THOMAS E. ROGERS, III, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourth and Fourteenth Amendment rights, false imprisonment, conversion, and abuse of process
Plaintiff and Darnell and Windy Price have a contentious relationship and have filed numerous complaints against each other that do not form the basis for the present action. However, a background of the contentious nature of these individuals is helpful to understanding the claims underlying this action. In 2007, Plaintiff ran for Town Council against Windy Price, among other individuals. Statement of Candidacy (Ex. 34 to Def. Motion); Pl. Dep. 70-72. Plaintiff became suspicious that Windy Price was making false claims of residency when running against him for Town council. Pl. Dep. II 30-31. Plaintiff also investigated the zoning and licensing of the Price family's place of worship, the CME Church, Pl. Dep. II 32, and he investigated the Prices for alleged violations of the terms of a legal settlement with the Insurance Reserve Fund. Pl. Dep. II 32-33. Plaintiff lost the election to Windy Price, but continued his investigation into the Prices' conduct.
On June 2, 2008, the Plaintiff was arrested for Second Degree Harassment of Windy Price. Arrest Warrant (Ex. 22 to Def. motion). Plaintiff was taking pictures of her while she operated a golf cart without a registration sticker on it. Pl. Dep. II 49; Photo of Windy Price on Golf Cart (Ex. 23 to Def. Motion). These charges were eventually dropped by Windy Price, and the Plaintiff filed a lawsuit against her on March 17, 2009, for abuse of process and malicious prosecution. Civil Action Compl. (Ex. 26 to Def. Motion). The case was eventually dismissed. Order (Ex. 87 to Def. Motion).
On May 31, 2009, Plaintiff filed a police report with Defendants that Darnell Price was following him in his truck in a threatening manner. Harassment Report (Ex. 30 to Def. Motion); Pl. Dep. II 62.
Plaintiff filed a complaint against Windy Price regarding her failure to file a Statement of Economic Interest in the 2007 election. Pl. Compl. to Election Committee (Ex. 35 to Def. Motion); Pl. Dep. II 72.
On November 8, 2009, Plaintiff filed a police report with Defendants alleging that Darnell Price parked his truck on the sidewalk and filmed him in a threatening manner. Harassment Report (Ex. 37 to Def. Motion); Pl. Dep. II 75.
On November 26, 2009, Plaintiff filed another police report alleging Darnell Price was harassing him. Harassment Report (Ex. 38 to Def. Motion); Pl. Dep. II 77.
On December 2, 2009, Darnell Price filed a police report with Horry County Police Department that Plaintiff was driving by their residence taking photographs. Harassment Report (Ex. 40 to Def. Motion). Plaintiff admitted this was occurring but said it was part of his investigation. Pl. Dep. II 80-81.
On January 1, 2010, Plaintiff wrote a letter to then Town Manager William Booker complaining that Darnell Price was stalking and harassing him. Pl. Letter to Booker (Ex. 45 to Def. Motion); Pl. Dep. II 86-87.
On March 7, 2010, Darnell Price filed a police report with the Atlantic Beach Police Department that Plaintiff was following him around and taking pictures of him and his family. Harassment Report (Ex. 50 to Def. Motion); Pl. Dep. II 101-04.
On March 9, 2010, Plaintiff complained to the Election Commission that they did not hear his complaint regarding Windy Price's Statement of Economic Interest. Pl. Letter to Graham (Ex. 51 to Def. Motion); Pl. Dep. II 105.
On March 20, 2010, Darnell Price filed a police report with the Horry County Police Department alleging that Plaintiff was following his family around taking pictures. Plaintiff protested he was not following Price around but rather pursuing his investigation. He admitted he took pictures of the church and Price's vehicle as part of this investigation. Harassment Report (Ex. 53 to Def. Motion); Pl. Dep. II 107.
