Opinion
C. A. 3:20-694-JMC-SVH
10-16-2020
Jerome S. Garcia, Plaintiff, v. Joseph M. Dwyer, Columbia Police Officer, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Jerome S. Garcia (“Plaintiff”), proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983 against officer Joseph M. Dwyer in his individual capacity (“Defendant”), alleging violation of his rights regarding when he was arrested and his vehicle was searched on January 1, 2019.
This matter is before the court on Defendant's motion for summary judgment [ECF No. 23]. 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 Defendant's motion. [ECF No. 24]. The motion having been fully briefed [ECF Nos. 27, 28], it is ripe for disposition.
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 Defendant's motion for summary judgment.
I. Factual Background
Taking the facts in a light most favorable to Plaintiff, on January 1, 2019, at approximately 8:40 p.m., Defendant was dispatched from the Columbia Police Department to a call for service in the parking lot of a Wal Mart at 1326 Bush River Road in reference to a public disturbance. [ECF No. 23-2 ¶ 6]. Upon arrival, Defendant made contact with two civilians (“complainants”), one of whom was the purported caller and who indicated Plaintiff had harassed them. Id. After further investigation, Defendant also learned that Plaintiff had chased the complainants with his vehicle, a 1999 Chevy Tahoe. Id.
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, Plaintiff's complaint, amended complaint, and response to Defendants' motion are not verified, including the document entitled “affidavit of facts by Plaintiff.” [See ECF Nos. 1, 11, 27, 27-1]. Federal law requires a verification to be sworn or signed subject to the penalty of perjury. See 28 U.S.C. § 1746 (providing that, if “any matter is required or permitted to be supported, evidenced, established, or proved by . . . verification, ” an unsworn statement is sufficient if “subscribed . . . as true under penalty of perjury”). For background purposes, the court includes allegations found in Plaintiff's “affidavit of facts by Plaintiff” [ECF No. 27-1] 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 . . . affidavits or declarations . . . . If you fail to dispute the defendant's version of the facts with proper support of your own version, the court may consider the defendant's facts as undisputed.” [ECF No. 24 at 2-3].
Plaintiff states he was trying to break up a fight and confirms that one of the complainants called 911 and stated Plaintiff was “trying to kill her and her boyfriend.” [ECF No. 27-1 ¶¶ 1-11].
After speaking with the complainants, Defendant approached Plaintiff who was sitting inside his vehicle, a 1999 Chevy Tahoe. Id. ¶ 7. Plaintiff advised Defendant he was living out of his vehicle and sleeping on the Walmart property. Id. When questioned about his involvement with the two other civilians on scene, Plaintiff indicated he got involved and drove his vehicle towards them in an attempt to break up a fight. Id. When asked for identification, Plaintiff produced a copy of a California identification card. Id.
Plaintiff states instead that Defendant arrived on the scene, pulled up behind Plaintiff's vehicle, a 1999 Chevy Suburban, and immediately asked Plaintiff “do you know your tags are out of date?” [ECF No. 27-1 ¶¶ 1, 16-19].
During Defendant's interactions with Plaintiff, he noted Plaintiff's speech was slurred and the odor of alcoholic beverages emitted from his breath and person. Id. ¶ 8. Plaintiff was also swaying while standing in place and exhibiting behaviors consistent with someone under the influence of alcohol, drugs, and/or a combination of alcohol and drugs. Id.
A computer check of the information on Plaintiff's identification card and vehicle indicated he did not have a valid driver's license in South Carolina and the registration on the 1999 Chevy Tahoe had expired. Id. ¶ 9. Plaintiff also failed to provide proof of insurance. Id. Upon further questioning, Plaintiff admitted to having marijuana inside the vehicle. Id. ¶ 10. Plaintiff also admitted to having drunk several beers earlier that day. Id.
As attested by Defendant:
Based upon the totality of the circumstances at the scene, including but not limited to the facts surrounding the call for service, my observations of Mr. Garcia on scene, the information gathered from the checks of Mr. Garcia's license and registration, Mr. Garcia's admissions on scene, and my training and experience as a law enforcement officer, I determined that there was probable cause to arrest Mr. Garcia for multiple offenses, to include drunkenness, driving under suspension, driving under the influence, simple possession of marijuana, open container, no proof of insurance, and public disorderly conduct.Id. ¶ 11. However, as an exercise of officer discretion, Plaintiff was only cited and arrested for drunkenness. Id. ¶ 12.
