Opinion
C/A 2:17-2185-RMG-BM
10-29-2018
Cary Ryals, Plaintiff, v. City of Hanahan, Sgt. Dodd, Sgt. Elwood, Officer Norton and Officer Altman, Defendants.
REPORT AND RECOMMENDATION
This action was originally filed in the South Carolina Court of Common Pleas, Beaufort County, following which it was removed to this United States District Court by the Defendants pursuant to 28 U.S.C. § § 1331, 1332 and 1441. The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on June 15, 2018. After receiving an extension of time to respond, Plaintiff filed a memorandum in opposition to the Defendants' motion on July 20, 2018, following which the Defendants filed a reply memorandum on August 6, 2018.
The Defendants' motion is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 19.02(B)(2)(c), D.S.C. Defendants have filed a motion for summary judgment . As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff is a state prison inmate currently housed at the Kershaw Correctional Institution. Plaintiff alleges that prior to his incarceration, he lived with Julie Welch. Plaintiff's claims relate to an alleged restraining order involving Welch, with the named natural Defendants (all police officers with the Defendant City of Hanahan) allegedly violating his constitutional rights through actions they took relating to the restraining order. Plaintiff alleges that the Defendants charged him with violations of a restraining order that he was never actually served with, and that the Defendants also failed to serve him with a notice of trespassing even though they arrested him on that charge. Plaintiff then alleges that the Defendants falsely stated in court that he had refused transport to a hearing on a restraining order violation, resulting in him being convicted of violating the restraining order for failing to appear. Plaintiff alleges however, that the Defendants never went to the jail to pick him up. Plaintiff also alleges that the Defendants "intentionally violated the Plaintiff's civil rights and abused the process in order to charge the Plaintiff with a felony of Harassment 2nd", and that the Defendants generally have a history of harassing him and violating his rights. Plaintiff further alleges that as part of his criminal charge investigation and processing, the Defendants failed and refused to read him his Miranda rights.
Miranda v. Arizona, 384 U.S. 436 (1966).
Plaintiff's asserted claims are for false arrest and imprisonment (Count 1) in violation of 42 U.S.C. § 1983 , and state law violations of abuse of process (Count 2) and malicious prosecution (Count 3). Plaintiff seeks monetary damages. See generally, Amended Complaint.
42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
In support of summary judgment in the case, the Defendant Travis Dodd has submitted an affidavit wherein he attests that during the time period relevant to Plaintiff's claims he was employed as a police officer with the City of Hanahan Police Department. Dodd attests that on June 5, 2014 he met with Julie Welch in reference to a complaint of harassment she had made against the Plaintiff. Dodd attests that Welch complained that Plaintiff had called, texted, and sent letters to her after being instructed that all communication from him was unwanted. Dodd further attests that Officer Ronnie Scheetz had already advised the Plaintiff on May 27, 2014 not to contact Ms. Welch, and that during the interview Welch provided documentation to show that she had previously reported this type of activity and that Officer Sheetz had already advised the Plaintiff not to contact her as of May 27, 2014. Dodd attests that Welch further provided copies of call logs, texts, and letters that the Plaintiff had sent her, and stated that she wished to seek criminal charges. Dodd attests that Welch was issued a case number and a copy of a Crime Victim Information Sheet. See also Defendants' Exhibits 3, 4 and 5.
Dodd attests that during a subsequent arrest of the Plaintiff on a separate charge of trespassing on or around June 17, 2014, Plaintiff was served with Courtesy Summons No. 2014C082030019 for unlawful communication based on the June 5, 2014 incident. See also, Defendants' Exhibit 6. Dodd attests that the Courtesy Summons was heard in the Hanahan Municipal Court on July 2, 2014, and that the Judge found that probable cause existed for the charge and ordered that a warrant be issued on that charge. See also, Defendants Exhibit 7. An arrest warrant was issued the following day. See also, Defendants Exhibit 8. Dodd attests that Plaintiff was then served with this warrant that same day, while he was incarcerated at the Berkeley County Detention Center, and advised of the bond hearing date and time. Dodd attests that Plaintiff was subsequently found guilty of the charge of unlawful communication on September 25, 2014. See also, Defendant's Exhibit 2. See generally, Dodd Affidavit.
