Opinion
C. A. 2:21-CV-00520-DCN-MGB
05-11-2023
Criselda Reyes, Emmanuel Reyes, Plaintiffs, v. Dorchester County of South Carolina, Mike Goldston, Dorchester County Public Works Engineering Manager; Jason Carraher, Dorchester County Public Works Director; Jason L. Ward, Dorchester County Administrator; John Frampton, Dorchester County Attorney, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Criselda Reyes and Emmanuel Reyes (together, “Plaintiffs”), appearing pro se, filed this action under 42 U.S.C. § 1983, regarding the alleged improper regulation of Plaintiffs' private property. (Dkt. No. 14.) Before the Court are parties' motions for summary judgment. (Dkt. Nos. 120; 154.) Additionally, Plaintiffs filed a Motion to Appoint a Master. (Dkt. No. 167.) 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)(e), DSC. For the reasons set forth below, the undersigned recommends Plaintiffs' Motion for Summary Judgment (Dkt. No. 120) be denied, Defendants' Motion for Summary Judgment (Dkt. No. 154) be granted, and Plaintiffs' Motion to Appoint a Master (Dkt. No. 167) be denied.
BACKGROUND
This civil action arises out of the alleged improper regulation of a single-family home lot located on Hillside Farms Subdivision in Dorchester County, South Carolina (the “Premises”).
(Dkt. No. 14 at 3.) Plaintiff Criselda Reyes has been the continuous owner of the Premises since purchasing it in December 2019. Plaintiffs allege that they reviewed the “closing escrow documents with their closing attorney” in December of 2019, and that the “private backyard ditch” on their property was “NEVER ‘Recorded' or ‘Deeded' with a Stormwater Detention or Retention Pond aka ‘Stormwater Management Facility' for the Hillside Farms HOA subdivision community as ‘Public Use.'” (Id.)
Plaintiffs have utilized the Premises as their primary residence since March 2020. (Id.) According to Plaintiffs, they “started experiencing the overflowing stormwaters arising from the Premises' stormwater ditch” in March of 2020, and the “source of the overflow was blockage to one of the pipe systems previously approved by the County.” (Id.) “In May of 2020, Plaintiffs activated a FEMA flood insurance policy to protect their home from overflowing County and Hillside Farms subdivision stormwaters.” (Id. at 4.) In June of 2020, Plaintiffs installed artificial grass in their backyard “as a deterrent to the stormwaters retained in the ditch,” but it did not successfully control the flooding. (Id.) Plaintiffs then “consulted with several experienced drainage and landscaping contractors for solutions to the stormwater encumbrance and stormwater intrusions.” (Id.) In July 2020, contractors discovered that the root cause of the improper drainage was a “tennis ball-size[d] hole” on the bottom of the precast concrete box that was buried under two feet of mud. (Id. at 5 (cleaned up).)
The record shows that on July 24, 2020, Mr. Reyes contacted the Dorchester County Public Works Department asking that they “connect the drainage pipe by installing 135 feet . . . of HDPE corrugated pipe to the stormwater box” because of the repeated floodings on the property. (Dkt. No. 164-6 at 2.) On July 28, 2020, Defendant Mike Goldston (“Goldston”), a Dorchester County Public Works Engineer, responded to this request, stating that Plaintiffs' property contained “a stormwater pond on the rear of the property that serves Hillside Farms.” (Id.) Goldston advised Mr. Reyes that “[a]s owner of this property you are responsible to maintain the pond,” including “the inlet and outlet.” (Id. at 2.) Goldston provided Plaintiff with a “summary of maintenance requirements.” (Id. at 3.)
Thereafter, “in August of 2020,”
Plaintiffs hired experienced South Carolina Department of Transportation drainage contractors who recommended proper stormwater maintenance by connecting the only two recorded 20-ft drainage easements using high-density polyethylene 20-ft long corrugated stormwater drainage (24” diameter) pipes to solve stormwater intrusions and protect the Premises.... This entire stormwater drainage maintenance improvement was documented and photographed thru [sic] its completion.(Id.) Plaintiffs did not obtain a permit from Dorchester County to fill in the stormwater pond. (Dkt. No. 154-8.)
On September 1, 2020, Plaintiffs allegedly witnessed and video recorded two unidentified individuals-one of whom was later identified in the Amended Complaint as Goldston-entering the back of the Premises through the neighboring properties. (Dkt. No. 14 at 5.) The two individuals proceeded to conduct an allegedly “unlawful search and surveillance of the Premises.” (Id.) In a letter dated September 1, 2020, Goldston sent Plaintiffs a “Notice of Violation” (“NOV”) wherein he wrote that based on an inspection on September 1, 2020, Plaintiffs were in “direct violation of the Dorchester County Stormwater Management Program Ordinance #07-21” (“Ordinance 07-21”) for filling in the stormwater pond. (Dkt. No. 120-1 at 5.) The NOV stated that fines up to $1,000 per day may be assessed for failure to restore the pond to its original condition. (Id.)
Ordinance 07-21 provides, in relevant part,
No person shall create or cause a blockage of an open channel or pipe system used to convey or transport stormwater runoff from one property to another separately owned property.
No person shall modify the topography of a property such that storm water runoff is diverted from its original path such as to cause it to be directed on an adjacent property.(Dkt. No. 14 at 4; see Ord. No. 07-21 § 3.2(c), (d).) The Ordinance allows for the “director of public works” to approve written requests for variances from “individuals submitting for a stormwater permit . . . if exceptional circumstances applicable to a site exist such that adherence to the provisions of the chapter will result in unnecessary hardship and will not fulfill the intent of the chapter ....” Ord. No. 07-21 § 7.2.
Dorchester County Ordinance 07-21 can be found online. See https://library.municode.com/sc/dorchester%20county/codes/code_of_ordinances?nodeId=COOR_CH36STMA.
Goldston sent a second letter on September 9, 2020 indicating that after another inspection conducted on September 8, 2020, the stormwater pond had not been restored and Plaintiffs were fined $1,000 “and are subject to fines up to one thousand dollars . . . per violation/day from the date of the NOV.” (Dkt. No. 120-1 at 6.) In September 2020, Defendants appealed the NOV to defendants John Frampton (“Frampton”) and Jason L. Ward (“Ward”). (Dkt. No. 14 at 6.) Frampton is the County Attorney for Ordinance Enforcement, and Ward is a County Administrator. On September 30, 2020, Ward responded that Plaintiffs' appeal of the NOV had been reviewed and denied. (Dkt. No. 120-1 at 7-8.) In this letter, Ward provided context for the stormwater management facility located on Plaintiffs' property, stating:
In 2004, the Developer submitted to Dorchester County its plans which included, among other things, details regarding the dry detention basin located on your lot. The plans submitted delineated that stormwater management facility as a “Water Quality Pond.” It was designed for two purposes: to control the volume and rate of
the discharge of stormwater into the wetlands which adjoin your property and to provide a treatment mechanism for the maximum removal of pollutants prior to discharge into those wetlands.
