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explaining that “a public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant; rather, at most, that official can be pursued through a cause of action for malicious prosecution” based on “an alleged lack of probable cause for seeking and issuing the warrant in the first instance”
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C. A. 4:22-cv-01861-MGL-MHC
09-21-2023
Leslie Tucker, Plaintiff, v. Robert B. Price, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Leslie Tucker (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. ECF No. 1. Defendant Robert B. Price (“Defendant”) filed a Motion to Dismiss, or in the alternative for Summary Judgment (“Motion”). ECF No. 31. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendant's Motion, Plaintiff filed a Response in Opposition. ECF No 35. Defendant filed a Reply. ECF No. 37. Plaintiff filed various letters, which the Court construes as Sur-Replies. See ECF Nos. 36, 38, 40, 41, 42. The matter is, therefore, ripe for review.
The Local Rules make no provision for Sur-Replies, and Plaintiff did not seek leave of the Court to file a Sur-Reply. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, because Plaintiff is proceeding pro se, the Court has considered the arguments in these myriad filings for purposes of ruling on Defendant's Motion.
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 Civil Rule 73.02(B)(2)(e) and (f) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff is a pretrial detainee at the Florence County Detention Center. Records from Florence County indicate that Plaintiff has a pending charge for murder (case number 2020A2110100706). See Florence County Twelfth Judicial Circuit Public Index, https://publicindex.sccourts.org/Florence/PublicIndex/PISearch.aspx [search case number listed above] (last visited Sept. 15, 2023).
This Court “may properly take judicial notice of matters of public record.” See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial notice is in noticing the content of court records.'”).
In his Complaint, Plaintiff alleges that his constitutional rights were violated because Defendant falsely arrested him for murder on September 24, 2020. ECF No. 1 at 5. Plaintiff asserts that Defendant, an investigator with the Florence County Sheriff's Office, lied to obtain an arrest warrant after Plaintiff refused to give a statement during a police interview. See ECF No. 1 at 5. He appears to claim that Defendant framed him, lied on a police report to wrongfully have him arrested, and falsified the murder charge. See ECF No. 8 at 1. Plaintiff alleges that Defendant took a false video and showed it to South Carolina Magistrate Judge Belinda Timmons to obtain the arrest warrant. ECF No. 1 at 5-6; ECF No. 8-1 at 1-2. Plaintiff further claims that his former lawyer, Caroline Lawson, told him that she talked with Defendant and that Defendant knew that Plaintiff was not the shooter or killer in the murder case. ECF No. 8 at 1-2. Plaintiff asserts that a videotape of the alleged incident will show that he is innocent.
Any references to the “Complaint” herein encompass Plaintiff's original Complaint (ECF No. 1) and Amended Complaint (ECF No. 8), which have been consolidated into one pleading. See ECF No. 11.
Plaintiff also alleged various claims against Judge Timmons, but she was previously dismissed from the action as a party Defendant. ECF Nos. 15, 22.
Plaintiff alleged various claims against Caroline Lawson, but she was also dismissed from the action as a party Defendant. ECF Nos. 15, 22.
Plaintiff and Defendant submitted in support of their positions a copy of the arrest warrant and supporting affidavit. ECF No. 1-1 at 1. The Affidavit, executed by Defendant, states:
On or about the date of 9/24/2020, the Defendant Leslie Tucker did commit the act of murder. The Defendant along with a Co-Defendant did shoot and kill the Victim in front of 902 W. Lucas Street, Florence SC, which is located in Florence County. The Defendant and Co-Defendant did converge on the Victim before shooting him one time in the head. Both Defendants can be witnessed on video surveillance. Case Number 2020-09-0486.
ECF No. 1-1 at 1. The arrest warrant was executed by Judge Timmons, wherein she found probable cause for Plaintiff's arrest and directed Defendant to arrest Plaintiff. ECF No. 1-1 at 1.
Plaintiff and Defendant also submitted an investigation report drafted by the Defendant. ECF No. 1-1 at 2-3. The report documents the investigation performed by Defendant and other officers of the Florence County Sherriff's Office. The arrest warrant, supporting affidavit, and ultimate indictment for murder were based on facts discussed in the investigation report.
