Opinion
C/A No.: 3:19-1934-JMC-SVH
06-24-2020
Jerome Garcia, Plaintiff, v. Danny Brown and Addy Perez, in their individual capacities, Defendants.
REPORT AND RECOMMENDATION
Jerome Garcia ("Plaintiff"), proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983 against officer Danny Brown ("Brown") and Adelyn Perez ("Perez"), both in their individual capacities, (collectively, "Defendants"), alleging violation of his rights regarding a stop and search of his vehicle on December 16, 2017.
This matter is before the court on Defendants' motion for summary judgment [ECF No. 49]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) ["Roseboro order"], the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 50]. The motion having been fully briefed [ECF Nos. 55, 62], it is ripe for disposition. Also before the court is Defendants' motion to be excused from the mediation requirement. [ECF No. 58].
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). Because the summary judgment motion is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends granting Defendants' motion for summary judgment and denying Defendants' motion to be excused from the mediation requirement as moot. I. Factual Background
Taking the facts in a light most favorable to Plaintiff, on December 16, 2017, at about 8:40 p.m., Brown, a deputy with the Richland County Sheriff's Department ("RCSD") was conducting a visibility patrol at a Walmart store ("Walmart") located at 10060 Two Notch Road in Richland County, South Carolina. [ECF No. 49-2 ¶¶ 9-12]. Brown was accompanied by Perez, also a deputy. Id. ¶¶ 23-24. Defendants were members of the Community Action Team ("C.A.T.") program, the community-oriented policing unit with the RCSD. Id. ¶¶ 5, 6, 24.
In this Circuit, verified complaints by pro se litigants are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991). However, neither Plaintiff's complaint, amended complaint, second amended complaint, nor his response to Defendants' motion is verified. [See ECF Nos. 1, 11, 30, 55]. The court includes Plaintiff's allegations for background purposes, but is constrained to not consider these allegations in resolving Defendants' motion for summary judgment. See, e.g., Causey v. Balog, 162 F.3d 795, 803 n.4 (4th Cir. 1998) ("Because we cannot assess whether Causey had first hand knowledge of these facts or whether he is competent to testify to them, we cannot consider them in our review."); Gordon v. Watson, 622 F.2d 120, 122-23 (5th Cir. 1980) (reversing district court's reliance on pro se plaintiff's unsworn, unverified response in granting summary judgment, but noting "had [the response] been sworn it would have raised a genuine issue [of] material fact"). As Plaintiff was informed in the Roseboro order, "Rule 56(c) requires that you support your version of all disputed facts with material such as depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. Your failure to support facts in dispute with such material may result in the court granting the motion." [ECF No. 50 at 2].
According to Brown, he had been conducting visibility patrols through commercial businesses due to the holiday and the number of people out shopping. [ECF No. 49-2 ¶ 12].
According to Defendants, the purpose of the C.A.T. program is to allocate a group of specialized, highly trained officers to utilize community-oriented policing methods and resolve law enforcement problems that arise in the various communities of Richland County. [ECF No. 49-2 ¶ 7].
When Defendants arrived at the Walmart parking lot area, Brown observed a stationary Chevy sport utility vehicle ("SUV") at the far edge of the parking lot, "backed in" and isolated from other vehicles or foot traffic. Id. ¶¶ 13-14. As Brown drove toward the SUV, he saw movement in the driver's seat. Id. ¶ 15. Brown's patrol headlights shone on the SUV, and Brown observed an occupant in the driver's seat, appearing to sit up. Id. ¶ 16. Brown began to investigate the reason the SUV had been so distantly parked in the lot and whether his assistance was warranted. Id. ¶ 17. As Brown exited his vehicle, he observed the occupant reaching around inside the SUV "in a furtive manner." Id. ¶ 18.
Next, Brown "approached and identified [him]self and could immedia[tely] smell marijuana coming from the vehicle." [ECF No. 49-3]. Brown asked Plaintiff to step out of the vehicle. [ECF No. 49-2 ¶ 22]. Brown conducted an outer clothing pat down of Plaintiff's person to ensure he did not have any weapons on him. Id. Perez began an interior search of his vehicle as a result of Defendants' belief that marijuana was located inside the car. Id. ¶ 23. During this time, Plaintiff was "very irate" and questioned the lawfulness of the officers' actions. Id. ¶ 25. Plaintiff stated that he had a medical marijuana card from California and that marijuana was not a crime. Id. Brown advised him that in South Carolina any possession of marijuana was illegal. Id. ¶ 26.
In Brown's affidavit, he states instead that when he "was approximately six feet from the SUV, [he] could smell marijuana coming from the SUV." [ECF No. 49-2 ¶ 19]. Taking facts in light most favorable to Plaintiff, the court will adopt the above version of events found in Brown's incident report. [See ECF No. 49-3].