In 2018, the prior owner of your lot, Mr. and Mrs. McCarty, were made aware that because the dry detention basin was located on their lot, they were required to maintain it to ensure its proper operation. Dorchester County Public Works worked with them to ensure that they restored the facility to its intended function.(Id.) Ward emphasized that in July of 2020, Goldston advised Plaintiffs of their “responsibility” to maintain the “dry detention basin . . . as owner of the lot upon which it was located.” (Id. at 8.)
Ward summarized the negative impact of Plaintiffs' actions thereafter, stating:
You chose, however, to eliminate the dry detention basin by piping it without providing to the County any plans or otherwise seeking any permit to alter the existing stormwater management facility. By doing so, you have altered an existing stormwater management facility, modified your property to direct stormwater runoff from its original path, and conducted a land disturbing activity without complying with the Dorchester County Storm Water Management Design Manual. By piping the existing dry detention basin, you have increased the volume and rate of discharge of stormwater into the wetland as well as prevented the removal of pollutants from the stormwater prior to discharge into the wetland. The protection of water quality is an integral and required component of stormwater management systems.(Id. at 8.) Following this denial letter, Plaintiffs made several Freedom of Information Act (“FOIA”) requests for the “Stormwater Management Plan” and other documents related to the Premises. (Dkt. No. 14 at 7.) Defendant Dorchester County responded that the documents were unavailable.
In October 2020, Plaintiffs invited Goldston and Frampton to the Premises to identify a “common-sense” solution. (Dkt. No. 14 at 7.) Goldston and Frampton accepted the invitation but at the meeting, allegedly emphasized that they would pursue criminal charges unless the “stormwater detention/retention pond” was fully restored. (Id.) On November 12, 2020, Goldston sent Plaintiffs a fourth letter indicating that they had failed to appeal the denial and “commencing with the date of this letter you will be assessed a civil penalty in the amount of $1000 per day for each day you remain in violation”; however, Dorchester County would be willing to forgive the civil penalties if Plaintiffs, within thirty days, “restore[d] the dry detention basin . . . so that it may function properly as a stormwater management facility for the subdivision.” (Dkt. No. 120-1 at 910.) On December 22, 2020, Frampton sent a letter to Plaintiffs' attorney wherein he dismissed the fact that no easement existed over the stormwater management facility and stated that the civil penalties would continue to accrue. (Dkt. No. 120-1 at 11.)
In January 2021, Plaintiffs made another FOIA request for all documents related to the “taking” for “public use” of the “stormwater pond” within the Premises. (Dkt. No. 14 at 8.) Frampton allegedly responded that since there had been “no condemnation” and “no taking,” no such documents existed. (Id.) On March 9, 2021, the South Carolina Department of Health and Environmental Control (“DHEC”) sent its own NOV to Plaintiffs, copying Goldston, explaining that Dorchester County officials had informed DHEC of violations to DHEC's regulations concerning proper maintenance of stormwater management. (Dkt. No. 120-1 at 2.) The letter stated that Plaintiffs had fifteen days to respond with how they planned “to address the restoration of the detention pond” or risk an enforcement action. (Id.)
Plaintiffs filed the instant action on February 19, 2021. (Dkt. No. 1.) On March 18, 2022, the Court granted in part and denied in part Defendants' Motion to Dismiss. (Dkt. Nos, 23; 58.) Pursuant to this Order, the following claims remain pending: (1) § 1983 claims against Dorchester County for failure to train under the Fourth Amendment and for regulatory taking under the Fifth and Fourteenth Amendments; (2) § 1983 claims against Defendant Goldston for unlawful searches under the Fourth Amendment and for regulatory taking under the Fifth and Fourteenth Amendments; and (3) § 1983 claims against Defendants Ward and Frampton for regulatory taking under the Fifth and Fourteenth Amendments. Additionally, Plaintiff Mr. Reyes only has standing to bring claims for violation of his Fourth Amendment rights.
On January 20, 2023, Plaintiffs filed a Motion for Summary Judgment. (Dkt. No. 120.) Defendants filed a response in opposition (Dkt. No. 133), to which Plaintiffs filed a reply (Dkt. No. 142), and Defendants filed a sur-reply (Dkt. No. 165). On March 15, 2023, Defendants filed a Motion for Summary Judgment. (Dkt. No. 154.) Plaintiffs filed a response in opposition (Dkt. No. 164), to which Defendants filed a reply (Dkt. No. 166). On May 9, 2023, Plaintiffs filed sur-replies to the pending Motions for Summary Judgment. (Dkt. Nos. 168; 169.) That same day, Plaintiffs also filed a Motion to Appoint a Master pursuant to Rule 53 of the Federal Rules of Civil Procedure. (Dkt. No. 167.) Defendants filed a response in opposition on May 10, 2023. (Dkt. No. 170.)
Plaintiffs filed this motion prior to the deadlines for discovery and dispositive motions. (Dkt. No. 117.)
The motions have been fully briefed and are ready for review.
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). Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
DISCUSSION
In their Motion, Plaintiffs argue that the evidence shows they are entitled to summary judgment as a matter of law with respect to their claims in this action. (Dkt. Nos. 120; 120-3.) In their Motion, Defendants argue that dismissal of this action is appropriate because: (1) Plaintiffs have failed to present sufficient evidence to support their § 1983 claims; (2) Plaintiff cannot establish that “a search subject to the Fourth Amendment occurred”; and (3) Goldston is entitled to qualified immunity with respect to the alleged Fourth Amendment violation. (Dkt. No. 154.)
While Defendants initially argued that Plaintiffs “failed to exhaust their administrative and state remedies available to them prior to filing a regulatory takings claim” (Dkt. No. 154 at 9), in their reply brief they “retract[] their previous argument stating a requirement for a State adjudication before filing a 42 U.S.C. § 1983 action.” (Dkt. No. 166 at 2.) Indeed, it is well established that the Supreme Court has removed the state-exhaustion requirements for takings claims. See Knick v. Twp. of Scott, Pennsylvania, 204 L.Ed.2d 558, 139 S.Ct. 2162, 2179 (2019) (“The state-litigation requirement of Williamson County is overruled. A property owner may bring a takings claim under § 1983 upon the taking of his property without just compensation by a local government.”). Accordingly, the undersigned does not recommend summary judgment be granted on this basis.
The undersigned considers Plaintiffs' claims, below.