On October 7, 2021, a Florence Country Grand Jury issued a True Bill of Indictment against Plaintiff for Murder. ECF No. 31-3. The criminal case is still ongoing. See Florence County Twelfth Judicial Circuit Public Index, https://publicindex.sccourts.org/Florence/PublicIndex/ PISearch.aspx [search case number listed above] (last visited Sept. 15, 2023). Plaintiff requests monetary damages and release from his murder charge. ECF No. 1 at 6.
II. LEGAL STANDARD
Defendant moves for dismissal of the Complaint pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 31.
A. Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). Pursuant to Rule 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “Lack of subject-matter jurisdiction may be raised at any time by a party or the court.” Hoblick v. United States, 526 F.Supp.3d 130, 132 (D.S.C. 2021), aff'd, No. 22-1430, 2023 WL 5275907 (4th Cir. Aug. 16, 2023).
Generally, a defendant may challenge subject matter jurisdiction in one of two ways: “(1) by contending that a complaint fails to allege facts upon which subject matter jurisdiction can be based (a ‘facial challenge') or (2) by contending that the jurisdictional allegations made in the complaint are not true (a ‘factual challenge').” Lutfi v. United States, 527 Fed.Appx. 236, 241 (4th Cir. 2013) (citing Kerns v. United States, 585 F.3d 187, 192-93 (4th Cir. 2009)). In a facial challenge, the plaintiff is given the same procedural protections he would normally receive when faced with a motion to dismiss for failure to state a claim under Rule 12(b)(6). Id. “Namely, all alleged facts are taken as true and the motion will be denied if the complaint alleges facts that, if proven, would be sufficient to sustain jurisdiction.” Id.
On the other hand, in a factual challenge, a court may “go beyond the allegations of the complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional allegations.” Id. (citation omitted). “In that situation, the presumption of truthfulness normally accorded a complaint's allegations does not apply, and the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not analogous to a “probability requirement,” rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
C. Rule 56
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendant argues dismissal is appropriate because (1) he is entitled to sovereign immunity under the Eleventh Amendment, and (2) Plaintiff has failed to show a violation of this Fourth Amendment rights. The Court agrees and recommends that Plaintiff's claims be dismissed pursuant to Rule 12(b)(6) for failure to state a claim.
A. Eleventh Amendment
Defendant maintains that, to the extent Plaintiff's claims are brought against him in his official capacity, sovereign immunity protects him from such claims. See ECF No. 31 at 1, 5-6, 11. The Court agrees.
Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
Here, it is undisputed that Defendant was a state official, as he was serving as an investigator for the Florence County Sheriff's Office. Therefore, to the extent Plaintiff is suing Defendant in his official capacity, Defendant enjoys Eleventh Amendment immunity from suit in federal court. See McIlweine v. Harris, No. CIVA 4:07-1117 CMCTE, 2008 WL 2909358, at *12 (D.S.C. July 22, 2008) (noting South Carolina Sheriffs and their employees are state agents who are not amenable to suit in federal court by virtue of the Eleventh Amendment); see also Muhammad-Ali v. Klans, No. CV 1:15-308-MGL-SVH, 2015 WL 11109836, at *3 (D.S.C. Aug. 13, 2015) (“The Aiken County Sheriff's Department is also entitled to Eleventh Amendment Immunity. Sheriff's departments in South Carolina have repeatedly been held to be exempt from § 1983 liability, as they are considered state agencies.”), report and recommendation adopted sub nom. Muhammad-Ali v. Ku Klux Klan, No. CV 1:15-308-MGL, 2015 WL 11108438 (D.S.C. Sept. 22, 2015).
Defendant has also moved for dismissal under Rule 12(b)(1). See ECF No. 31 at 1, 5-6, 11. Although the text of the Eleventh Amendment may suggest a limitation on subject-matter jurisdiction, “Eleventh Amendment immunity does not limit a federal court's subject-matter jurisdiction.” See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 48083 (4th Cir. 2005) (discussing Eleventh Amendment immunity's shared attributes of both subject matter jurisdiction and personal jurisdiction, and noting that Eleventh Amendment immunity “may be waived by the state altogether”). Indeed, given “the potential for waiver, the [Supreme] Court has stated that the Eleventh Amendment ‘does not automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so.'” Id. at 481 (citation omitted). Accordingly, the recommendation for granting Defendant's Motion is pursuant to Rule 12(b)(6).
Additionally, for purposes of § 1983, Defendant-in his official capacity-is not considered a “person” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991).