According to Plaintiff, when he saw Defendants' emergency lights, he exited the vehicle. [ECF No. 30 at 1, ECF No. 55 at 3]. Plaintiff alleges that Brown asked if he was ok or if his car had problems, and Plaintiff responded that he does not "speak to law enforcement, a reason of self-incrimination, especially without probable cause of a crime." [ECF No. 30 at 2]. Plaintiff states at this point Brown said he could smell the odor of marijuana. Id. According to Plaintiff, "[a]ny smell came from outside of the car." [ECF No. 55 at 3-4].
Plaintiff was informed of his Miranda rights. Id. Plaintiff repeatedly insisted that he was not doing anything illegal. Id. ¶ 27. Plaintiff also told Brown that he had recently received a citation a few days earlier for possession of marijuana from another RCSD deputy. Id. ¶ 27. Defendants located the previous citation in Plaintiff's wallet. Id.
Brown then conducted an interior search of the vehicle for marijuana or other illegal narcotics or any criminal activity. Id. ¶ 28. Plaintiff continued to become "increasingly irate" and was placed in handcuffs while Brown conducted a search. Id. ¶¶ 29-30. Perez talked with Plaintiff during this time, and Plaintiff appeared to calm down. Id. ¶ 31.
Brown's search of the vehicle revealed a baggie of marijuana, two pipes, and a grinder with marijuana located in the driver's seat area. Id. ¶ 32. He also located a purported medical marijuana identification card issued in California. [ECF No. 30 at 2, ECF No. 49-1 at 3].
Throughout the encounter, "Live PD" television employees were present. [ECF No. 49-2 ¶ 38]. According to Defendants, "[t]hese television personnel were in the area solely in a capacity to document the events and circumstances of our jobs as Sheriff's deputies." Id.
According to Defendants, because Plaintiff indicated he was in the Columbia area to visit his children, he was not arrested. Id. ¶ 33. He was cited for possession of marijuana and released. Id. Defendants thereafter transmitted the evidence for processing. Id. ¶ 34. On December 21, 2017, the plant material was tested, revealing marijuana weighing 2.617 grams. [ECF No. 49-2 ¶ 34, ECF No. 49-4 at 2].
Plaintiff alleges that at some point during this encounter, Brown stated to the Live PD audience "look, we don't know if he's lying in wait to rob someone," and that Plaintiff had committed a crime. [ECF 30 at 2 and 4, ECF No. 55 at 7-8]. Plaintiff further states that Brown informed him he would only receive a ticket because Plaintiff, like Defendants, is former military, thus warranting "special treatment." [ECF No. 55 at 7-8].
According to Defendants, following this event, Body Worn Camera ("BWC") videos for Brown and Perez were not maintained on the RCSD BWC server, as body camera protocols were relatively new at the time of the 2017 incident, and "[u]nless a video was specifically categorized, titled or assigned a case number, the system did not save the video and thereafter deleted in ninety (90) days." [ECF No. 49-2 ¶ 35; ECF No. 49-5 at 2 (indicating footage was deleted on March 24, 2018)]. II. Discussion
Defendants represent that "the only video or footage depicting these events were captured by the 'Live PD' television crew. Any and all 'Live PD' footage aired on December 16, 2017, upon information and belief, was roughly 7:23 in length and is presently retrievable in the below hyperlink: See, https://ql.mediasilo.com/#ql/5d66e2f6e4b00a00bd356982/5c0994e4-a074-4bf8-9c77-5ca9e4f3fe90." [ECF No. 49-1 at 3 n.2].
A. Standard on Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
The court initially addresses the preliminary matter of the video footage taken the night of the incident in question, including the BWC videos and the Live PD videos.
Regarding the BWC videos, as stated above, Defendants represent this footage has been erased. Plaintiff makes multiple allegations concerning this footage in his opposition to Defendants' motion. [See ECF No. 55]. However, the court has previously addressed this issue, denying Plaintiff's motion to compel production of this footage "[b]ecause Plaintiff's discovery request was untimely and because the requested discovery was deleted." [ECF No. 56 at 2]. Although Plaintiff asserts this footage was "purposely destroyed," [ECF No. 55 at 1], there is no evidence in the record supporting Plaintiff's position.
Regarding the Live PD videos, both parties argue this footage supports their respective positions and should be considered by the court, notwithstanding the incomplete nature of the footage. [See, e.g., ECF No. 49-1 at 16 n.7 (Defendants stating "[t]his Court is urged to view these facts as they are depicted in the video footage, albeit unfortunately abridged in its present form"), ECF No. 55 at 7 (Plaintiff recognizing the video is "partial and misleading," but "[e]ven in this clip shows my stance of their infringement upon me")].
Plaintiff also references the "Live PD Podcast #213," based on the Live PD show, [see, e.g., ECF No. 55 at 7], although Plaintiff does not indicate how this podcast relates to his claims currently pending before this court.