The Defendant Jon Ellwood has submitted an affidavit wherein he attests that during the relevant time period he was a corporal with the City of Hanahan Police Department. Ellwood attests that on June 17, 2014 he responded to 1304 Weaver's Way in reference to a complaint of trespassing. Ellwood attests that while he was en route to that location, he was advised via radio that the Plaintiff was at this location and was creating a disturbance by yelling at the homeowner and victim, Julie Welch. Ellwood attests that he was further advised that Plaintiff was currently on trespass notice for this residence, and that upon his arrival he observed the Plaintiff standing in the garage of the residence. Ellwood attests that the homeowner (Welch) appeared visibly shaken and upset, and that he [Ellwood] separated the Plaintiff from the victim's residence and detained him by applying handcuffs. Ellwood attests that he explained to the Plaintiff that he was being detained based on the trespass notice against him for this residence, which was still active, but that he was not formally arresting him until he had investigated the situation fully. Ellwood attests that he then questioned the Plaintiff as to how he came to arrive at the residence, and that Plaintiff provided him with suspicious and conflicting information. Ellwood attests that he also questioned the victim (Welch), who was visibly shaken up and in tears, and who indicated that Plaintiff had been repeatedly harassing her through unwanted phone calls and text messages. She further told Ellwood that immediately upon Plaintiff's arrival at her residence, she informed Plaintiff that he could not be there, but that Plaintiff had replied "I know that but I just need to talk to you". Ellwood attests that as a result of his investigation, he determined that probable cause existed in that Plaintiff had come to the residence uninvited and that he was trespassing. Ellwood further attests that as there was a valid and active trespass notice in place, and based on the statements from the homeowner, Plaintiff's actions constituted Trespass After Notice when coupled with Plaintiff's refusal to leave. Ellwood attests that Plaintiff was then arrested on that charge, and that while en route to the Detention Center he served the Plaintiff with a Courtesy Summons and citation for Trespass After Notice, which was set to be heard on July 2, 2014 at the Hanahan Municipal Court. Ellwood attests that, upon information and belief, Plaintiff thereafter pled guilty to the charge of Entering the Premises Without Warning on September 25, 2014, based on this incident. See also, Defendants' Exhibit 2. See generally, Ellwood Affidavit.
The Defendant Mathew Altman has submitted an affidavit wherein he attests that during the relevant time period he was an officer with the Hanahan Police Department. Altman attests that a restraining order was issued against the Plaintiff on or about July 14, 2014, prohibiting Plaintiff from contacting or communicating with Ms. Welch in any format. See also, Defendants' Exhibit 10. Altman attests that on or about August 24, 2014 he met with Ms. Welch, who advised him that she had received a communication from the Plaintiff on a web based social media cite. Welch was also able to provide a photograph copy of the Plaintiff's social medial request to her. See Defendants' Exhibit 11. Welch further advised Altman that Plaintiff had contacted both her neighbor and her ex-husband attempting to talk about her. Altman attests that as a result of this incident, a municipal judge found probable cause and issued an arrest warrant for the Plaintiff on a charge of violating the restraining order. See also, Defendants' Exhibit 12. Altman attests that Plaintiff was subsequently automatically found guilty of this charge on December 10, 2014 after he refused to be transported to the hearing. See generally, Altman Affidavit.; see also Defendants' Exhibit 12 [Court Docket No. 22-18, p. 4].
Finally, the Defendant Michael Norton has submitted an affidavit wherein he attests that during the relevant time period he was an officer with the Hanahan Police Department. Altman attests that on August 29, 2014 (sic) the Plaintiff contacted the victim Julie Welch by calling her and leaving a phone message after having been served with a restraining order. Norton attests that he responded to the victim's address on August 30, 2014, at which time Welch provided him with a copy of the restraining order, which was current. Norton attests that Welch had also saved the voice mail from the Plaintiff, which he was able to listen to. Norton attests that the voice mail was time stamped Friday, August 29, 2014, at 9:48 p.m. Norton attests that he attempted to contact the Plaintiff using the telephone number he had called from, but with negative results. Based on these facts, a municipal judge found probable cause for the charge of violation of restraining order, and issued a warrant for Plaintiff's arrest. See also, Defendants' Exhibit 14. Norton attests that Plaintiff was automatically found guilty of this charge on December 10, 2014, after he refused to be transported to the hearing. Id. [Court Docket No. 22-20, p. 3]. Norton further attests that he could not have lied to the Court with respect to Plaintiff's refusal to be transported (as Plaintiff alleges in his Complaint), as he had left the employment of the Hanahan Police Department on October 15, 2014, and was therefore not even a police officer at the time of Plaintiff's hearing. See generally, Norton Affidavit.