On March 29, 2010, and March 31, 2010, the Plaintiff wrote two letters to Town Manager William Booker reporting that Windy Price had parked in front of a fire hydrant and that Darnell Price was trespassing on private property. Pl. Letters to Booker (Exs. 56-57); Pl. Dep. II 110-12.
On July 31, 2010, Plaintiff filed a police report with the Town of Atlantic Beach alleging that Darnell Price struck the back of his car as he was driving by. Harassment Report (Ex. 61 to Def. Motion); Pl. Dep. II 122-23.
On September 12, 2010, Plaintiff called the Horry County Police Department to the Prices' church for a noise ordinance violation. Trespassing Report (Ex. 66 to Def. Motion); Pl. Dep. II 131.
On September 5, 2010, Plaintiff complained to the Town of Atlantic Beach that the Prices were operating golf carts without proper permits. While Police Chief Eric Lewis was on the scene Darnell Price verbally threatened Plaintiff. Assault and Battery Report (Ex. 64 to Def. Motion): Pl. Dep. II 129-30. On September 30, 2010, Police Chief Eric Lewis swore out a warrant and had Darnell Price arrested for Assault & Battery Third Degree for the events that happened on September 5, 2010. Warrant (Ex. 65 to Def. Motion); Pl. Dep. II 127. On October 1, 2010, a Special Conditions of Bond Order was put on Darnell Price to stay away from Plaintiff's home and workplace and to have no contact with Plaintiff. Conditions of Bond on Price (Ex. 70 to Def. Motion); Pl. Dep. II 141.
In his complaint, Plaintiff takes issue with three arrests. The first arrest occurred on November 8, 2010. On that date, Plaintiff was arrested for First Degree Harassment pursuant to a warrant issued by the Municipal Judge based on an affidavit submitted by Police Chief Eric Lewis. Arrest Warrant J-745105 (Ex. 79 to Def. Motion). Arresting officer Eric Lewis cited four specific incidents in his affidavit leading to the arrest of the Plaintiff:
Arrest Warrant J-745105 (Ex. 79 to Def. Motion).
Following Plaintiff's arrest, a bond of $3,000 was set and posted, which included a "no contact" provision, preventing Plaintiff from contacting the victim or the victim's family.
At some point after the bond was issued, Plaintiff saw cars in the parking lot of the Community Center and thought a town meeting was occurring and pulled into the parking lot. As he turned around to leave, his exit was blocked by Darnell Price's vehicle, but he was eventually able to leave. Pl. Dep. II 34-36. The Prices then accused Plaintiff of violating the conditions of his bond. On July 27, 2011, an Order modifying the bond on Plaintiff was issued by Circuit Court Judge Steven H. John. Order Modifying Bond
At the same time as Plaintiff's arrest on November 8, 2010, Police Chief Eric Lewis also executed a search warrant at Plaintiff's residence and seized numerous items. Search Warrant Aff. and Return (Exs. 123, 127 to Def. Motion). The Search Warrant authorized Defendant Police to "search apartment looking for any audio and video log being on computer, flash drives, memory card and any audio, video photographic equipment and all documents and or files relating to Darnell Price, Wendy [sic] Price and their children." Search Warrant (Ex. 123 to Def. Motion). As a result of the execution of the Search Warrant, Defendant Police seized approximately 217 items from Plaintiff's residence ranging from Plaintiff's camcorder, batteries and charger to blank digital media, Plaintiff's computer and software tutorial discs. Search Warrant Return (Ex. 127).
William Booker was the Town Manager during the time of this arrest. List of Town Managers (Ex. 1 to Def. Motion); Pl. Dep. I 53.
Plaintiff's second arrest giving rise to this action occurred on November 21, 2011. On that date, Plaintiff was arrested for second degree harassment of Darnell Price by Officer John Jackson. Arrest Warrant J-745160 (Ex. 100 to Def. Motion). Plaintiff stated that Darnell Price was watching a public meeting from his vehicle across the Highway from the meeting site. Plaintiff claims he drove by Darnell Price in his vehicle while turning in a parking lot but never stopped his car. Pl. Dep. I 39. He then subsequently drove back to the meeting and informed everyone that Darnell Price was watching them. Pl. Dep. I 40. After leaving the meeting he drove by the town hall and saw Darnell Price speaking to Officer John Jackson and Town Manager Benny Webb. He was arrested shortly afterwards. Pl. Dep. I 42-43.