B. Fourth Amendment
Liberally construing Plaintiff's Complaint, Plaintiff's claims against Defendant are for False Arrest and Malicious Prosecution. See ECF Nos. 1, 8. “Section 1983 actions premised on malicious prosecution, false arrest, and/or false imprisonment are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment.” Phillips v. Campbell, No. 6:20-CV-04447-DCC-KFM, 2021 WL 11485284, at *3 (D.S.C. Apr. 5, 2021). Thus, at their core, Plaintiff's claims are an allegation that his Fourth Amendment rights have been violated. See Lambert v. Williams, 223 F.3d 257, 262 (4th Cir. 2000) (stating “there is no such thing as a ‘§ 1983 malicious prosecution' claim,” rather, “a ‘malicious prosecution' claim . . . is simply a claim founded on a Fourth Amendment seizure that incorporates elements of the analogous common law tort of malicious prosecution-specifically, the requirement that the prior proceeding terminate favorably to the plaintiff'); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (noting false arrest and false imprisonment claims “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”). For the reasons that follow, Plaintiff has failed to state a § 1983 claim for a violation of his Fourth Amendment rights.
1. False arrest
Plaintiff maintains that he was falsely arrested by Defendant. ECF No. 1 at 5-6; ECF No. 8-1 at 2. To maintain a claim for false arrest or imprisonment under § 1983, a plaintiff must demonstrate that he was arrested without probable cause. Sowers v. City of Charlotte, 659 Fed.Appx. 738, 739 (4th Cir. 2016). However, the Fourth Circuit has held that “a public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant;” rather, at most, that “official can be pursued through a cause of action for malicious prosecution.” Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998). In other words, the “distinction between malicious prosecution and false arrest in this situation is whether the arrest was made pursuant to a warrant.” Dorn v. Town Of Prosperity, 375 Fed.Appx. 284, 286 (4th Cir. 2010). This means that a claim for false arrest “must fail where it is made pursuant to a facially valid warrant.” Id. (citation and internal quotation marks omitted)); see also Porterfield, 156 F.3d at 568 (noting “a claim for false arrest may be considered only when no arrest warrant has been obtained” (emphasis added)).
Here, Plaintiff acknowledges that he was arrested pursuant to a warrant, which he attached to his Complaint. ECF No. 1-1 at 1. Defendant argues, and the Court agrees, it is a facially valid warrant that sets forth the necessary information required for a warrant in South Carolina. See ECF No. 31 at 8-9. Plaintiff does not argue or contend that the warrant did not facially conform to constitutional requirements. Accordingly, Plaintiff's false arrest claim fails as a matter of law. See, e.g., Williams v. Saluda Cnty. Sheriff's Off., No. 8:12-CV-03212-JMC, 2013 WL 2416319, at *4 (D.S.C. June 3, 2013) (finding Plaintiff failed to state a § 1983 claim for false arrest because he was arrested pursuant to a warrant, even though the Amended Complaint alleged that “‘Officer Lt. Charles B. Padget . . . falsified his arrest warrants' when Plaintiff was arrested and detained”); Rouse v. Nessel, No. 8:20-CV-00954-DCC-JDA, 2020 WL 6279198, at *4 (D.S.C. July 6, 2020) (“Plaintiff alleges that he was arrested pursuant to a warrant, and he has filed a copy of the arrest warrant. Because Plaintiff was arrested pursuant to a facially valid warrant, his claim for false arrest is without merit.” (internal citations omitted)), report and recommendation adopted, No. 8:20-CV-00954-DCC, 2020 WL 4435189 (D.S.C. Aug. 3, 2020).
The various documents attached to Plaintiff's Complaint may be considered without converting a Rule 12(b) motion to dismiss into one for summary judgment. See Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (holding “that when a defendant attaches a document to its motion to dismiss, a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity” (citation and internal quotation marks omitted)).