However, the Live PD video footage has not been submitted to the court, only a website address. Neither party has addressed issues of authentication, nor indicated the Federal Rule of Evidence under which a website address may be considered by the court for purposes of resolving Defendants' motion for summary judgment. See Oglesby v. Brown, C/A No. 8:19-00016-SAL, 2020 WL 2936678, at *5 (D.S.C. June 3, 2020) (citing Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 535 (D. Md. 2007)) ("[T]o be entitled to consideration on summary judgment, the evidence supporting the facts set forth by the parties must be such as would be admissible in evidence"); Nestle Prepared Foods Co. v. Pocket Foods Corp., C/A No. A04-02533-MSK-MEH, 2006 WL 2990208, at *7 (D. Colo. Oct. 19, 2006) ("The only evidence submitted in support of this defense are references in the motion to website addresses and printouts of computer screenshots of various websites. There are no accompanying affidavits or other evidence which would lay the appropriate foundation to make references to the website addresses or screenshots admissible under the Federal Rules of Evidence."). Indeed, issues of authentication appear significant in this instance where both parties agree the footage has been edited for the purposes of the show and where Plaintiff further alleges that the footage is "doctored." [See, e.g., ECF No. 48 at 1].
Accordingly, the court declines to consider this evidence, which falls short of the requirements necessary to be considered as part of the summary judgment determination.
Even if the court were to consider the video footage, neither party indicates with specificity the facts relevant to the resolution of the instant motion are addressed by the footage. The court notes the footage begins after Plaintiff had been handcuffed, and sheds no light on the interaction between the parties leading up to this moment. Therefore, even if this footage were admissible, it appears of limited relevance to the issues to be resolved.
1. Fourth Amendment Claim
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. The Supreme Court has identified three categories of police-citizen encounters, and, as summarized by the Fourth Circuit:
Each category represents differing degrees of restraint and, accordingly, requires differing levels of justification . . . . First, "consensual" encounters, the least intrusive type of police-citizen interaction, do not constitute seizures and, therefore, do not implicate Fourth Amendment protections. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Second, brief investigative detentions-commonly referred to as "Terry stops"—require reasonable, articulable suspicion of criminal
activity. [Terry v. Ohio, 392 U.S. 1, 21 (1968)]. Finally, arrests, the most intrusive type of police-citizen encounter, must be supported by probable cause. Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2006).Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451, 460 (4th Cir. 2013). Additionally, "the police can search a vehicle without first obtaining a warrant if they have probable cause to believe the car contains contraband or evidence of illegal activity." United States v. Johnson, 410 F.3d 137, 143 (4th Cir. 2005).
Regarding the second category above and under Terry's framework for investigative detention, an officer is required "to have a reasonable suspicion that criminal activity is afoot before he may conduct a brief investigatory stop of a person . . . ." U.S. v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000) (citation omitted). "The standard is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Id. at 359 (citation omitted).
Additionally, under the qualified immunity defense, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) ("Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.").
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
a. Initial Encounter
First, Defendants did not need reasonable suspicion to approach Plaintiff's vehicle. As stated by the Fourth Circuit:
Here, Loconti did not need an articulable suspicion to get out of his patrol vehicle, approach McCoy, inform McCoy that he was an officer, and ask to speak with him. Although many members of the public might feel uncomfortable when an officer approaches them in this manner and asks to speak with them, uncomfortable does not equal unconstitutional.United States v. McCoy, 513 F.3d 405, 411 (4th Cir. 2008); see also United States v. Lewis, 606 F.3d 193, 198 (4th Cir. 2010) ("The officers were thus entitled to approach Lewis, who was sitting in his parked car, late at night."); Santos, 725 F.3d at 460-61 ("An encounter generally remains consensual when, for example, police officers engage an individual in routine questioning in a public place.").
Plaintiff argues he knew he "was under a custodial arrest" when Defendants approached with "blue emergency lights on," [ECF No. 30 at 1], and case law lends support to Plaintiff's position. See United States v. Duty, 204 F. App'x 236, 239 (4th Cir. 2006) ("Winston seized Duty for purposes of the Fourth Amendment when she activated the emergency lights on top of her car and pulled behind the parked car in which Duty was sitting. Through this action, Winston displayed an unmistakable show of authority that would give a reasonable person the impression that he was not free to leave."). However, as stated above, Plaintiff has failed to submit admissible evidence in support of his position, and Defendants deny any blue lights were on, [see ECF No. 34 ¶ 5], instead attesting to the use of headlights and a flashlight, [see ECF No. 49-2 ¶¶ 16, 19].
Plaintiff also argues he was lawfully situated in the parking lot at the time of his encounter with the Defendants, stating "Walmart has a clear policy of using the parking lot as a SAFE ZONE for overnight parking for citizens traveling. This policy is ignored by Danny Brown, and Addy Perez, to claim ignorance of this policy is no excuse, because I confirmed this fact before using the parking lot." [ECF No. 55 at 5]. However, Plaintiff provides no evidence that either the Walmart in question opened its lot to traveling citizens for overnight parking or that he had previously obtained permission to park in such a manner.