Officer Jackson averred that he was informed by Town Manager Benny Webb of the Order by Judge John concerning the Plaintiff and Darnell Price. Based on this information and his personal observations of the Plaintiff's conduct, he decided to issue a Uniform Traffic Ticket for misdemeanor Second Degree Harassment and arrested Plaintiff. Jackson Affidavit (Ex. 124 to Def. Motion). Plaintiff recorded the arrest on an audio recorder, during which the arresting officer can be heard saying "Mr. Curry, it's a bunch of bullshit, but I'm sorry, but I have to do my job." Audio Recording entitled "Ofc. Jackson arresting Paul-Warrant WS311955; ARREST; 11-21-11 (3)" (Ex. C. to Pl. Resp.). The following day Officer Jackson procured a warrant dated November 22, 2011, signed by Judge Chevron Scott for the same conduct. Arrest Warrant J-745160 (Ex. 100 to Def. Motion).
Judge John's Order modifying the conditions of bond for Plaintiff on July 27, 2011, after the initial arrest by Eric Lewis created some confusion about the appropriate jurisdiction for Plaintiff's harassment charges. Order Modifying Bond (Ex. 88 to Def. Motion); Rule to Show Cause Order (Ex. 101 to Def. Motion); Order Dismissing with Prejudice (Ex. 117 to Def. Motion); Pl. Dep. II 214. The cases were ultimately consolidated and sent to Magistrate's Court. Order (Ex. 115 to Def. Motion).
On February 18, 2013, the parties agreed to continue the case to the May 1, 2013, term of court. The order incorporating this agreement also removed all of the bond conditions on Plaintiff and ordered that all of the outstanding Rules to Show Cause in this matter were to be dismissed with prejudice. Order (Ex. 115 to Def. Motion); Pl. Dep. II 239-40. On July 9, 2013, Magistrate Judge Margie Livingston issued a final order dismissing all of the charges against Plaintiff and ordering all of his seized items returned. Order Dismissing with Prejudice (Ex. 117 to Def. Motion).
Plaintiff testified that he had made no effort personally to retrieve his seized property but left that to his attorney. Although he produced a copy of the order for Officer John Jackson to show that the bond conditions had been lifted, he did not request any of his property be returned. Pl. Dep. I 68-69. On September 3, 2015, the seized property in Defendants' evidence locker was returned to Plaintiff. Item Receipt (Ex. 121 to Def. Motion). Plaintiff asserts that many items seized were not returned and many items returned were not included on the search warrant return. Pl. Dep. I 85, 95-96.
Plaintiff's third arrest at issue occurred on November 29, 2012, when he was arrested by an Horry County Police Officer for Harassment First Degree for allegedly videotaping Darnell Price in his office from outside the Town Hall. HCPD Arrest (Ex. 108 to Def. Motion). The warrant was signed by County Magistrate Judge Christopher Arakas. HCPD Arrest (Ex. 108 to Def. Motion). After a preliminary hearing, the case was dismissed as the Magistrate Judge determined it was a bond matter. Notice of Dismissal (Ex. 113 to Def. Motion).
As part of Plaintiff's investigative efforts into the practices of the Town of Atlantic Beach's public officials, Plaintiff has made numerous Freedom of Information requests and has filed numerous lawsuits with respect to the responses received from Defendants. As of Plaintiff's deposition, he had five FOIA-related lawsuits pending. Pl. Dep. 74. In one particular instance, on January 31, 2012, Plaintiff was assaulted by then-Town Manager Benny Webb at the Town Hall relating to a request for public documents pursuant to SC FOIA. Audio and Video Recording (Ex. C to Pl. Resp.). During the incident, Mr. Webb threatened to "take care' of Mr. Curry and that he would "knock the living shit out of" him, and called him a "racist" and "a pedophile."