A. Fifth Amendment Claims
Plaintiffs allege that Dorchester County and the individual Defendants, in their official capacities, violated Plaintiffs' Fifth and Fourteenth Amendment rights because the provisions and enforcement of Ordinance 07-21 serve to take their property for use without just compensation. (Dkt. No. 14 at 13.) Defendants argue that Plaintiffs have not provided sufficient evidence to establish a regulatory taking in violation of their constitutional rights. (Dkt. No. 154 at 11-12.)
Courts apply the regulatory takings test under Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) “when a regulation such as a zoning ordinance causes substantial economic harm but does not deprive the landowner's property of all economic value.” Adams v. Village of Wesley Chapel, 259 Fed.Appx. 545, 549 (4th Cir. 2007). Under Penn Central, the court must balance ‘“a complex of factors,' including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.” Murr v. Wisconsin, 137 S.Ct. 1933, 1943 (2017) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)). “The first two factors-economic effects and investment-backed expectations-are ‘primary among those factors.'” Clayton Farm Enters., LLC v. Talbot Cnty., 987 F.3d 346, 353 (4th Cir. 2021) (quoting Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528, 538-39 (2005)).
Because Penn Central is a balancing test, “[t]here is no abstract or fixed point at which judicial intervention under the Takings Clause becomes appropriate....Resolution of each case . . . ultimately calls as much for the exercise of judgment as for the application of logic.” Andrus v. Allard, 444 U.S. 51, 65 (1979); see also Murr, 137 S.Ct. at 1943 (“A central dynamic of the Court's regulatory takings jurisprudence, then, is its flexibility. This has been and remains a means to reconcile two competing objectives central to the regulatory takings doctrine. One is the individual's right to retain the interests and exercise the freedoms at the core of private property ownership....The other persisting interest is the government's well-established power to adjust rights for the public good....In all instances, the analysis must be driven by the purpose of the Takings Clause, which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (cleaned up)).
The undersigned addresses each of the Penn Central factors in turn.
1. Economic Factor
Under this factor, Defendants argue that Plaintiffs cannot prove that Ordinance 07-21 “caused a substantial diminution in value to the regulated property.” (Dkt. No. 154 at 12-13) (quoting Blackburn v. Dare Cnty., 58 F.4th 807, 812 (4th Cir. 2023) (In this Circuit, prevailing on this [economic impact] factor requires that a plaintiff allege that the challenged regulation caused a substantial diminution in value to the regulated property.” (emphasis in original)).
In their briefings, Plaintiffs offer no compelling argument or evidence that the value of their property has decreased due to the challenged regulation. Rather, they primarily cite the civil fines assessed by Defendants Goldston, Ward, and Frampton as evidence of a regulatory taking. (Dkt. No. 120 at 5-7.) As discussed above, the record shows that Plaintiff filled in “the stormwater pond serving Hillside Farms” after they were expressly informed of their responsibility “to maintain the pond,” including “the inlet and outlet.” (Dkt. Nos. 120-1 at 5; 164-6 at 2.) The civil fines at issue were assessed only at that point, and only after they refused to restore the stormwater pond to its original condition. Specifically, Plaintiffs were fined $1,000 on September 9, 2020 for failing to restore “the stormwater pond serving Hillside Farms . . . to original condition as required in the September 1, 2020 NOV.” (Dkt. No. 120-1 at 6.) And, “commencing” with a November 12, 2020 letter from Goldston, Plaintiffs were “assessed a civil penalty in the amount of $1000 per day for each day [they] remain[ed] in violation.” (Id. at 9.) In the November 12, 2020 letter, Plaintiffs were advised that Dorchester County would be willing to forgive the civil penalties if Plaintiffs, within thirty days, “restore[d] the dry detention basin . . . so that it may function properly as a stormwater management facility for the subdivision.” (Id. at 10.) There is no evidence that Defendants have sought to collect any of the assessed civil fines or that Plaintiffs have otherwise paid the fines. Further, Plaintiffs do not make any claims about the actual economic impact of the assessed fines.
The record contains various terms and descriptions for the “stormwater pond” located on Plaintiff's property, including ditch, detention pond, retention pond, and dry detention basin. For ease of reference, the undersigned uses the term “stormwater pond” to refer to the area at issue.
Under this factor, Plaintiffs also argue that in the absence of their corrective action that was prohibited by Ordinance 07-21, the stormwater pond accumulated stormwater that posed health risks and forced Plaintiffs to purchase FEMA flood insurance. (Dkt. No. 164 at 7.) In support, they have submitted: (1) their “Preferred Risk Policy Application” from Progressive Flood, dated May 13, 2020 for a period of one year, at a total premium of $516.00 (Dkt. No. 164-7 at 1-3); (2) photos of the “stormwater intrusions,” which depict the backyard ditch filled with stormwater (Dkt. No. 164-8); and (3) a “letter” from John Duffy, a “licensed and registered, professional engineer” (Dkt. No. 164-11). There is no evidence that Plaintiffs paid the $516.00 premium required by the insurance application. Regardless, an insurance premium of that amount, even if paid, does not support finding a regulatory taking. Further, Plaintiffs offer no evidence of the monetary impact caused by the alleged health risks. In his letter, Mr. Duffy discusses issues with “the grading and stormwater runoff” that he “review[ed]” and observed during a “site visit” on November 12, 2022. (Dkt. No. 164-11.) Mr. Duffy is not a designated expert in this action, and given that he visited the property approximately two years after Plaintiffs filled in the stormwater pond, it is unclear what issues he discussed would be directly attributable to the enforcement of Ordinance 07-21. Additionally, Mr. Duffy does not address the monetary impact of any alleged issues.
