintiff's § 1983 Monell claim against the City, and the City is entitled to summary judgment as a matter of law.
Conclusion
Based on the foregoing, this court RECOMMENDS that the Defendants' Motion for Collateral Estoppel (Dkt. No. 117) be GRANTED as to any claims asserting a constitutional violation based on the Defendants' warrantless entry into the Plaintiff's home in the second, third, and fourth causes of action. Additionally, this court RECOMMENDS that the Defendants' Motion for Collateral Estoppel (Dkt. No. 117) be GRANTED as to the thirteenth cause of action for municipal liability under § 1983 and the fourteenth cause of action for defamation. Additionally, this court RECOMMENDS that the Defendants' Motion for Collateral Estoppel (Dkt. No. 117) be DENIED as to the twelfth cause of action.
This court RECOMMENDS that the Defendants' Motion on the Merits (Dkt. No. 70) be DENIED as to Defendant McGowan and GRANTED as to Defendants Wohlleb and Kouris in the Plaintiff's § 1983 claims in the tenth cause of action. Additionally, this court RECOMMENDS that the Defendants' Motion on the Merits (Dkt. No. 70) be GRANTED as to Plaintiff's § 1983 claims in her second, fourth, and thirteenth causes of action.
IT IS SO RECOMMENDED. July 31, 2018 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).