Consequently, at most, Plaintiff “can allege only ‘a cause of action for malicious prosecution' based on an alleged lack of probable cause for seeking and issuing the warrant in the first instance.” Dorn, 375 Fed.Appx. at 286 (citation omitted); see also Brooks v. City of Winston-Salem, N.C. , 85 F.3d 178, 182 (4th Cir. 1996) (“However, allegations that an arrest made pursuant to a warrant was not supported by probable cause, or claims seeking damages for the period after legal process issued, are analogous to the common-law tort of malicious prosecution.”). As Plaintiff was arrested pursuant to a facially valid arrest warrant, Plaintiff's claim of “false arrest” is more properly framed as a malicious prosecution claim. See Williams, No. 8:12-CV-03212-JMC, 2013 WL 2416319, at *4 (liberally construing Plaintiff's claim as a malicious prosecution claim where the Amended Complaint alleged that “Lt. Charles B. Padget unlawfully falsified his statements against [Plaintiff] about possession of a firearm” in the arrest warrants, and that Plaintiff was “still [in] lock-up due to these false and fabricated lies and statements”). However, as set forth below, Plaintiff's claim for malicious prosecution fails, as a matter of law, at this time.
2. Malicious prosecution
Plaintiff maintains that he is being maliciously prosecuted for murder. Specifically, Plaintiff argues that he was arrested without probable cause and suggests that Defendant lied in the warrant affidavit that Judge Timmons ultimately signed. See ECF No. 1 at 5-6; ECF No. 8-1 at 2. Defendant argues that Plaintiff cannot satisfy the requirements for a malicious prosecution claim. The Court agrees with Defendant.
To establish a malicious prosecution claim under § 1983, the Fourth Circuit has required that (1) the defendant “seized plaintiff pursuant to legal process that was not supported by probable cause” and (2) “that the criminal proceedings have terminated in plaintiff's favor.” Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012) (quoting Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)); see also Williams, No. 8:12-CV-03212-JMC, 2013 WL 2416319, at *4 (“To state a viable claim for a seizure with a warrant that violated Plaintiff's Fourth Amendment rights, Plaintiff must demonstrate that he was arrested pursuant to a warrant not supported by probable cause and that the criminal proceedings against him terminated in his favor.”).
Here, Plaintiff's malicious prosecution claim fails as to the second element, because it is premature. Indeed, the murder charge for which Plaintiff was arrested is still pending against him. See Florence County Twelfth Judicial Circuit Public Index, https://publicindex.sccourts.org/Florence/PublicIndex/PISearch.aspx [search case number listed above] (last visited Sept. 15, 2023). Thus, any malicious prosecution claim has yet to accrue, as Plaintiff's criminal proceeding has not been terminated in his favor. See McDonough v. Smith, 139 S.Ct. 2149, 2160 (2019) (noting that, although the injury caused by a malicious prosecution claim occurs as soon as legal process is brought against a defendant, “favorable termination remains the accrual date”); Taylor v. Himes, No. CV 1:21-4036-MGL-PJG, 2022 WL 4001185, at *1 (D.S.C. June 13, 2022) (“Precedent holds that a Fourth Amendment claim based on malicious prosecution does not accrue until the prosecution ends.”), report and recommendation adopted, No. CV 1:21-4036-MGL-PJG, 2022 WL 4000843 (D.S.C. Sept. 1, 2022).
Consequently, even if the Court were to consider Plaintiff's arguments as to probable cause and whether Defendant allegedly lied to obtain the arrest warrant, Plaintiff is not able to maintain his malicious prosecution claim regarding his criminal case because that criminal case is ongoing. See Williams, No. 8:12-CV-03212-JMC, 2013 WL 2416319, at *4 (“The charges on which Plaintiff was arrested are currently pending against Plaintiff. Obviously, Plaintiff's criminal proceeding has not been terminated in his favor. Consequently, Plaintiff's Complaint fails to state a plausible malicious prosecution-type Fourth Amendment claim and should be summarily dismissed.”); Rouse, No. 8:20-CV-00954-DCC-JDA, 2020 WL 6279198, at *5 (“Because the Complaint does not allege that criminal proceedings have terminated in Plaintiff's favor, the Complaint does not state a claim for malicious prosecution.”), report and recommendation adopted, 2020 WL 4435189. Accordingly, Plaintiff has failed to state a claim upon which relief may be granted at this time; thus, Plaintiff's claims should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim.
To the extent Plaintiff's claims can be interpreted as asserting state law claims for false arrest or malicious prosecution against Defendant, the undersigned recommends declining to exercise jurisdiction over any state law claims. See 28 U.S.C. § 1367(c)(3) (providing “district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (noting, “in 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-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims”).
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion, ECF No. 31, be GRANTED pursuant to Rule 12(b)(6) and that Plaintiff's action be dismissed WITHOUT prejudice.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
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).