Based on the foregoing, the undersigned finds that the first Penn Central factor-the economic impact of the regulation on Plaintiffs-favors Defendants. There is no evidence indicating that Ordinance 07-21 caused a substantial diminution in value to the regulated property. Blackburn, 58 F.4th at 812 (“In this Circuit, prevailing on this factor requires that a plaintiff allege that the challenged regulation caused a substantial diminution in value to the regulated property.”) (emphasis in original); Clayland Farm Enters., LLC v. Talbot Cnty., 987 F.3d 346, 354 (4th Cir. 2021) (holding that the first factor weighs against plaintiffs when they alleged only a 40% diminution in value). Further, Plaintiffs cannot prevail on this factor based solely on the assessed civil fines. See Greenport Gardens, LLC v. Vill. of Greenport, 2021 WL 4480551, at *12 (E.D.N.Y. Sept. 30, 2021) (finding that the first factor weighed against plaintiffs where the plaintiffs alleged a regulatory takings claim based on imposition of 20 fines totaling $5,000 for code violations because “they do not say whether they paid these fines or, if they did, what economic impact those payments had on Plaintiffs”); Leon v. Hayward Bldg. Dep't, 2017 WL 3232486, at *6 (N.D. Cal. July 31, 2017) (finding the issue of economic impact “is not wholly reducible to the imposition of fines”) (citation omitted); cf. Bens BBQ, Inc. v. Cnty. of Suffolk, 2020 WL 5900037, at *9 (E.D.N.Y. May 7, 2020) (finding that the first factor slightly weighed in the plaintiff's favor where the plaintiff alleged that owners of alarm systems were forced to pay severe fines under the county's false alarm law but ultimately concluding that the second and third factors were not met). As for Plaintiffs' arguments about the flood insurance and health risks, these allegations, without more, cannot support finding this factor favors Plaintiffs. See Ani Creation, Inc. v. City of Myrtle Beach Bd. of Zoning Appeals, No. 2021-001074, 2023 WL 2996979, at *9 (S.C. Apr. 19, 2023) (rejecting claim that a zoning ordinance effected a regulatory taking where plaintiffs “do not quantify the economic impact of the ordinance on their properties-the first Penn Central factor”).
2. Investment-Backed Expectations
As to the second factor, Defendants argue that there is no evidence that Ordinance 07-21 interfered with any reasonable distinct investment-backed expectations. (Dkt. No. 154 at 14-16.) Plaintiffs respond that they were not aware the property contained a stormwater pond that was subject to Ordinance 07-21 prior to their purchase of the property. They contend the designation of the pond as a stormwater management facility for the Hillside Farms Subdivision was not clearly identified in any relevant property documents, including the final subdivision plat and the Declaration of Restrictive Covenants for the subdivision. (Dkt. Nos. 120-3 at 5-8; 120-1 at 1, 3-4.) In other words, Plaintiffs claim they had an investment-backed expectation that there were no encumbrances on the property prior to its purchase.
The record contains conflicting evidence as to whether Plaintiffs knew of a lawsuit filed by the previous homeowners against the developers regarding the same stormwater pond prior to their purchase of the property. (Dkt. Nos. 154-3 at 4; 154-24 at 1-2.) While the lawsuit itself may not have clearly indicated that property owners could not maintain or alter the stormwater pond (Dkt. No. 31-1 at 45), it is undisputed that the previous homeowners “were made aware that because the dry detention basin was located on their lot, they were required to maintain it to ensure its proper operation” (Dkt. No. 1201 at 8.) Mr. Reyes admitted during his deposition that he toured the property with the previous homeowners prior to its purchase and saw that “there was a ditch there about 20 feet wide.” (Dkt. No. 154-30 at 3.) He denied, however, that the previous homeowners shared information about the ditch being a stormwater pond subject to any maintenance requirements. (Dkt. Nos. 154-24 at 1-2; 154-30 at 3-4.) Plaintiffs have also presented evidence that Dorchester County currently requires that an “operating and maintenance agreement” be signed by the developer and then recorded whenever a stormwater facility is privately owned. (Dkt. No. 120-4 at 21-22, 44-49.) It does not appear that this agreement was required at the time permits were obtained for Hillside Farms Subdivision. (Id.) Construing the evidence in the light most favorable to Plaintiff, it is reasonable to believe Plaintiffs were not aware the ditch on their property was a stormwater pond subject to Ordinance 07-21.
Plaintiffs have also submitted the following documents purportedly taken from Dorchester County's website: (1) a “Permanent Stormwater System Maintenance and Responsibility Agreement” to be signed by the landowner and notarized; and (2) a “Transfer of Ownership Application.” (Dkt. No. 120-4 at 46-49.) Again, there is no evidence these documents were in use or required at the time the stormwater pond at issue was created.
Further, the undersigned cannot find that Plaintiffs should have reasonably anticipated the possibility of such regulation in light of the regulatory environment. While Defendants argue that the property's location “within a Hurricane corridor” rendered it reasonable for Plaintiffs to expect a regulatory environment that addressed stormwater concerns (Dkt. No. 154 at 15), the property was not in a flood zone (Dkt. No. 154-29). Nor does the evidence indicate the property is directly on the coastline or otherwise in an inherently fragile area.
At the same time, Plaintiffs have not shown that having the ability to alter the ditch in their backyard was a distinct expectation that led to their decision to purchase the property. See Columbia Venture, L.L.C. v. Richland Cnty., 776 S.E.2d 900, 914 (S.C. 2015) (“In evaluating a regulatory takings claim, the purpose of consider[ing] . . . investment-backed expectations is to limit recoveries to property owners who can demonstrate that they [invested in] their property in reliance on a state of affairs that did not include the challenged regulatory regime.” (internal alteration and quotation marks omitted) (citation omitted)); Divergilio v. Charter Twp. of W. Bloomfield, 2006 WL 3103012, at *11 (Mich. Ct. App. Nov. 2, 2006) (rejecting claim that a wetland ordinance effected a regulatory taking where “plaintiffs have not shown that having the ability to develop and maintain a backyard on their property was a distinct expectation that led to their decision to acquire the site”).
Additionally, to the extent Plaintiffs' regulatory takings claim hinges on the assessed civil fines, it is undisputed that Plaintiffs altered the stormwater pond in violation of Ordinance 07-21 only after they knew Dorchester County mandated maintenance of the pond in its current form because it serves the entire subdivision. (Dkt. No. 164-6 at 2; see also Dkt. No. 133-3 at 2.) At that point, Plaintiffs cannot have reasonably expected they could alter the stormwater pond without consequences. See Yu v. Inc. Vill. of Oyster Bay Cove, 579 F.Supp.3d 391, 400 (E.D.N.Y. 2022) (rejecting claim that a “village code concerning construction, conservation, nuisance, and animal control” effected a regulatory taking where “Plaintiffs could not have reasonably expected that they could build without a permit or violate Village Code without consequences”).
Ultimately, because there is no evidence that prior to their purchase of the property, Plaintiffs were aware that the ditch was a stormwater pond subject to Ordinance 07-21, the undersigned finds the second Penn Central factor slightly favors Plaintiffs.
3. Character of the Governmental Action
As the Fourth Circuit recently noted, “courts have treated this [third] factor as an open-ended inquiry into whatever considerations they think are most relevant in each specific case.” Blackburn, 58 F.4th at 813. On principle, however, a taking “may be more readily found when the interference with property can be characterized as a physical invasion by the government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Central, 438 U.S. at 124. Generally, the government cannot “forc[e] some people alone to bear public burdens, which, in all fairness and justice, should be borne by the public as a whole.” Lingle, 544 U.S. at 537.