Plaintiff states he asked Defendant if he was free to go, to which Defendant responded “no” and arrested him “I guess [for] being a sovereign citizen, or out of state expired tag, I am not sure because he never articulated any crime I was committing to do so” and that he was not informed until he was in the back of Defendant's vehicle that he was being arrested for public drunkenness “without a breathalyzer or sobriety test.” [ECF No. 27-1 ¶¶ 19, 22]. Plaintiff states he informed Defendant that he was not drunk, but was told that Defendant had found “beer cans in my car, in a bag of household garbage bag I had in my car.” Id. ¶ 23.
Defendant conducted a search of Plaintiff's vehicle, both incident to arrest, as well as pursuant to the City of Columbia Police Department's policy on inventory searches. Id. ¶ 14. During the search of the vehicle, a small quantity of marijuana and paraphernalia were recovered from the center console. Id. ¶ 10. In addition, several open containers of beer were recovered and at least one container was cool to the touch. Id. Plaintiff's vehicle was towed, his expired license tag was taken for return to the Department of Motor Vehicles, and Plaintiff was transported to the Lexington County Detention Center. Id. ¶ 15.
Plaintiff states his vehicle was searched without a warrant or his consent and that Defendant and another officer, during the search, “[broke] items as they laugh[ed] and joke[d] about a cannabis pipe I had before slamming it to the ground.” [ECF No. 27-1 ¶ 21].
Plaintiff additionally states Defendant informed him, without explanation, that Plaintiff was “lucky” he was not charged with attempted murder, Defendant never read him his Miranda rights, Defendant failed to engage in a proper investigation including concerning the assault, Defendant appeared upset that he was unable to pursue two black men he received a call concerning, Defendant did not allow Plaintiff to use the restroom resulting in Plaintiff urinating on himself while in the police vehicle, and Defendant never returned Plaintiff's identification. [ECF No. 27-1 ¶¶ 22, 24-27].
At the court date for Plaintiff's drunkenness citation, on February 6, 2019, Plaintiff appeared pro se before the Honorable Susan Porter, Municipal Court Judge for the City of Columbia. Id. ¶ 17. During a bench trial, Defendant testified about the circumstances of the call for service and his observations on scene. Id. As evidenced by the transcript attached to Defendant's affidavit, Defendant testified at the trial in part as follows:
Officer Dwyer: Well, the dispatch was an (inaudible) disturbance between individuals and the defendant. Upon arrival I observed the defendant inside of the vehicle. He was asked to step out of his vehicle which he complied. When he did so you could smell the odor of alcohol on his breath and person. Due to the incident and officer's response he was placed under arrest for drunkenness . . .
The Court: What's the basis of the search?
Officer Dwyer: His (inaudible) said he had marijuana. We didn't charge him for marijuana. He went on just drunkenness . . . . From my determination of arrest is when he went into handcuffs. He was advised of his charge once he was placed in the vehicle after reading (inaudible) arrest.Id. at 11, 16.
At the trial, Defendant also played video that was recorded on his body-worn camera during the incident. Id. ¶ 17. After taking testimony and viewing the video evidence from my body-worn camera, Judge Porter found Defendant “had probable cause for the arrest, ” but “based on the video . . . I did not see him unsteady on his feet or slurring his words. I do not find that he was heavily intoxicated. At this time, I am going to find him not guilty although I do find for the record that there was probable cause for the arrest.” Id. at 20-21.
Plaintiff states he requested this video evidence, but that “the city destroyed the evidence in violation of the state law requiring video storage.” [ECF No. 27-1 ¶ 33].
Plaintiff states he “aggravated” Judge Porter, that she incorrectly threatened him with contempt, and, inconsistent with transcript evidence submitted by Defendant discussed above, she got upset with Defendant and asked why he searched Plaintiff's vehicle without probable cause. [ECF No. 27-1 ¶¶ 29-32].
Plaintiff filed the instant suit on February 11, 2020. After reviewing the complaint in accordance with the applicable law, the undersigned construed the initial complaint as asserting claims pursuant to 42 U.S.C. § 1983 for violations of the Fourth, Sixth, Eighth, and Fourteenth Amendments, malicious prosecution, abuse of process, and violation of the separation of powers act against Defendant and previously-named defendant Judge Porter. [ECF No. 9]. The undersigned dismissed Plaintiff's claims against Judge Porter and claims against Defendant arising under the Sixth and Eighth Amendments, as well as claims for abuse of process and violation of the separation of powers. Id.
Plaintiff filed his amended complaint on February 24, 2020. [ECF No. 11]. In it, Plaintiff asserts claims against Defendant for violations of the Fourth and Fourteenth Amendments. Id. at 3.
II. Discussion
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. We ler v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
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).
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).
Regarding the third category, “a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “The Fourth Amendment is not violated by an arrest based on probable cause.” Graham v. Connor, 490 U.S. 386, 396 (1989). Probable cause exists if the “facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person . . . in the circumstances shown, [to conclude] that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest.” Id. at 36.