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings.
Plaintiff brings his federal claims pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his First, Fourth and Fourteenth Amendment rights. Section 1983 "`is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'"
Municipalities and other local governing bodies are included among those "persons" who may be sued under § 1983.
To establish municipal liability, a plaintiff must show that the municipality's policies or customs caused the constitutional violation.
"While municipal `policy' is found most obviously in municipal ordinances, regulations and the like which directly command or authorize constitutional violations ... it may also be found in formal or informal ad hoc `policy' choices or decisions of municipal officials authorized to make and implement municipal policy."
"`Official policy' in the relatively narrow sense of discrete, consciously chosen courses of action by `policymakers' is not the only basis for imposing municipal liability."
Plaintiff asserts a cause of action for false imprisonment (third cause of action), in which he alleges that he was arrested on November 8, 2010, November 21, 2011, and November 29, 2012
With respect to his arrests, Plaintiff appears to assert a "Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort. To state such a claim, a plaintiff must allege that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor."
All three of the arrests at issue were terminated in Plaintiff's favor. The first two arrests were consolidated, and a hearing was held on July 9, 2013, in which the Magistrate Judge ruled that the charges were not supported by probable cause and were dismissed with prejudice. An order memorializing that ruling was signed on August 7, 2013. Order Dismissing with Prejudice (Ex. 117 to Def. Motion). The November 29, 2012, arrest was dismissed during the Preliminary Hearing on January 23, 2013, because the Magistrate Judge determined it was a bond matter. Notice of Dismissal (Ex. 113 to Def. Motion).
Although Magistrate Judge Livingston ultimately found that the first two warrants lacked probable cause, such a finding is not determinative on the issue of whether the arresting officer, Police Chief Eric Lewis, violated Plaintiff's Fourth Amendment right to be free from unreasonable seizures.
Here, Plaintiff argues that his November 8, 2010, arrest was unreasonable because it followed from a warrant affidavit that contained incorrect information, which was known to the arresting officer, Police Chief Eric Lewis. Probable cause "exists when, `at the time the arrest occurs, the facts and circumstances within the officer's knowledge would warrant the belief of a prudent person that the arrestee had committed or was committing an offense.'"
Plaintiff cites several inaccuracies in Chief Lewis's affidavit. Plaintiff argues that Chief Lewis's affidavit narrative concerning the incident on October 5, 2010, is inaccurate. In his affidavit, Chief Lewis describes an altercation between Plaintiff and Darnell Price, which Chief Lewis described as a direct result of Plaintiff's "intentional, substantial and unreasonable intrusion into the private life of the victims." Arrest Warrant J-745105 (Ex. 79 to Def. Motion). Plaintiff argues that Chief Lewis neglected to include in his affidavit the fact that Darnell Price was arrested on September 30, 2010, for Assault and Battery 3rd Degree against Plaintiff during an incident which occurred on September 5, 2010 in the presence of Chief Lewis. Arrest Warrant J-745098 (Ex. 65 to Def. Motion). As a condition of Darnell Price's bond, he was ordered to refrain from contacting Plaintiff. Conditions of Bond (Ex. 70 to Def. Motion).
Plaintiff testified in his deposition that, despite Chief Lewis's averment that the altercation between Plaintiff and Darnell Price on October 5, 2010, was the direct result of Plaintiff's "intentional, substantial and unreasonable intrusion into the private lives of the victims," the contact between the two was actually initiated by Price, who had been ordered to refrain from contacting Plaintiff. Pl. Dep. II 142-43. Plaintiff called the police, and an incident report was created by the responding officer, who stated in the report that he spoke to both Plaintiff and Price and listened to an audio recording revealing that Price did initiate contact with Plaintiff. Incident Report 10-5-10 (Ex. 72 to Def. Motion). Plaintiff argues that Chief Lewis had reckless disregard for the inaccuracy of his statement that the altercation on October 5, 2010, was a direct result of Plaintiff's actions because the incident was documented in an incident report created by a Town of Atlantic Beach Police Officer.