Here, Defendants assert that “Ordinance 07-21 is a pollution and flooding control ordinance that seeks to protect the health and welfare of the citizens, environment, and economy of Dorchester County.” (Dkt. No. 154 at 16.) The Ordinance falls under the “Stormwater Management Program Ordinance of Dorchester County, South Carolina” and “is adopted . . . in compliance with the requirements imposed upon the county by the National Pollutant Discharge Elimination System (NPDES) Permit No. SC230001 issued in accordance with the Federal Clean Water Act, the state pollution control act, and regulations promulgated thereunder.” Ord. No. 07-21 § 1.2. Under “Findings,” the Ordinance states that “[u]ncontrolled stormwater runoff has significant, adverse impact on the health, safety and general welfare of the county and the quality of life of its citizens by transporting pollutants into receiving waters and by causing erosion and/or flooding.” Id. § 1.3. According to Defendants, Ordinance 07-21 “is a valid exercise of police power on behalf of the citizens of Dorchester County,” and is therefore “entitled to the presumption that [it] advance[s] the public interest.” (Dkt. No. 154 at 17.)
In response, Plaintiffs contend that the Ordinance conflicts with the common enemy rule. “South Carolina follows the common enemy rule which allows a landowner to treat surface water as a common enemy and dispose of it as he sees fit.” Silvester v. Spring Valley Country Club, 543 S.E.2d 563, 566 (S.C. Ct. App. 2001) (citing Glenn v. Sch. Dist. No. Five of Anderson Cnty., 366 S.E.2d 47, 49 (S.C. Ct. App. 1988)). Plaintiffs assert that in accordance with this rule, “a property owner may rid the property of surface stormwaters as deemed necessary.” (Dkt. No. 120 at 7.) Plaintiff also cites S.C. Code § 5-31-450, which provides
Whenever, within the boundaries of any municipality, it shall be necessary or desirable to carry off the surface water from any street, alley or other public thoroughfare along such thoroughfare rather than over private lands adjacent to or adjoining such thoroughfare, such municipality shall, upon demand from the owner of such private lands, provide sufficient drainage for such water through open or covered drains, except when the formation of the street renders it impracticable, along or under such streets, alleys or other thoroughfare in such manner as to prevent the passage of such water over such private lands or property. But if such drains cannot be had along or under such streets, alleys or other thoroughfare, the municipal authorities may obtain, under proper proceedings for condemnation on payment of damages to the landowner, a right of way through the lands of such landowner for the necessary drains for such drainage. If any municipal corporation in this State shall fail or refuse to carry out the provisions of this section, any person injured thereby may have and maintain an action against such municipality for the actual damages sustained by such person.(Dkt. No. 142 at 1 n.1 (quoting S.C. Code Ann. § 5-31-450).)
As an initial matter, “an exception to [the common enemy rule] rule prohibits a landowner from using his land in such a manner as to create a nuisance.” Silvester, 543 S.E.2d at 566 (citing Glenn, 366 S.E.2d at 49). After Plaintiffs were expressly told of their responsibility to maintain the “dry detention basin” in July of 2020, Plaintiffs “chose . . . to eliminate the dry detention basin by piping it without providing to the County any plans or otherwise seeking any permit to alter the existing stormwater management facility, modified [their] property to direct stormwater runoff from its original path, and conducted a land disturbing activity without complying with the Dorchester County Storm Water Management Design Manual.” (Dkt. No. 120-1 at 8.) Plaintiff's neighbor has averred that he “noticed an increase[] in water during heavy rains on the rear of [his] property” after Plaintiffs “filled in the retention pond.” (Dkt. No. 133-3 at 2.) Further, in his letter affirming that the September 1, 2020 NOV “was justified and appropriate,” County Administrator Ward stated that “By piping the existing dry detention basin, you have increased the volume and rate of discharge of stormwater into the wetland as well as prevented the removal of pollutants from the stormwater prior to discharge into the wetland.” (Dkt. No. 120-1 at 8.) Thus, there is significant evidence that Plaintiff's actions created a nuisance. see Silvester, 543 S.E.2d at 566 (explaining that under South Carolina law, nuisance is a substantial and unreasonable interference with another's use and enjoyment of property); see also Lucas v. Rawl Fam. Ltd. P'ship, 598 S.E.2d 712, 716 (S.C. 2004) (“evidence that petitioner's fields now flood in every heavy rain” creates jury question as to whether the respondents' clear cutting of his property constituted a nuisance per se); Deason v. Southern Ry. Co., 140 S.E. 575, 577-78 (S.C. 1927) (jury issue whether defendant's creation of pond by raising embankment and stopping up drainage ditch created a nuisance per se); Woodstock Hardwood & Spool Mfg. Co. v. Charleston Light & Water Co., 63 S.E. 548, 556 (S.C. 1909) (nuisance standard “has been held to apply to dams and ponds causing stagnant pools and emanations injurious to health”). Further, the language of Ordinance 07-21 indicates that its purpose is to prevent circumstances that would constitute a nuisance, such as flooding and pollution. Ord. No. 07-21 § 1.3; Dkt. No. 120-1 at 7. For these reasons, the undersigned finds no inherent conflict between the common enemy rule and Ordinance 07-21. To the extent Defendants' actions conflict with S.C. Code § 5-31-450, Plaintiffs have not pled a cause of action under this statute. The undersigned does not find its potential applicability here warrants finding a regulatory taking under the Fifth Amendment.
Cf. Hawkins v. City of Greenville, 594 S.E.2d 557, 562 (S.C. Ct. App. 2004) (considering a claim in connection to alleged violations of § 5-31-450 for inverse condemnation under South Carolina law).
Plaintiffs also argue that they “were targeted and/or singled out because they were Asian-American minorities during the Covid-19 pandemic.” (Dkt. No. 164 at 8.) However, they have not provided any evidence to substantiate their claim that Ordinance 07-21 was enforced in a discriminatory manner. To the extent Plaintiffs assert they are unfairly burdened by this Ordinance, this is a slightly more problematic issue. See Blackburn, 58 F.4th 807, 814 (under the third Penn Central factor, courts “should consider the distributional impact of the order. All else being equal, a regulation is more problematic when it burdens only a small number of property owners.”). Ordinance 07-21 is “applicable to all development and redevelopment [in Dorchester County].” Ord. No. 07-21 § 1.6. The record shows that the stormwater management plan on Plaintiffs' property originated as part of the required permitting for the development of Hillside Farms Subdivision. (Dkt. Nos. 120-1 at 7-8; 154-42.) “Dorchester County has approximately 250 Stormwater Ponds of which approximately 125 are dry ponds like this one at issue.” (Dkt. No. 133-1 at 1.) In his deposition, Goldston testified that it was “more common years ago” for “a stormwater structure” to be on private property. (Dkt. No. 120-4 at 20.) Currently, there is “one other situation in [Dorchester County] where two homeowners own the pond together, and they're required to maintain their pond.” (Id.) Were the Court to find a regulatory taking exists on this basis, however, this would mean that every time a stormwater management system is permitted for a subdivision and falls within a private lot, any regulations applying to such a system could be found unconstitutional.