“In assessing the existence of probable cause, courts examine the totality of the circumstances known to the officer at the time of the arrest.” Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996). “Probable cause requires more than ‘bare suspicion,' but requires less than evidence necessary to convict.” Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (citation omitted). Reasonable law officers need not “resolve every doubt about a suspect's guilt before probable cause is established.” Torchinsky v. Siwinsky, 942 F.2d 257, 264 (4th Cir.1991) (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. Ca lahan, 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 and Arrest
In response to the initial call for service based on a complaint of a public disturbance, Defendant had reasonable suspicion to approach and temporarily detain Plaintiff, including requesting he exit his vehicle. An officer “may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30).
Plaintiff does not argue Defendant violated his rights by approaching him in response the initial call for service. [See, e.g., ECF No. 11 ¶ 4; ECF No. 27 at 1-2 (“This call totally puts Dwyer in jurisdiction, and probable cause . . . .”)]. However, Plaintiff appears to challenge his ensuing arrest because Defendant (1) did not inform him why he was being arrested, thus violating state law, (2) did not inform him of his Miranda rights, and (3) arrested him for public drunkenness, a charge Plaintiff argues “needs supporting facts like a sobriety check, or breathalyzer test.” [ECF No. 27 at 2; see also Id. (stating “within 30 second of exiting his vehicle [Defendant] handcuffed and arrested me without articulating why, I wasn't read my Miranda rights at all”); ECF No. 11 ¶¶ 7-15].
Plaintiff also appears to argue that his rights were violated because Defendant responded to the initial call, but did not conduct a proper investigation, [see, e.g., ECF No. 11 ¶¶ 6, 15, 17; ECF No. 27 at 2-4], but Plaintiff has submitted no admissible evidence in support of such a claim. To the extent Plaintiff attempts to articulate claims for negligence or negligent investigation under § 1983 against Defendant and to the extent such claims can be asserted by Plaintiff, they fail. See also 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”).
Taking the admissible evidence submitted by Defendant in light most favorable to Plaintiff, Defendant testified before Judge Porter as follows:
Officer Dwyer: Upon arrival I observed the defendant inside of the vehicle. He was asked to step out of his vehicle which he complied. When he did so you could smell the odor of alcohol on his breath and person. Due to the incident and officer's response he was placed under arrest for drunkenness . . . . From my determination of arrest is when he went into handcuffs. He was advised of his charge once he was placed in the vehicle after reading (inaudible) arrest.[ECF No. 23-2 at 11, 16]. Defendant has additionally put forth evidence that prior Plaintiff's arrest, he was informed Plaintiff harassed the complainants and that Plaintiff's car chased them, and he personally observed Plaintiff's “speech was slurred, and the odor of alcoholic beverage emitted from his breach and person” and that Plaintiff “was also swaying while standing in place and exhibiting behaviors consistent with someone who was under the influence . . . .” Id. ¶¶ 6, 8.
Although Plaintiff argues otherwise, “Dwyer's own notes” submitted by Plaintiff as evidence do not support the argument that Defendant admitted Plaintiff was not slurring or unsteady on his feet. [See ECF No. 27 at 4; see also ECF No. 11-1 at 2-3].
Here, the totality of the facts and circumstances within Defendant's knowledge were sufficient to warrant a prudent or reasonable person to believe that Plaintiff had committed or was committing the criminal offence for which he was arrested. The City of Columbia Municipal Code proscribes public intoxication and makes it unlawful for any person to “be found drunk or intoxicated in the corporate limits of the city in any place, public or private, so as to be offensive to others . . . .” Columbia, S.C., Ordinance § 14-98 (1979). In addition, SC Code Ann. § 16-17-530 provides that it is unlawful for any person to be “found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducts himself in a disorderly or boisterous manner.” S.C. Code Ann. § 16-17-530 (1976). Although Petitioner was not arrested for the following offenses, it is also unlawful for any person to drive with a suspended driver's license, expired registration, while under the influence, or with open containers; and it is also unlawful to possess marijuana. See genera ly, e.g., SC Code Ann. §§ 56-1-460, 56-3-110, 56-5-2930, 61-4-110, and 44-53-370(c) (prohibiting the same).
The undersigned rejects Petitioner's argument and related arguments, made without support, that public drunkenness is a “civil infraction” over which “the municipal court lacks subject matter jurisdiction.” [ECF No. 27 at 2-3; see also ECF No. 28 at 2-3].