In opposition to the Defendants' motion, Plaintiff has submitted an affidavit in which he states that the residence at 1304 Weaver's Way was a residence he shared with his "girlfriend", Julie Welch, and that he "feels that he should have been served [with the restraining order] other than via phone." Plaintiff therefore states that it is his belief that he was "unlawfully made to leave his residence . . . .". Plaintiff further appears to contest that it was actually Officer Scheetz who he spoke with over the phone, stating that the person he had a conversation with only claimed to be Officer Scheetz, a claim he "played along with". Plaintiff attests that on June 16, 2014, it was Welch who contacted him, stating that they needed to talk. Plaintiff attests that a John Hallman was a witness to this conversation. Plaintiff attests that when he then went to meet with Welch the following day, he was arrested by Officer Ellwood. Plaintiff further states that he admits he contacted Welch using a phone at MUSC, but states that he never used any form of threat against her. He states that the staff at MUSC told him the woman he had called did not want to receive calls from him. Moreover, Plaintiff further states that he does not have a clear recollection of this call, because he was on "heavy narcotic medication" at the time.
Plaintiff attests that he was found not guilty of the charge of intimidation of a witness, which involved a court official, not any of the claims at issue in this lawsuit. State v. Lyals, Case No. 2016-GS-08-2032. Rather, Plaintiff complains that he was arrested on a charge (apparently involving Welch) when he was coming out of the courtroom trying to defend himself on these other charges. Plaintiff admits that he pled guilty to the two charges referenced by the Defendants, but contends that that was part of an agreement that there would be no further charges brought against him. Plaintiff states, however, that he later "felt uncomfortable with the plea agreement".
With respect to the complaint of harassment against him, Plaintiff admits in his affidavit to having called neighbors and Welch's ex-husband because he was trying to get his Social Security card and birth certificate. However, Plaintiff attests that the number he purportedly called the Plaintiff from is not his number. Even so, Plaintiff does admit that he stopped at Plaintiff's place of work "as I did many times throughout out our two year relationship", but states that since he has been told not to go there anymore he will not ever go back to her place of work. Plaintiff also admits to having sent two cards to Welch, but believes he was entitled to do so because they dealt with a birthday gift for her daughter. Plaintiff further complains about Officer Norton's report and subsequent charge relating to having made a phone call to the Plaintiff, but then appears to concede that he made this phone call because he says he "just got a Beep as if it was a Fax no." Plaintiff also complains that Officer Altman undertook an incomplete investigation of the Instagram incident, and attests that he does not even do social media. See generally, Plaintiff's Affidavit.
Plaintiff has also attached numerous exhibits to his response, including a letter he wrote to the Berkeley County Magistrate/Summary Court, a response to an FOI request for phone records and police department records, a copy of a transcript from a General Sessions trial on April 17 - 20, 2017 (which lists Plaintiff as the Defendant in that case, apparently charged with harassment first degree and intimidation of court officials), and copies of depositions dated April 5, 2018 and April 11, 2018.
Finally, as an attachment to their reply brief, the Defendants have submitted an affidavit from Kris Jacumin, who attests that he is a Captain at the Hill-Finklea Detention Center, and that he has reviewed the FOIA responses from the Detention Center that Plaintiff references in an attempt to support his theory that he did not refuse transport to a violation of restraining order hearing held on December 10, 2014. Jacumin attests that Plaintiff misrepresents these FOI findings, because the Detention Center would not have a filed transport request or have an order of transport in its possession; therefore, Plaintiff's assertion that the Detention Center's lack of such documentation proves his allegation (that he did not refuse transport to a court proceeding) is unfounded. Jacumin attests that the City of Hanahan Police Department and its agents complied with proper detention center procedure in their attempt to transport the Plaintiff despite his refusal. See generally, Jacumin Affidavit.
Discussion
The Defendants have moved for summary judgment on all of Plaintiff's claims. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992).