Ultimately, the record indicates that Ordinance 07-21 “arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Cent., 438 U.S. at 124 (“A ‘taking' may more readily be found when the interference with property can be characterized as a physical invasion by government, . . . than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” (internal citations omitted)); see also Dolan v. City of Tigard, 512 U.S. 374, 387 (1994) (flood prevention is a “legitimate public purpose”). The undersigned therefore finds this third Penn Central factor weighs in Defendants' favor. See Leon Cnty. v. Gluesenkamp, 873 So.2d 460, 468 (Fla. Dist. Ct. App. 2004) (delay in development due to injunction for non-compliance with stormwater management plan did not constitute compensable taking, noting the plan “recognized that potential stormwater problems would likely be caused by future development in the [area at issue] and set forth objectives in furtherance of the public interest”); see also Martin v. Town of Simsbury, 505 F.Supp.3d 116, 134 (D. Conn. 2020), aff'd, 2022 WL 244084 (2d Cir. Jan. 27, 2022) (Given that the regulations alleged to have caused the Plaintiff's harm are ‘part of a public program adjusting the benefits and burdens of public life' and to which all landowners in the Town are subject, this factor weighs against finding a regulatory taking.” (quoting Sherman v. Town of Chester, 752 F.3d 554, 565 (2d Cir. 2014)).
Considering the three Penn Central factors together, the undersigned recommends there is no reasonable basis to find that a regulatory taking of Plaintiff's property occurred through the enforcement and provisions of Ordinance 07-21. Accordingly, Defendants are entitled to summary judgment on this claim.
B. Fourth Amendment Claims
Plaintiffs allege that Goldston violated their Fourth and Fourteenth Amendment rights by entering their “private property” with an unidentified “colleague” on September 1 and September 8, 2020, without an administrative warrant, consent, or legal justification. (Dkt. No. 14 at 12.) Based on these allegedly unlawful searches, Plaintiffs further claim that Dorchester County violated their Fourth Amendment rights by failing to train its officials. (Id. at 10-11.)
Defendants argue that there is no evidence to support Plaintiffs' claim that “a search subject to the Fourth Amendment occurred.” (Dkt. No. 154 at 18.) More specifically, Defendants argue that Plaintiffs were not subject to an unlawful search because Goldston observed the stormwater pond, in “areas of plain view,” while standing on a sewer easement “granted to the County.” (Id.) Defendants contend that because there is no evidence of an underlying constitutional violation by Goldston, Plaintiffs' claim against Dorchester County for failure to train also fails as a matter of law. (Id. at 10-11.) Defendants further assert that to the extent a search implicating Plaintiffs' constitutional rights did occur, Goldston is entitled to qualified immunity. (Id. at 22.)
1. Evidence
Before considering the applicable law, the undersigned first summarizes the evidence in the record specific to Plaintiffs' Fourth Amendment claims. While the Amended Complaint alleges Goldston entered Plaintiffs' “private property” with an unidentified colleague on September 1 and September 8, 2020, there is only evidence regarding events occurring on September 1, 2020. Additionally, while Goldston was with another individual employed by Dorchester County on that date, this individual remains unnamed.
In his affidavit, Goldston avers that he “inspected the status of the stormwater pond on Dr. Reyes' property on September [1], 2020,” after the Public Works Engineering Department “received at least one complaint indicating the homeowner filled in the dry retention basin.” (Dkt. No. 133-1 at 2.) Relevant here, Ordinance 07-21 § 5.2(a) provides that when conducting “periodic investigations, monitoring, . . . enforcement, . . . [t]he director will duly notify the owner of said property or the representative on site.” Acknowledging this provision, Goldston testified in his deposition that he does not “usually fill out an inspection form and follow that procedure” when “inspecting a complaint.” (Dkt. No. 120-4 at 18.) Goldston explained,
due to the phone calls, we typically will go out and investigate the call because a lot of times the calls are not valid. So we don't want to bother anybody unless it's a valid call. So what we did is we walked into the back yard because the fence- there's a fence crossing the existing easement. It runs down beside [Plaintiffs'] property, so, therefore, we went two houses down where we could walk back to the house.(Id. at 13.) Goldston testified that when the owners of the neighboring properties saw Goldston on their property, they gave their permission for Goldston to walk across their property to access the easement. (Id. at 13-15.) Goldston testified that “the intent was to investigate and decide if it [the complaint] was valid or not. After that, we intended to notify, but it was really unnecessary at that point because we had already confirmed that the pond had been filled, so we issued a NOC after that, Notice of Violation.” (Id. at 17.) According to Goldston, the violation was “obvious. There was a huge depression there, and it was no longer there, and there was material in where the pond normally would have been.” (Id. at 19.)
Goldston avers that during the September 1, 2020 inspection,
I went out of my way not to trespass on Dr. Reyes' property by performing my inspection from a 20-foot Sewer Easement running along the eastern property line
of her property (Lot 10).... I did not enter Dr. Reyes' property during this inspection as the Stormwater Pond was in plain view from the easement.(Id.; see also Dkt. Nos. 165-3, 165-4 at 5.) In support, Goldston cites the Hillside Farms Final Subdivision Plat, dated April of 2005. (Dkt. No. 133-1 at 24.) Relevant to Plaintiffs' property, Lot 10, the plat depicts a 20-foot-wide drainage easement separating Lots 10 and 11, a 20-foot-wide sewer easement separating Lots 9 and 10, and a 20-foot-wide drainage easement at the southeastern portion of Lot 10, abutting Hoffman Lane. (Id.) The Plat notes, “sewer to be provided by Dorchester Public Works,” and includes a dedication statement from the developer stating, “I/We dedicate all roadway right-of-ways, utility easements, and drainage easements to the use of public forever.” (Id.) Mr. Reyes testified during his deposition that he was aware of the drainage and sewer easements at the time he purchased the property. (Dkt. No. 165-5 at 11.)
None of these easements pertain specifically to the stormwater pond at issue in this case.
In his deposition, Mr. Reyes testified that he installed a partial privacy fence and a chain link fence in his backyard after purchasing the property. (Dkt. No. 154-35.) It appears that only the chain link fence separated a portion of Plaintiffs' property line bordering the sewer easement with Lot 9. (Id.; see also Dkt. No. 165-5 at 9.) In his deposition, Goldston emphasized that he did not “cross the fence,” and he intended to stay on the easement “at the edge of the property line,” and “look[] in through the fence.” (Dkt. No. 120-4 at 32.)