Following the initial approach to the vehicle, Brown "identified [him]self and could immedia[tely] smell marijuana coming from the vehicle," [ECF No. 49-3], and asked Plaintiff to step out of the vehicle. [ECF No. 49-2 ¶ 22]. Brown directing Plaintiff to step out of his vehicle indicates that a "consensual encounter became a Fourth Amendment seizure." See Santos, 725 F.3d at 462 (citing United States v. Jones, 562 F.3d 768, 774 (6th Cir.2009)) (holding that individuals were seized for purposes of the Fourth Amendment when they "passively acquiesced" in response to officer's show of authority). A police-citizen encounter rises to the level of a Fourth Amendment "seizure" when "the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Id. at 460 (citation omitted).
Having concluded the Plaintiff was seized when directed to exit his car, the court turns to whether Defendants violated Plaintiff's constitutional rights when Perez initially searched his car, Brown searched his car again, Plaintiff was placed in handcuffs, and Defendants issued Plaintiff a criminal citation.
b. Initial Search
Although Plaintiff argues otherwise, the Fourth Circuit has consistently held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place. See United States v. Cephas, 254 F.3d 488, 495 (4th Cir. 2001) (holding "a strong smell of marijuana coming from the apartment . . . would almost certainly have given Sergeant Shapiro probable cause to believe that contraband—marijuana—was present in the apartment"); United States v. Scheetz, 293 F.3d 175, 184 (4th Cir. 2002) (holding the smell of marijuana emanating from a properly stopped automobile constituted probable cause to believe that marijuana was in the vehicle, justifying its search); see also United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004) ("While smelling marijuana does not assure that marijuana is still present, the odor certainly provides probable cause to believe that it is. Thus, when marijuana is believed to be present in an automobile based on the odor emanating therefrom, we have found probable cause to search the automobile . . . ."); Lewis, 606 F.3d at 198 ("When Lewis rolled down his window to comply, Mills smelled the odor of marijuana emanating from the vehicle. At that point, the officers possessed probable cause to search the vehicle . . . . and they were entitled to order Lewis out of the vehicle while their search was accomplished . . . . ").
As argued by Plaintiff, marijuana has "many medical uses," and Defendants appear to concede that a purported medical marijuana identification card issued in California was found in Plaintiff's vehicle. [ECF No. 55 at 9, ECF No. 49-1 at 3]. Notwithstanding, the Fourth Circuit has rejected the argument that a probable cause analysis is altered by some states legalizing the use of marijuana in some instances, holding that "[t]he odor of marijuana alone provides probable cause . . . . This is especially the case so long as marijuana possession is prohibited by federal law, without exception." United States v. Mitchell, 720 F. App'x 146, 152 (4th Cir. 2018) (citing 21 U.S.C. § 841(a)(1)).
There is no dispute that Brown smelled the odor of marijuana prior to the pat down of Plaintiff and the initial search of Plaintiff's vehicle, and therefore, under the above case law, Defendants' initial search of Plaintiff's vehicle did not offend the Fourth Amendment.
To the extent Plaintiff challenges the pat down he received prior to the initial search of his vehicle, but following Brown detecting the odor of marijuana, the Fourth Circuit has held "under our precedent, an officer who has reasonable suspicion to believe that a vehicle contains illegal drugs may order its occupants out of the vehicle and pat them down for weapons." United States v. Rooks, 596 F.3d 204, 210 (4th Cir. 2010).
c. Second Search
Although the court has limited evidence as to why, following Perez's search of Plaintiff's vehicle, Brown conducted a second search. As testified by Brown:
At this time and as a result of our belief that marijuana was located inside the car, . . . Perez conducted an interior search of his vehicle . . . . He repeatedly insisted that he was not doing anything illegal. He also told me that he had just received a citation a few days earlier for marijuana possession from another RCSD deputy. We located this other citation in his wallet. I then performed an interior search [of] the vehicle in order to ascertain whether Plaintiff was in possession of marijuana, or potentially any other illegal narcotics, or evidence of any other criminal activity.[ECF No. 49-2 ¶¶ 23, 27-28]. It is in this second search that Brown located "a baggie of marijuana, two (2) pipes and a grinder with marijuana," located in the area of the driver seat. Id. ¶ 32.
Although Plaintiff argues the motivation for the second search was improper, [ECF No. 30 at 2 ("Brown gets upset with my claims [that Plaintiff is committing no crime], and repeats another search of my car, possibly in hopes to find anything that would make me a criminal")], Plaintiff offers no evidence is support of his position. Instead, as stated by the Supreme Court, police may search car incident to lawful arrest when "it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle," Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009), and the facts in the record do not indicate that the search was unreasonably prolonged, see, e.g., United States v. Sharpe, 470 U.S. 675, 687-88 (1985) ("We reject the contention that a 20-minute stop is unreasonable when the police have acted diligently and a suspect's actions contribute[d] to the added delay about which he complains.").