Here, after careful review and consideration of the arguments and evidence submitted, the undersigned finds for the reasons set forth hereinbelow that the Defendants are entitled to summary judgment in this case.
Federal Claim for False Arrest and Imprisonment
In his First Cause of Action, Plaintiff asserts a claim for false arrest and imprisonment against the named natural Defendants, alleging that they falsely told the court that he had refused to be transported to a hearing, by charging him with "Harassment 2nd", and by generally falsely accusing him of actions he did not commit, improperly utilizing policies and procedures to falsely charge him with crimes, falsely stating that he was involved in criminal activity and falsely imprisoning him, and violating Plaintiff's rights by failing and refusing to read him his Miranda rights. See generally, Amended Complaint, ¶ ¶ 49-56. "To prevail on a false arrest claim, [ ] plaintiff must establish that his arrest was not lawful". Martin v. Lott, No. 07-3782, 2010 WL 597209, at * 2 (D.S.C. Feb. 16, 2010). To establish that his arrest and seizure were not lawful, Plaintiff must show that his arrest was without probable cause. Wortman v. Spartanburg, 425 S.E. 2d 18, 20 (S.C. 1992) ["The fundamental question in determining whether an arrest is lawful is whether there was 'probable cause' to make the arrest"]. In assessing the existence of probable cause, courts examine the totality of the circumstances known to the officer at the time of the arrest, and "[t]o prove an absence of probable cause, [a plaintiff] must allege a set of facts which made it unjustifiable for a reasonable officer to conclude that [he] was violating [the law]". Brown v. Gilmore, 278 F.3d 362, 368 (4th Cir. 2002).
Plaintiff states in his response brief that he is only pursuing his federal § 1983 claim against the named natural Defendants, and that the Defendant City of Hanahan is not a defendant under this Cause of Action. See Plaintiff's Brief [Court Docket No. 32, p. 24 (heading "D")].
This allegation would actually appear to be more properly considered as part of Plaintiff's separate state law claim for malicious prosecution. See Panzica v. Corrections Corp. of America, 559 Fed.Appx. 461, 464-465 (6th Cir. Mar. 17, 2014)[Distinguishing between malicious prosecution and false imprisonment]; Singer v Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995) (quoting Prosser and Keeton on Law of Torts § 119, pp. 885-886 (5th ed. 1984)["If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more. From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself"]).
This allegation does not support Plaintiff's claim for damages under § 1983 for false arrest or imprisonment, as a failure to read Plaintiff his Miranda rights (assuming for purposes of summary judgment that that in fact occurred) is not a violation of a constitutional right. Chavez v. Martinez, 538 U.S. 760, 772 (2003); Connecticut v. Barrett, 479 U.S. 523, 528 (1987); Michigan v. Tucker, 417 U.S. 433, 444 (1974).
Plaintiff has failed to present evidence sufficient to give rise to a genuine issue of fact that any named natural Defendant violated his constitutional rights by subjecting him to a false arrest or imprisonment. First, there is no evidence to show that, with respect to any of the charges at issue in this lawsuit, Plaintiff received a favorable termination of those charges. To the contrary, Plaintiff was found guilty of the unlawful communication charge (with which Dodd is associated) on September 25, 2014. See generally, Dodd Affidavit; see also Defendants' Exhibit 2. Plaintiff also pled guilty to the charge of entering premises without warning (the charge with which Elwood is associated) on September 25, 2014. See generally, Elwood Affidavit; see also Defendants' Exhibit 2. Finally, Plaintiff was found guilty of the two separate charges of violating the restraining order (with which Altman and Norton are associated) on December 10, 2014. Where a person is convicted on a charge, that in and of itself establishes probable cause for purposes of a claim for false arrest. Cf. Konon v. Fomal, 612 F.Supp. 68, 71 (D.Conn. 1985) ["Having decided that the criminal charge at issue in the state court was not disposed of in a manner favorable to the [plaintiff] . . . it would be anomalous to allow the [plaintiff] to challenge the existence of probable cause for his arrest and incarceration for that same criminal charge"] (§ 1983 case); Powers v. Sickler, No. 93-617, 1995 WL 146272, at * 5 (N.D.N.Y. Mar. 31, 1995) ["[A] conviction is conclusive evidence of probable cause"]; see also Zurcher v. Bilton, 666 S.E.2d 224, 226-227 (S.C. 2008) [Plaintiff cannot maintain civil claim for false imprisonment where he has been convicted on the same underlying facts][false imprisonment case]; Jolly v. Doe, 551 S.E.2d 257, 259 (S.C. 2001) [same]; see also Roesch v. Otarola, 980 F.2d 850, 853-854 (2d Cir. 1992) [holding that requirement that plaintiff receive favorable termination applies equally to claims of false arrest, false imprisonment and malicious prosecution].