Mr. Reyes testified that when he saw Goldston, Goldston was “outside of the chain link fence.” (Dkt. No. 165-8 at 1.) Mr. Reyes testified that regardless of the fence line, the area where Goldston was standing was “still our property.” (Id.) During his deposition, Mr. Reyes disputed the boundaries of the easement at issue, stating he “measured the box all the way to the end of the pipe, [and] it measured 45 feet, so technically where [Goldston] was standing” during the video interaction “was not on the easement because it's 45 feet. It was about 45 feet, so it did not match the recorded plat of a 20-foot drainage easement, so he was not on an easement; he was on our property.” (Id. at 2.) While not specified in Mr. Reyes' deposition, it appears the “pipe” referred to here is a drainage pipe outside of Plaintiffs' property that leads into the stormwater pond, and the “box” is a “storm box” within the stormwater pond that feeds water into it. (Dkt. No. 120-4 at 31; Dkt. No. 169 at 26-28.)
Goldston avers he was standing on a sewer easement, while Plaintiffs refer to it as a drainage easement.
The record is not clear on this point. To the extent the undersigned is not correctly interpreting the “pipe” and “box” at issue, it does not materially change the ultimate analysis and recommendations herein.
Defendants have submitted a video taken by Plaintiff depicting a portion of the September 1, 2020 inspection at issue. The video provided shows the camera (presumably held by Mr. Reyes) approaching two men wearing orange utility vests and standing in a wooded area behind a chain link fence. Man #1 states that there is a stormwater pond on Plaintiffs' property that Plaintiffs will need to restore. When Mr. Reyes tells them to leave, Man #1 states that they are standing on an easement and they have the right to be there. Mr. Reyes insists the men are on private property and tells them to leave. The men then leave, walking behind the fence line in the wooded area. Near the end of the video, Plaintiff walks onto his driveway and the camera focuses on a utility car parked across the street. (Dkt. No. 120-1 at 16-17.)
Defendants refer to this video as Exhibit U. It does not have a corresponding filing number on the docket. (Dkt. No. 154 at 20.)
2. Standards
a. Qualified Immuntiy
“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)). “Qualified immunity provides ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'” Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, the court applies “a familiar two-step inquiry.” Harris v. Pittman, No. 17-7308, 2019 WL 2509240, at *10 (4th Cir. June 18, 2019) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001); Pearson v. Callahan, 555 U.S. 223, 236 (2009)). At step one, courts ask “whether the facts alleged or shown, taken in the light most favorable to the plaintiff, establish that the police officer's actions violated a constitutional right.” Id. (quoting Meyers v. Balt. Cty., 713 F.3d 723, 731 (4th Cir. 2013). “At step two, the question is whether the right at issue was ‘clearly established' at the time of the officer's conduct.” Id. (quoting Meyers, 713 F.3d at 731). District court and court of appeals judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236 (2009).
b. Municipal Liability
Defendant Dorchester County is a local government entity. In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978), the Supreme Court concluded that “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Pursuant to Monell, a municipality or other local government entity may be liable under § 1983 for the violation of a plaintiff's constitutional rights, but only where the constitutionally offensive actions of employees are taken in furtherance of some municipal policy or custom. See Monell, 436 U.S. at 694; see also Knight v. Vernon, 214 F.3d 544, 552 (4th Cir. 2000). Beyond an unconstitutional practice or custom, an entity may also be liable under Monell for its inaction, where its omissions constitute deliberate indifference to constitutional injuries. For instance, the failure to train, supervise, or discipline officers can support liability under Monell. See Connick v. Thompson, 563 U.S. 51, 61 (2011) However, for an entity's failure to train its employees to rise to a constitutional violation, the failure “must amount to ‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Connick, 563 U.S. at 61 (alteration in Connick); see City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (“Only where a municipality's failure to train its employees . . . evidences a ‘deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom' that is actionable under § 1983.”).
c. Searches under the Fourth Amendment
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A search or seizure has “undoubtedly occurred” when “ ‘the Government obtains information by physically intruding' on persons, houses, papers, or effects.” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)). At its core, the Fourth Amendment protects “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961). The area “immediately surrounding and associated with the home,” the curtilage, is “part of [the] home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180 (1984).
Here, Defendants do not dispute that the stormwater pond constituted curtilage. (Dkt. No. 154 at 21.) However, “[t]hat the area is within the curtilage does not itself bar all police observation.” California v. Ciraolo, 476 U.S. 207, 213 (1986). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Id. (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). This is because the “touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.'” Id. at 211 (quoting Katz, 389 U.S. at 360). Accordingly, it is unreasonable to expect law enforcement officers “to shield their eyes when passing by a home on public thoroughfares.” Id. at 213. “Therefore, no Fourth Amendment search occurs if a police officer makes observations while in a public place or open field, even if the objects he observes lie within an area protected by the Fourth Amendment.” Reeves v. Churchich, 484 F.3d 1244, 1254 (10th Cir. 2007) (citing United States v. Dunn, 480 U.S. 294, 304 (1987)); see United States v. Mitchell, 720 Fed.Appx. 146, 150 (4th Cir. 2018) (“Law enforcement officers' use of their unenhanced senses in publicly accessible spaces . . . does not amount to a ‘search' under the Fourth Amendment.”); United States v. Smith, 456 Fed.Appx. 200, 208 (4th Cir. 2011) (“Police officers do not conduct a search under the Fourth Amendment when, stationed in a place where they have a right to be, they observe objects in plain view.”); United States v. Breza, 308 F.3d 430, 434 (4th Cir. 2002) (“[A] law enforcement officer's observations from a public vantage point where he has a right to be and from which the activities or objects he observes are clearly visible do not constitute a search within the meaning of the Fourth Amendment.” (quoting United States v. Taylor, 90 F.3d 903, 908 (4th Cir.1996) (internal quotation marks omitted))).
3. Analysis
Construed in the light most favorable to Plaintiff, the record shows that Goldston was standing on a strip of land on the back edge of Plaintiff's property, next to a utility easement, when he observed the stormwater pond in plain view on Plaintiff's property. “[O]nly the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home.” Oliver v. United States, 466 U.S. 170, 180 (1984). Open fields include “any unoccupied or undeveloped area outside of the curtilage,” and “need be neither ‘open' nor a ‘field' as those terms are used in common speech.” Id. at 180 n.11. “[A] thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.” Id. Thus, the issue before the Court is whether the strip of land from which Goldston made his observations constituted an open field for purposes of the Fourth Amendment.