There is no admissible evidence in the record indicating that the second search conducted by Brown violated Plaintiff's Fourth Amendment rights.
d. Investigative Detention
Plaintiff was placed in handcuffs during the second search of Plaintiff's vehicle, conducted by Brown. Plaintiff does not dispute Defendants' allegations that he became increasingly irate as the encounter progressed. Additionally, according to Brown, a considerable factor in placing Plaintiff in handcuffs during Brown's search of Plaintiff's car was officer safety given Plaintiff's angry demeanor, the physical disparity in size between Plaintiff and Perez, and that Plaintiff was left one-on-one with Perez while Brown's attention was directed inside the car. [ECF No. 49-2 ¶ 30].
According to Defendants, and not disputed by Plaintiff, Plaintiff was at the time of the stop 6'0" and 205 lbs. and Perez 5'3" and 130 lbs. [ECF No. ¶ 49-2 30].
During Terry stops, "officers may take steps reasonably necessary to maintain the status quo and to protect their safety . . . ." United States v. Sinclair, 983 F.2d 598, 602 (4th Cir. 1993); see also United States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003) ("[T]he use of handcuffs did not convert the encounter into a custodial arrest because the use was reasonably necessary to protect the officer's safety."). Here, Defendants' actions in placing Plaintiff in handcuffs during the second search did not violate Plaintiff's Fourth Amendment rights.
e. Criminal Offense Charge
In South Carolina, it is illegal for a person to "knowingly or intentionally" possess a controlled substance. S.C. Code Ann. § 44-53-370(c). "The State must show that the defendant both: (1) had possession of marijuana; and (2) intended or knew that he had marijuana in his possession." State v. Mollison, 459 S.E.2d 88, 91 (S.C. Ct. App. 1995).
Here, taking facts in light most favorable to Plaintiff, Plaintiff had knowing and actual possession of marijuana in his possession, and Defendants could issue a citation to Plaintiff on that basis. See S.C. Code Ann. § 17-13-30 ("[D]eputy sheriffs of this State may arrest without warrant any and all persons who, within their view, violate any of the criminal laws of this State if such arrest be made at the time of such violation of law or immediately thereafter.").
Plaintiff takes issue with the citation he received because, in writing the citation, Brown "wrote a ticket furnishing a court date," which Plaintiff argues is beyond the scope of Brown's authority and is a judicial duty. [ECF No. 30 at 4]. However, there is no indication that Brown acted outside the scope of this authority by writing down a court date on the citation. Plaintiff additionally argues that "Richland County lacked jurisdiction at all times of this infringement." [ECF No. 55 at 4]. However, there is no dispute that the Walmart was situated in the county of Richland and that Defendants were on duty and in uniform, patrolling the parking area in connection with their employment by RCSD. See S.C. Code Ann. § 23-13-60 ("The deputy sheriffs may for any suspected freshly committed crime, whether upon view or upon prompt information or complaint, arrest without warrant . . . .").
In sum, based on the record before the court, Defendants did not violate Plaintiff's Fourth Amendment rights. As such, Defendants are entitled to qualified immunity, and the undersigned recommends granting Defendants' motion as to Plaintiff's Fourth Amendment claim.
Plaintiff alleges Defendants violated his rights under S.C. Code Ann. § 17-13-50, because they failed to inform him of the grounds of his arrest. [See ECF No. 30 at 3]. Evidence indicates, however, that Plaintiff was aware he was issued a citation for possession of marijuana. Notwithstanding, liability is appropriate under § 1983 only to remedy violation of federally-protected rights, not a violation of state statutes. See, e.g., Moore Koon v. Cty. of Newberry, S.C., C/A No. 3:09-1021-SB, 2010 WL 3781829, at *7 (D.S.C. Feb. 4, 2010), report and recommendation adopted, C/A No. 3:09-1021-SB, 2010 WL 3781798 (D.S.C. Sept. 21, 2010) (citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979); Clark v. Link, 855 F.2d 156, 161, 163 (4th Cir.1988) (holding that § 1983 claim rests on violation of the Constitution or statutes of the United States, not solely on violation of state statutes or common law torts). To the extent this claim could be considered by the court through the exercise of supplemental jurisdiction, the undersigned recommends the district judge decline to exercise such jurisdiction where, here, the undersigned also recommends the district judge dismiss Plaintiff's claims over which the court has original jurisdiction. See 28 U.S.C.A. § 1367(c) (West) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . (3) the district court has dismissed all claims over which it has original jurisdiction . . . .").