Defendants may contend (although not discussed in their memoranda) that a false "arrest" only applies to the time of the actual arrest, while false "imprisonment" is what would continue to run until the prisoner becomes held pursuant to legal process (at that time then converting over to a malicious prosecution claim). However, the Supreme Court in Wallace v. Kato, 549 U.S. 394 (2007), did not make that distinction, instead considering the two claims (false arrest and false imprisonment) under the same standard for determining when the claim ended, and a claim of malicious prosecution began. Wallace, 549 U.S. at 388-389; see also Kenley v. District of Columbia, 83 F.Supp.3d 20, 41 (D.D.C. 2015) [There is no real difference as a practical matter between false arrest and false imprisonment], citing Hernandez v. District of Columbia, 845 F.Supp.2d 117, 119, n. 7 (D.D.C. 2012); Morgan v. County of Nassau, 720 F.Supp.2d 229, 236 (E.D.N.Y. 2010) [Making no distinction between claims for false arrest and false imprisonment under § 1983]; Funke v. Coogle, No. 11-310, 2013 WL 209602 at * 8 (W.D.Ky. Jan. 17, 2013) (citing Dunn v. Felty, 226 S.W.3d 68, 71 (S.C.Ky. 2007)); Nerswick v CSX Transp., Inc., 692 F.Supp.2d 866, 882 (S.D.Ohio Feb. 19, 2010).
Plaintiff's false arrest/false imprisonment claims are also barred by Heck v. Humphrey, 512 U.S. 477 (1994), which precludes a claim for damages under § 1983 unless Plaintiff can establish that his criminal charges were dismissed or nolle prossed for reasons consistent with innocence. As such, in order to show a lack of probable cause for purposes of his false arrest/imprisonment claim so as to avoid the Heck bar, Plaintiff would need to have submitted evidence sufficient to give rise to a genuine issue of fact that he had received a favorable termination on his criminal charges. Roesch, 980 F.2d at 853-854 [Holding that requirement that Section 1983 plaintiff received favorable termination applies to claim of false arrest] [pre - Wallace]; Key v Miano, No. 11-1613, 2012 WL 5398194, at * 3 (D.S.C. Oct. 10, 2012) [same], adopted by 2012 WL 539819 (D.S.C. Nov. 2, 2012). However, although Plaintiff makes allegations in his Amended Complaint about a favorable determination on a charge of harassment, second, that charge is not otherwise addressed anywhere in the Complaint. Plaintiff also submitted portions of a transcript from a criminal trial from 2017 in which he highlights testimony from the Defendant Police Officers at that trial relating to Julie Welch's claims against him. See Plaintiff's Exhibit F [partial transcript from South Carolina v. Ryles, Case No. 2017-GS-08-598]. However, there is no evidence that that trial encompassed any of the charges at issue in this lawsuit.
Plaintiff apparently had two separate harassment second charges, as elsewhere in his Complaint (and in his brief opposing summary judgment) he complains about having been improperly convicted of a charge of harassment, second. He was charged with harassment, second, in 2014 [2014 AO820300843] and he was also charged in 2017 with harassment, first degree [2017GS080058], which included harassment, second, as a lesser included charge. Plaintiff was found guilty of the lesser included harassment, second, in his April 2017 trial [2017GS080058] and his earlier harassment, second, charges were nolle prossed.
In any event, to the extent that Plaintiff ever attempts to claim that any of the charges against him which were nolle prossed, were terminated in his favor [including the harassment, second degree charge [2014-A-0820300917], Plaintiff himself testified at his trial in April 2017 that as part of an earlier plea agreement he pled guilty to two charges and agreed not to have any more contact with Welch, so that he would be "done" with the other charges as part of this negotiated agreement. See Court Docket No. 32-8, pp. 20-21. That is not a favorable termination of a charge. See Washington v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997), cert. denied, 523 U.S. 1073 (1998) [finding that plaintiff has the burden of proving a favorable termination, and abandonment of proceedings does not indicate the innocence of the accused when the nolle prosequi results from an agreement or compromise with the accused].