Although Plaintiff argues otherwise, a sobriety check or breathalyzer test was not necessary under the circumstances of his arrest. Additionally, Plaintiff concedes he was informed he was being arrested for public drunkenness when placed in the back of Defendant's vehicle. [See ECF No. 27-1 ¶ 22; see also ECF No. 11 ¶ 21]. To the extent Plaintiff argues that even though he was informed, he was not informed consistently with state statutes, [see ECF No. 11 ¶¶ 7-14 (citing S.C. Code Ann. § 17-13-50)], 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. McCo lan, 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). Finally, “an officer's mere failure to read Miranda warnings does not rise to the level of a constitutional violation and cannot support a claim under § 1983.” Sturkey v. Hudson, C/A 6:19-3137-RMG, 2020 WL 1303207, at *2 (D.S.C. Mar. 18, 2020) (citation omitted).
To the extent these claims, or any others, 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).
Here, based on the information he possessed at the time of the arrest, Defendant had probable cause to arrest Plaintiff.
b. Vehicle Search
Plaintiff argues that, following his arrest, there was no probable cause to search his vehicle. [ECF No. 11 ¶¶ 17-18; ECF No. 27-1 ¶ 21]. However, Plaintiff was lawfully arrested, and his vehicle was lawfully searched incident to his arrest because it was reasonable for Defendant to believe the vehicle contained evidence of the offense of arrest. See Chimel v. California, 395 U.S. 752, 762-63 (1969) (holding that a search incident to a lawful arrest does not violate the Fourth Amendment); New York v. Belton, 453 U.S. 454 (1981) (applying Chimel to automobile searches and holding that when an officer lawfully arrests the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile and any containers therein); Arizona v. Gant, 129 S.Ct. 1710, 1719, (2009) (citing Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)) (holding 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'”); see also 1 Crim. Prac. Manual § 25:129, Automobile Searches Incident to Arrest (“Thus, under Belton and Thornton, police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”).
Defendant has also put forth undisputed evidence that Plaintiff admitted to contraband being in his vehicle. [ECF No. 23-2 ¶ 10]. “Under the automobile exception to the search warrant requirement, 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. Thomas, 819 Fed.Appx. 171, 172 (4th Cir. 2020) (citing Maryland v. Dyson, 527 U.S. 465, 466, 467 (1999)).
Defendant argues Plaintiff's vehicle was also searched pursuant to the City of Columbia Police Department's policy on inventory searches. [See ECF No. 23-1 at 14]. Given the recommendation above, it is unnecessary to address this argument.
In sum, based on the record before the court, Defendant did not violate Plaintiff's Fourth Amendment rights. As such, Defendant is entitled to qualified immunity, and the undersigned recommends granting Defendant's motion as to Plaintiff's Fourth Amendment claim.
2. Fourteenth Amendment Claim
Plaintiff brings a claim under the Fourteenth Amendments for violation of his Due Process and Equal Protection rights, stating as follows:
It is my stance that my equal protection rights are violated on the mere principal of me being poor. Because I'm poor. I'm not [e]ntitled to Due Process, nor Equal Protections of the Law according to Executive State actors, Executive Municipalities, or Executive Branch Administrative Statues, Codes, or Laws that I bring up in this case.[ECF No. 11¶ 21; see also Id. ¶ 20].
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 put forth no evidence in support of his Equal Protection claim, and Defendant has put forth evidence that he “responded to the scene in reference to a call for service regarding a public disturbance” and that he did not “approach or engage with Mr. Garcia based upon his gender, skin color, or for any reason related to his socioeconomic status.” [ECF No. 23-2 ¶ 21].
Based on the record before the court, Defendant did not violate Plaintiff's Fourteenth Amendment rights. Therefore, Defendant is entitled to qualified immunity, and the undersigned recommends dismissal of this claim.
Regarding Plaintiff's claim that Defendant violated his Fourteenth Amendment right to Due Process, the Due Process clause is not the proper lens through which to evaluate the validity of Defendant's 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).
3. Additional Claims
Plaintiff makes brief reference to claims for intentional infliction of emotional distress and defamation, as well as a claim arising under the South Carolina state constitution.
To the extent Plaintiff has attempted to reassert a claim for abuse of power [see ECF No. 11 ¶ 16], the undersigned notes this claim was previously dismissed by this court [see ECF No. 9 at 9], and Plaintiff has put forth no admissible evidence or argument to question that holding, nor did Plaintiff file any motions or otherwise object to the court's previous ruling dismissing this 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). Additionally, “[t]he 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).
Plaintiff has failed to put forth any argument or admissible evidence in support of these claims. Likewise, to the extent that Plaintiff asserts a claim based on violation of the South Carolina state constitution, he has failed to put forth any argument or admissible evidence in support. Additionally, the South Carolina Tort Claims Act is the “exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents.” S.C. Code Ann. § 15-78-20. Therefore, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to these claims.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 23].
IT IS SO RECOMMENDED.
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).