2. Fifth or Fourteenth Amendment Claim
Plaintiff brings a claim under the Fifth and Fourteenth Amendments for violation of his Due Process and Equal Protection rights, stating "[i]n my situation of being a man of color, with dreadlocks sitting in my vehicle [Defendants] used this single fact that I was committing a crime, without any articulated facts or proof was I singled out above all other white shoppers also sitting in their vehicles . . . ." [ECF No. 30 at 4].
As an initial matter, because Defendants are state actors, the Fourteenth Amendment, not the Fifth Amendment, applies. See Adams v. United States Dep't of Labor, 360 F. Supp. 3d 320, 345 n.40 (D.S.C. 2018) ("The Due Process Clause of the Fifth Amendment is enforceable against the United States, while the Due Process Clause of the Fourteenth Amendment is enforceable against the States."); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citation omitted) ("[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.").
To succeed on an Equal Protection claim under the Fourteenth Amendment, Plaintiff "must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). However, Plaintiff has submitted no evidence that Brown "singled [him] out above all other white shoppers also sitting in the vehicles" or that there were other shoppers in the vicinity, regardless of race. [See ECF No. 30 at 4]. Instead, Defendants have submitted evidence that Plaintiff's vehicle was located in isolation, at the far edge of the parking lot. [ECF No. 49-2 ¶¶ 13-14]. Additionally, Defendants have submitted undisputed evidence that Brown could not identify Plaintiff's race or gender until he approached the vehicle. Id. ¶ 20. Thus, Brown's decision to approach the vehicle was taken without knowledge of the race or gender of the occupant. See, e.g., Harris v. City of Virginia Beach, VA, 11 F. App'x 212, 215 (4th Cir. 2001) (affirming dismissal of equal protection claim where district court "noted that Harris had failed to present any evidence to dispute Dean's assertion that he did not know the identity or race of the driver prior to stopping Harris' vehicle.").
Regarding Plaintiff's claim that Defendants violated his Fourteenth Amendment right to Due Process, the Due Process clause is not the proper lens through which to evaluate the validity of Defendants' actions where, "[c]ompared to the more generalized notion of due process, the Fourth Amendment provides an explicit textual source of constitutional protection against [unreasonable seizures and arrests], and define[s] the 'process that is due' for seizures of persons or property in criminal cases." Safar v. Tingle, 859 F.3d 241, 245 (4th Cir. 2017) (citations omitted).
In sum, based on the record before the court, Defendants did not violate Plaintiff's Equal Protection rights. Therefore, Defendants are entitled to qualified immunity, and the undersigned recommends dismissal of this claim.
Plaintiff states he also brings a claim pursuant to 42 U.S.C. § 1988. [ECF No. 30 at 4-5]. Section 1988 does not give rise to any independent causes of action. In addition to what has already been discussed in this report and recommendation, § 1988 provides for the award of attorney's fees and expert fees in civil rights suits. To the extent Plaintiff is attempting to assert a cause of action under § 1988, the undersigned recommends the claim be dismissed.
3. Negligence and Gross Negligence Claims
Plaintiff states that Defendants were grossly negligent during the relevant times. [ECF No. 30 at 6]. To establish a cause of action in negligence in South Carolina, the plaintiff must prove: (1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty. Bishop v. S.C. Dep't of Mental Health, 502 S.E.2d 78, 82-83 (S.C. 1998) (citing Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292 (S.C. 1996)). "Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do." Etheredge v. Richland Sch. Dist. One, 534 S.E.2d 275, 277 (S.C. 2000) (citation omitted).
Citing Wyatt v. Fowler, 484 S.E.2d 590, 592 (S.C. 1997), Defendants argue they owed no duty to Plaintiff, where the South Carolina Supreme Court in Wyatt held that "the state does not owe its citizens a duty of care to proceed without error when it brings legal action against them" and instead owes a duty to the public at large.
"However, courts have found that a law enforcement officer can undertake a duty of care to a particular individual that can form the basis for a negligence claim." Murphy v. Fields, C/A No. 3:17-2914-CMC-PJG, 2019 WL 7195889, at *10 (D.S.C. Aug. 29, 2019), report and recommendation adopted, C/A No. 3:17-2914-CMC, 2019 WL 5417735 (D.S.C. Oct. 23, 2019); see also Newkirk v. Enzor, 240 F. Supp. 3d 426, 437-38 (D.S.C. 2017) (finding the public duty rule inapposite to the plaintiff's negligence claim based on a police officer's initiation of a traffic stop because the officer's decision to stop the plaintiff created a duty to the plaintiff under the common law, not a statute); Brown v. Brown, 598 S.E.2d 728, 731 (S.C. Ct. App. 2004) (finding the public duty rule did not bar the plaintiff's negligence claims against police officers for decisions the officers made during a traffic stop).
Notwithstanding, Plaintiff has submitted no admissible evidence that Defendants breached whatever duty they may have owed Plaintiff by failing "to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation." Newkirk, 240 F. Supp. 3d at 438 (citing Jones v. Am. FId. & Cas. Co., 43 S.E.2d 355, 359 (S.C. 1947)). Nor has Plaintiff submitted admissible evidence concerning damage proximately resulting from the breach of that duty.