The judicial records from the Berkeley County Court reflect that that trial (apparently) involved two consolidated charges. The charges consolidated at trial appear to be a harassment, first, which included a lesser degree charge of harassment, second, which Plaintiff was found guilty of at trial [See 2017-GS-0800598], and a charge of intimidation of witness [See 2016-GS-0802030], on which Plaintiff was found not guilty. See Court Docket No. 32-6, pp. 2-3. In any event, they were not the charges involved in this lawsuit. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008)[noting that some courts have found postings on government web sites as inherently authentic or self-authenticating]. Moreover, to the extent that Plaintiff is even attempting to make a claim with regard to the 2016 charge of intimidation of a witness [2016GA0802032], Plaintiff has not put forth any evidence and to show that the Defendants in this case were even involved in that charge.
Finally, while it is arguable that a claim for false arrest, as opposed to a claim for malicious prosecution, would not be barred by Heck if a finding that the claimant's arrest was "unlawful" based on a lack of probable cause would not call into question the validity of a subsequent conviction or sentence; cf. Brooks v. City v. City of Winston-Salem, 85 F.3d 178, 181-182 (4th Cir. 1996); but see Covington v. Turner, No. 12-2271, 2012 WL 6615222 at 2 (D.S.C. Nov. 14, 2012) [False arrest claim barred where Plaintiff has been indicted]; here Plaintiff plainly alleges that his arrest was due to false claims or accusations that had been made against him by the named police officer Defendants or the victim Julie Welch. As such, success on his false arrest claims would clearly call into question his subsequent convictions, which were based on those same accusations. See Washington, 127 F.3d at 557 ["The circumstances surround the cessation of the criminal proceedings must compel an inference that reasonable grounds to pursue the criminal prosecution were lacking"]. One other possible exception to Heck could be where a Plaintiff has yet to be convicted on the charges. See Simmons v. Beam, No. 15-3401, 2016 WL 4035457 at * 2 n. 7 (D.S.C. July 28, 2016) ["Although Heck does not apply to claims of false arrest in the pre-conviction context when criminal charges are still pending, see Wallace v. Kato, 549 U.S. 384, that is not the case here because Plaintiff has been convicted"]. However, as discussed hereinabove, Plaintiff was convicted on the charges related to this case.
Therefore, Plaintiff's federal claim for false arrest and/or imprisonment is without merit and should be dismissed.
Even if Plaintiff's false arrest/imprisonment claim was not otherwise barred for the reasons stated hereinabove, the evidence still does not establish a genuine issue of fact for trial. The Defendants clearly set forth the facts presented to them, supported by statements of the complaining witness and other documentary evidence, which establish probable cause for filing the charges at issue against the Plaintiff. See Taylors v. Waters, 81 F.3d 429, 434 (4th Cir. 1996)[In assessing the existence of probable cause, courts examine the totality of circumstances known to the officer at the time of the arrest]. Indeed, Plaintiff, in his affidavit attached to his response brief, admits his frequent contacts with Welch (although he contends they were authorized or justified), and further admits that he even pled guilty to two of the charges referenced by the Defendants. The evidence also shows that the police officers presented the information they had (all as is set forth in the evidence) to local judicial officers, who independently found that the allegations established probable cause for the charges. Cf. Messerschmidt v Millender, 565 U.S. 535, 546 (2012) ["[T]he fact that a neutral Magistrate has issued a warrant is the clearest indication that the officers acted " properly]; Taylor, 81 F.3d at 436, citing Baker v. McCollan, 443 U.S. 137, 142-146 (1979) [Holding that determination of probable cause by detached judicial officer that complies with Fourth Amendment constitutes all of the process due in order to constitutionally detain an accused pending trial]; Torchinsky v. Siwinski, 942 F.3d 257, 261-162 (4th Cir. 1991). Therefore, the underlying evidence does not support Plaintiff's claims for false arrest, even if these claims were not otherwise barred for the reasons stated hereinabove. Additionally, to the extent Plaintiff's false arrest claims encompass the separate claim of false imprisonment, those claims also fail based on the evidence provided. Jist v. Berkeley County Sheriff's Department, 521 S.E. 2d 163, 167 (S.C.Ct.App. 1999)[Restraint must have been unlawful to have a claim for false arrest or imprisonment]; Jones v. City of Columbia, 389 S.E.2d 662, 663 (S.C. 1990)["An action for false imprisonment cannot be maintained where one is arrested by lawful authority"].