Because the parties dispute whether the area where Goldston stood fell entirely within an easement, the undersigned refers to this area as “the strip of land.”
To assess whether a particular area is a curtilage, rather than an open field, courts consider “factors that bear on whether an individual reasonably may expect that the area in question should be treated as the home itself.” Dunn, 480 U.S. at 300 (quoting Oliver, 466 U.S. at 180). These factors are “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” Id. (citations omitted). The Supreme Court “identified the central component of this inquiry as whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life.” Id. (citation and internal quotation marks omitted).
Upon review, the balance of the Dunn factors weighs in favor of the area at issue being an open field. Construing the record in light most favorable to Plaintiff, the strip of land was on the back edge of Plaintiff's property in fairly close proximity to Plaintiff's home. While this factor weighs in favor of the area being curtilage, “the proximity of the area to the home must be considered in light of the other Dunn factors.” Breza, 308 F.3d at 435-36 (citing Daughenbaugh v. City of Tiffin, 150 F.3d 594, 598-99 (6th Cir. 1998) (stating that distance of 50-60 yards was “inconclusive” by itself); United States v. Diehl, 276 F.3d 32, 39 (1st Cir. 2002) (observing that 82-foot distance was of “no decisive help” in curtilage determination)). The second factor, whether the area is included in an enclosure surrounding the home, does not weigh strongly in either party's favor. While the strip of land was not included within Plaintiffs' privacy fence or chain link fence, access to the area does apparently require walking across neighboring properties. The third factor, the nature of uses to which the area was put, favors it not being curtilage. There is no indication that Plaintiffs put this strip of land, which was largely within a wooded area, to any uses associated with the sanctity of the home or privacies of life. Lastly, the steps Plaintiffs took to protect the area from observation also weigh in favor of finding the area beyond the curtilage. Even if the strip of land did not fall within an easement, Plaintiffs knew it was right next to an easement and thus accessible to utility workers. There is no indication Plaintiffs made any efforts to protect the area from observation.
Based on the foregoing, the undersigned finds the strip of land on which Goldston made his observations constituted an open field for purposes of the Fourth Amendment. See Breza, 308 F.3d 430 (applying the Dunn factors to find that the garden, despite being “only 50 feet” from the appellant's home, was an “open field” rather than “within the curtilage of the house,” and therefore, was “not subject to the protection of the Fourth Amendment”); Sinclair v. City of Grandview, 973 F.Supp.2d 1234, 1251 (E.D. Wash. 2013) (“These [Dunn] factors do not support a finding that the public utility easement fell within curtilage of Plaintiff's home because the alleyway was located at the furthest reaches of Plaintiffs' property beyond the fence enclosing Plaintiffs' backyard, and because the placement of power lines, phone lines, cable lines, and irrigation lines are not typically associated with uses of the home.”), aff'd sub nom. Sinclair v. Akins, 696 Fed.Appx. 773 (9th Cir. 2017); United States v. Rey, 663 F.Supp.2d 1086, 1116 (D.N.M. 2009) (applying the Dunn factors to find that “[t]he easement through the trees is not an area ‘so intimately tied to the home itself that it should be placed under the home's ‘umbrella' of Fourth Amendment protection'” (quoting Dunn, 480 U.S. at 301)).
Having found Goldston observed the stormwater pond, unaided, from the vantage point of an open field, the undersigned recommends Goldston's conduct does not amount to an unlawful search under the Fourth Amendment. See Dunn, 480 U.S. at 297-304 (finding portion of land where law enforcement officers trespassed constituted an open field for purposes of the Fourth Amendment, and finding no constitutional violation occurred when, from that vantage point, the officers stood and peered into a barn protected by a locked gate and observed the phenylacetone laboratory located within that barn); United States v. Mathias, 721 F.3d 952, 956 (8th Cir. 2013) (finding no unlawful search occurred where police officer from yard of defendant's neighbor stepped up to fence and peered between slats of wooden fence and saw marijuana plants in defendant's back yard, officer was in open field notwithstanding fact defendant owned 18 inch strip on that side of fence where officer standing); Sinclair, 973 F.Supp.2d at 1251 (“Because the utility easement did not lay within the curtilage of Plaintiffs' home, Detective Akins' and Officer Glasenapp's act of observing marijuana from the vantage point of the easement did not constitute an unlawful search of Plaintiffs' home ....”). Accordingly, Goldston is entitled to summary judgment on this Fourth Amendment claim.
Because the undersigned finds no questions of fact as to whether Goldston violated Plaintiffs' constitutional rights, the undersigned does not address Defendants' qualified immunity argument. (Dkt. No. 154 at 22-23.) See Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (“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.” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Likewise, because there is no underlying constitutional violation, summary judgment should also be granted to Dorchester County on Plaintiffs' failure to train claim. See Young v. City of Mount Ranier, 238 F.3d 567, 579 (4th Cir. 2001) (“The law is quite clear in this circuit that a section 1983 failure-to-train claim cannot be maintained against a governmental employer in a case where there is no underlying constitutional violation by the employee.”); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.1999) (“As there are no underlying constitutional violations by any individual, there can be no municipal liability.”); Temkin v. Frederick County Comm'rs, 945 F.2d 716, 724 (4th Cir.1991) (“A claim of inadequate training under section 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation on the part of the person being supervised.”); Tserkis v. Baltimore Cnty., No. ELH-19-cv-202, 2019 WL 4932596, at *4 (D. Md. Oct. 4, 2019) (“It is axiomatic that a Monell claim cannot lie “where there is no underlying constitutional violation by the employee.” (quoting Young, 238 F.3d at 579)).
C. Plaintiffs' Motion to Appoint a Master
As noted above, on May 9, 2023, Plaintiffs filed a Motion to Appoint a Master pursuant to Rule 53 of the Federal Rules of Civil Procedure. (Dkt. No. 167.) Plaintiffs assert that a master should be appointed “to ascertain the precise location, the existence or non-existence of easements on/around the Plaintiffs' property. More so, for the confirmation of actual measurements of drainage pipes (or documents or things relating to easements).” (Id.) Rule 53 provides for the appointment of a master by the court “only to,” inter alia, “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed.R.Civ.P. 53(a)(1)(C). Here, because the evidence in the record is sufficient to resolve Plaintiffs' claims, the undersigned recommends that the appointment of a master is not necessary under Rule 53.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Plaintiffs' Motion for Summary Judgment (Dkt. No. 120) be DENIED, Defendants' Motion for Summary Judgment (Dkt. No. 154) be GRANTED, and this action be dismissed with prejudice. It is further RECOMMENDED that Plaintiffs' Motion to Appoint a Master (Dkt. No. 167) be DENIED.
IT IS SO RECOMMENDED.
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).