To the extent Plaintiff is bringing claims for negligence or negligent investigation under § 1983 against Defendants and to the extent such claims can be asserted by Plaintiff, such claims fail for the same reasons stated above. See, e.g., Goodwyn v. Kincheloe, 803 F.2d 713 (4th Cir. 1986) ("even if Satterwhite had acted negligently in performing his duties, his conduct did not rise to the level necessary to state a claim under § 1983").
Additionally, the South Carolina Tort Claims Act ("SCTCA") is "the exclusive remedy for any tort committed by an employee of a governmental entity." S.C. Code Ann. § 15-78-70(a). "The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained" within the SCTCA. S.C. Code Ann. § 15-78-40. The SCTCA additionally provides a "governmental entity is not liable for the loss resulting from . . . employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude." S.C. Code Ann. § 15-78-60 (17); see also id. at § 15-78-70(b).
Plaintiff does not allege that Defendants acted outside the scope of their duties. Therefore, Plaintiff's negligence and gross negligence claims against Defendants in their individual capacities are barred by the SCTCA. See, e.g., Coats v. Pope, C/A No. 1:17-CV-02930-TLW, 2019 WL 5586871, at *9 (D.S.C. Oct. 30, 2019) ("As to the negligence and gross negligence claims, the Court agrees with the findings of the Magistrate Judge that summary judgment is appropriate because the claims lack the required elements under S.C. Code Ann. § 15-78-70(b)."); see also Smith v. Ozmint, 394 F. Supp. 2d 787, 792 (D.S.C. 2005) (finding negligence claim did not include the element of "intent to harm," and thus the claim could not be asserted against state employees in their individual capacity under the SCTCA).
Accordingly, the undersigned recommends dismissal of Plaintiff's negligence and gross negligence claims.
4. Intentional Infliction of Emotional Distress Claim
To recover for intentional infliction of emotional distress, a plaintiff must establish that "the conduct was so 'extreme and outrageous' as to exceed 'all possible bounds of decency' and must be regarded as 'atrocious, and utterly intolerable in a civilized community.'" Ford v. Hutson, 276 S.E.2d 776, 778 (S.C. 1981) (citation omitted).
Plaintiff's state law claim of intentional infliction of emotional distress requires a showing of actual malice and intent to harm, and therefore the SCTCA does not bar state employees being held individually liable. See S.C. Code Ann. § 15-78-70(b) ("Nothing in this chapter may be construed to give an employee of a governmental entity immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude."); Smith, 394 F. Supp. 2d at 792 (finding that a claim of intentional infliction of emotional distress does allege and require a showing of actual malice and intent to harm and therefore the court had jurisdiction to hear the claims against South Carolina Department of Corrections officers in their individual capacities). However, and as argued by Defendants, "[t]here is simply no evidence that [Defendants] acted to intentionally harm Plaintiff or with reckless disregard." [ECF No. 49-1 at 23].
Defendants argues that pursuant to S.C. Code Ann. § 15-78-30(f), which provides that a "loss" recoverable under the SCTCA "does not include the intentional infliction of emotional harm," there is no remedy for the alleged intentional infliction of emotional distress and Defendants are entitled to summary judgment on this cause of action. [ECF No. 49-1 at 22]. However, Plaintiff brings suit against Defendants in their individual capacities, and as such, the SCTCA does not bar Plaintiff's intentional infliction of emotional distress claim. See Smith, 394 F. Supp. 2d at 792.
Plaintiff has failed to put forth admissible evidence in support of this claim. Accordingly, the undersigned recommends dismissal of Plaintiff's intentional infliction of emotional distress claim.
5. Defamation Claim
"The tort of defamation allows a plaintiff to recover for injury to his or her reputation as the result of the defendant's communications to others of a false message about the plaintiff." Argoe v. Three Rivers Behavioral Health, L.L.C., 710 S.E.2d 67, 73 (S.C. 2011) (citation omitted). "In order to prove defamation, the plaintiff must show (1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." Id. at 74 (citation omitted). "The publication of a statement is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Id. (citation omitted).
It appears that Plaintiff's defamation claim, at least in part, is based on the allegation that Brown allegedly informed "the Live PD audience" as follows: "Look, we don't know if he's lying in wait to rob someone." [See ECF No. 55 at 6]. Plaintiff's defamation claim also may be based on the airing of the Live PD show that captured some or all of the events in question, including that Plaintiff possessed marijuana.
Regarding this alleged comment, Brown attests that he does not have "a specific recollection of our entire conversation," and that "[i]f [he] made this comment regarding a potential crime or robbery it was only in such a context to explain my job and certainly not intended to be accusatory or disrespectful." [ECF No. 49-2 ¶ 37].