State Law Claims
If the Court adopts the recommendation contained herein with respect to Plaintiff's sole federal cause of action, the only claims remaining in this case will be Plaintiff's two state law causes of action for malicious prosecution and abuse of process. Ordinarily, the undersigned would recommend remanding both of these state law claims back to state court for disposition. See Clark v. Brown, 861 F.2d 66, 68 (4th Cir. 1988)[Directing dismissal of state law claims on remand following dismissal of Plaintiff's federal § 1983 claim]; Mills v. Leath, 709 F.Supp. 671, 675-676 (D.S.C. 1988) [Noting that federal courts should generally decline to exercise pendant jurisdiction over remaining state law claims after dismissal of federal claims in a lawsuit].
However, with respect to Plaintiff's state law claim for malicious prosecution, the undersigned does not find it would serve the cause of judicial economy to remand this state law claim, as the law and evidence justifying dismissal of Plaintiff's federal claim for false arrest/imprisonment is essentially the same, and there would be no point in requiring the state courts to rehash this evidence. Cf. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970). [Noting that courts clearly have the right to take notice of their own files and records, and have no duty to grind the same corn a second time. Once is sufficient.]. Specifically, in order to maintain his state law claim for malicious prosecution, Plaintiff must show: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the insistence of, the defendant; (3) termination of such proceedings in Plaintiff's favor; (4) malice in instituting such proceedings; (5) want of probable cause; and (6) resulting injury or damage. Parrott v. Plowden Motor Co., 143 S.E.2d 607, 608 (S.C. 1965). As already noted, Plaintiff has not shown that the criminal charges at issue in this lawsuit have, at the present time, been terminated in Plaintiff's favor, and there is also no evidence of lack of probable cause in the bringing and prosecution of these charges. See, discussion, supra. Accordingly, Plaintiff's state law malicious prosecution claims as they relate to these charges should be dismissed. Parrott, 143 S.E.2d at 608; Law, 629 S.E.2d at 652 [In order to maintain a claim for malicious prosecution, Plaintiff must show (inter alia) a favorable termination of his criminal proceedings, and an "action for malicious prosecution fails if the Plaintiff cannot prove each of the required elements . . ."]; Brown v. Leonard, No. 08-39, 2008 WL 9832870, at * 2 (S.C.Ct.App. 2008); Roesch, 980 F.2d at 853-854 [holding that requirement that plaintiff receive favorable termination applies equally to claims of false arrest, false imprisonment and malicious prosecution]; Powers, 1995 WL 146272, at * 5 ["[A] conviction is conclusive evidence of probable cause"].
As previously noted, Plaintiff's claims for false arrest/imprisonment ceased at the point he was detained pursuant to legal process, with his claims going forward from that point being for malicious prosecution. Wallace, 127 S.Ct. at 1100; see also Singer, 63 F.3d at 117 (quoting Prosser and Keeton on Law of Torts § 119, pp. 885-886 (5th ed. 1984)["If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more. From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself"]).
Unlike a federal malicious prosecution claim, malice is an element of a state law claim for malicious prosecution under South Carolina common law. See Pallares v. Seinar, 756 S.E.2d 128, 131 (S.C. 2014). Malice is defined as "the deliberate intentional doing of an act without just cause or excuse". Law v. S. C. Depart. of Corrections, 629 S.E.2d 642, 649 (S.C. 2006) (internal cites omitted).; but see also McBride v. School District of Greenville County, 698 S.E.2d 845, 855 (S.C.Ct.App. 2010).