Plaintiff also argues the Live PD show referenced him as a "sovereign citizen" and "veteran." [See, e.g., ECF No. 55 at 6].
As has been stated, Plaintiff has put forth no admissible evidence in support of his defamation claim. There is no evidence in the record beyond Plaintiff's unsubstantiated assertions that Brown stated what Plaintiff alleges. Additionally, as argued by Defendants, Plaintiff fails to identify that this or any other statement was defamatory or untruthful. [ECF No. 49-1 at 25, ECF No. 62 at 5-6].
Here, there is not enough information in the record to support Plaintiff's defamation claim. See, e.g., Brailsford v. Wateree Cmty. Action, Inc., 135 F. Supp. 3d 433, 448 (D.S.C. 2015) (granting summary judgment on defamation claim where plaintiff presented "conclusory and vague," did not "proffer any evidence or record citations to support her allegations," and where "[t]he remaining 'evidence' Plaintiff references is even less specific and provides no indication defamatory statements or actions were published or were untrue."); Peirce v. Bryant, C/A No. 4:14-2927-BHH, 2016 WL 1061060, at *3 (D.S.C. Mar. 17, 2016) (select citations omitted) (upholding grant of summary judgment where the magistrate judge "found that Plaintiff could not identify any specific false statements made by any specific Defendant. He further found that Plaintiff could not establish defamation through her deposition testimony that all of the defendants made defamatory statements to the general public about her being "guilty of stuff.").
Without admissible evidence in the record as to the false and defamatory statement Defendants allegedly made, Plaintiff's defamation claim fails, and the undersigned recommends its dismissal.
Given the recommendation above, it is unnecessary to address Defendant's assertion of the affirmative defense of conditional or qualified privilege. [See ECF No. 49-1 at 23-24]. Additionally, Defendants do not specifically address the applicability of the SCTCA to Plaintiff's claims for defamation and invasion of privacy. Therefore, the undersigned also does not address the applicability of the SCTCA to these claims.
6. Privacy Claim
The right of privacy is "the right to be let alone; the right of a person to be free from unwarranted publicity." Swinton Creek Nursery v. Edisto Farm Credit, ACA, 514 S.E.2d 126, 130 (S.C. 1999) (citation omitted). "South Carolina defines tortious invasion of privacy as '[t]he unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.'" Doe 2 v. Associated Press, 331 F.3d 417, 421 (4th Cir. 2003) (citing Meetze v. Associated Press, 95 S.E.2d 606, 608 (1956)). "This definition gives rise to three separate but related causes of action: '(1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs.'" Id. (citing Snakenberg v. Hartford Cas. Ins. Co., 383 S.E.2d 2, 5 (S.C App.1989)).
Here, the second cause of action, wrongful publicizing of private affairs, is implicated. "To face liability for wrongful publicizing of private affairs, a defendant must have intentionally committed 'public disclosure of private facts about the plaintiff'—facts 'in which there is no legitimate public interest.'" Id. (citing Snakenberg, 383 S.E.2d at 6).
Setting aside that Plaintiff has not identified which private facts he alleges were wrongfully publicized, the court can find no case law suggesting the facts that may have been disclosed by Defendants about Plaintiff in the airing of the Live PD show were private or were not of legitimate public interest. See id. ("Plaintiff points to no case, however, suggesting any circumstance under which there might be a privacy interest in information disclosed in an open courtroom."). Instead, as held by the Supreme Court of South Carolina, "if a person, whether willingly or not, becomes an actor in an event of public or general interest, then the publication of his connection with such an occurrence is not an invasion of his right to privacy." Doe v. Berkeley Publ'rs, 496 S.E.2d 636, 637 (S.C. 1998) (citation omitted) (rejecting a privacy claim based on the defendant's truthful reporting that plaintiff was a victim of a sexual assault while incarcerated in the local jail); see also Spilfogel v. Fox Broad. Co., C/A No. 09-80813, 2009 WL 10666811, at *3 (S.D. Fla. Dec. 2, 2009) ("Further, Spilfogel asserts the legal conclusion that her traffic stop was not a matter of public concern, yet asserts no facts to support such a claim. Again, the Court need not accept legal conclusions as true, and without more, the Court is unable to make the inference that her traffic stop was not a matter of public concern.").
Accordingly, the undersigned recommends dismissal of Plaintiff's privacy claim. III. Conclusion and Recommendation
Plaintiff makes reference to other incidents with other law enforcement officers. [See, e.g., ECF No. 55 at 2]. However, there is no indication these incidents involve Defendants in this case.
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion for summary judgment. [ECF No. 49]. If the district judge agrees with the undersigned, Defendants' motion to be excused from mediation requirement will be rendered moot. [ECF No. 58].
IT IS SO RECOMMENDED. June 24, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and 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
901 Richland Street
Columbia, South Carolina 29201
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).