However, with respect to Plaintiff's abuse of process claim, this Court should decline to address that issue and instead remand that claim to state court for disposition. Abuse of process is a tort "intended to compensate a party for harm resulting from another party's misuse of the legal system". Pallares v. Seinar, 756 S.E.2nd 128, 133 (S.C. 2014), citing citing Food Lion, Inc. v. United Food & Commercial Workers Int'l. Union, 567 S.E.2d 251, 255, n. 5 (S.C.Ct.App. 2002). The essential elements of an abuse of process claim are 1) an ulterior purpose, and 2) a willful act in the use of the process that is not proper in the regular conduct of the proceeding. Pallares, 756 S.E.2d at 370. Here, Plaintiff alleges that the individual named Defendants caused his arrest and prosecution for ulterior purposes, including lying about his conduct, in order to have him charged and found guilty. As support, he has submitted the trial transcript from his 2017 case wherein (he contends) the police officer Defendants are shown not to have properly (and purposely) done their jobs in the way they investigated him and otherwise treated him. Even so, to sustain a claim for abuse of process, the evidence must show that the Defendants used an otherwise legitimate process to obtain a collateral objective not relating to that process, which "usually takes the form or coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club". Pallares, 756 S.E.2d at 370; see also Hainer v. Am. Med. Int'l., Inc., 492 S.E.2d 103, 107 (S.C. 1997) [Noting that the improper purpose usually takes the form of coercion to obtain a collateral advantage, and that "[t]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions"]. It is also not clear (Defendants do not address in their motion for summary judgment) whether the named natural Defendants or the Defendant City of Hanahan, or both, would be the proper party Defendant for this claim.
In their motion for summary judgment, Defendants seek dismissal of this claim, inter alia, on the ground that "the Defendants are entitled to immunity on all federal law claims". See Defendants' Brief, p. 11. However, this is not a federal law claim.
The undersigned believes it is more proper for the state courts to address these issues. In Carnegie-Mellon v. Cohill, 44 U.S. 343 (1988), the Supreme Court held that "in the ususal case in which all federal - law claims are eliminated before trial, the balance of factors to be considered under the pendant jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the remaining state law claims". Carnegie-Mellon, 44 U.S. at 350, n. 7. The "factors" the Court was referring to in Carnegie-Mellon are judicial economy, convenience, fairness, and comity. Here, comity favors a remand of this remaining claim as it would allow the more appropriate court to rule on whether summary judgment should be granted on this exclusively state law issue. United Mine Workers v. Gibbs, 383 U.S. 726 (1966) ["Certainly, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well"]. There are also no issues of judicial economy, convenience or fairness weighing against remand, as discovery has been completed and the Defendants' summary judgment motion has been briefed and is ready for decision by the state court on remand. Additionally, not only is the state court the more appropriate court to rule on this exclusively state law claim, but if summary judgment were to be denied on this claim (a decision which should be made by the state court), it would be much more appropriate for the state courts to then try this state law claim. Hence, the Carnegie-Mellon factors support remand of this claim. Moreover, in considering whether remand is appropriate, District Courts in the Fourth Circuit have also taken into consideration whether the complaint was originally filed in federal court. Spears v. Water & Sewage Auth. of Cabarrus Cty., No. 15-859, 2017 WL 2275011, at * 9 (M.D.N.C. May 24, 2017). Of course, here the case was not originally filed in federal court - rather, it was removed to this Court by the Defendants from the Plaintiff's preferred state court jurisdiction.
Therefore, if the Court adopts the recommendation herein for dismissal of Plaintiff's sole federal claim, it is recommended that Plaintiff's state law claim for malicious prosecution also be dismissed, as the disposition of that claim is based on the same reasoning and case law as Plaintiff's federal false arrest/imprisonment claim. However, with respect to Plaintiff's separate abuse of process claim, which requires a review and analysis of separate facts and law, that claim should be remanded back to state court for disposition. Carnegie-Mellon, 484 U.S. at 350, n. 7 ["[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the remaining state law claims."].
Conclusion
Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be granted with respect to Plaintiff's federal claim for false arrest/imprisonment brought pursuant to 42 U.S.C. § 1983, and that that claim be dismissed. Plaintiff's state law claim for malicious prosecution should also be dismissed for the reasons stated.
With respect to Plaintiff's remaining state law claim for abuse of process, that claim should be remanded back to state court for disposition. Clark, 861 F.2d at 68 [Directing dismissal of state law claims on remand following dismissal of Plaintiff's federal § 1983 claim].
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge October 29, 2018
Charleston, South Carolina
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
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).