Plaintiff also argues that Chief Lewis's account of the incident on October 21, 2010, is inaccurate. Chief Lewis indicated that Plaintiff allegedly drove slowly passed Darnell Price's residence and pointed a video camera at the Prices and laughed at them. Arrest Warrant J-745105 (Ex. 79 to Def. Motion). Although Chief Lewis references an incident report in his affidavit, no incident report for October 21, 2010, has been produced by Defendants. Defendants did, however, produce a Voluntary Statement provided by Plaintiff to the Town of Atlantic Beach Police Department, in which Plaintiff tells a different story. Pl. Voluntary Statement (Ex. 74 to Def. Motion). Plaintiff's statement indicates that as he was driving home along Thirtieth Avenue onto Thirty-First Avenue, he saw Darnell Price seated on the front steps of a restaurant pointing a cell phone at him and laughing.
Plaintiff next argues that Chief Lewis's statement regarding the October 30, 2010, incident contains a false statement. Plaintiff argues that Chief Lewis references an incident on October 30, 2010, during which Plaintiff filmed Darnell Price near his church, and incident report number 10001229,
In sum, Plaintiff presents sufficient evidence to create an issue of fact as to whether Chief Lewis "deliberately or with reckless disregard for the truth made material false statements in his affidavit, or omitted from the affidavit material facts with the intent to make the affidavit misleading" such that the arrest made pursuant to that warrant was unsupported by probable cause.
With respect to the arrests on November 21, 2011, and November 29, 2012, as well as the search warrant executed on November 8, 2010, Plaintiff does not point to evidence supporting a lack of probable cause for § 1983 purposes other than the fact that Magistrate Judge Livingston found the November 8, 2010, search warrant and the November 21, 2011, arrest to be unsupported by probable cause, and another Magistrate Judge dismissed the November 29, 2012, arrest as a bond matter. As set forth above, this is insufficient to support a constitutional violation claim. Thus, an issue of fact exists only with respect to the arrest by Chief Lewis on November 8, 2010.
However, Chief Lewis is not a party to this action. Therefore, to hold either of the Defendants liable for his actions, Plaintiff must show that Chief Lewis acted pursuant to a policy or custom of Defendants. As stated above, Plaintiff must first identify the specific policy or custom "fairly attributable to the municipality as its own" that caused the alleged Constitutional violation.
"A municipal custom may arise if a practice is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law."
To the extent Plaintiff relies on an official policy to establish
From this language, it appears that Chief Lewis possessed final policymaking authority. However, "not every decision by every municipal official will subject a municipality to section 1983 liability."
For these reasons, summary judgment should be granted with respect to Plaintiff's false imprisonment claims arising from the November 8, 2010, November 21, 2011, and November 29, 2012, arrests and Plaintiff's Fourth Amendment violation claim arising from the execution of the November 8, 2010, search warrant.
Plaintiff alleges that Defendants violated his First Amendment rights by arresting him "for harassment and stalking type offenses, relating to his involvement in investigating the corruption and improprieties of the public officials in Defendant Town," and by arresting him "for attempting to attend a town council meeting which was open to the public" and by "threatening and attempting to intimidate Plaintiff for requesting public information, pursuant to the Freedom of Information Act." Compl. ¶¶ 102, 118. Plaintiff alleges that these actions were taken by Defendants for the ulterior purpose of driving Plaintiff from the Town of Atlantic Beach and preventing him from continuing his efforts "to expose the wrongful acts being committed by the public officials of Defendant Town," in violation of his "First Amendment rights to free speech, to peaceably assemble and petition the government for a redress of grievances." Compl. ¶¶ 116-17.
In essence, Plaintiff argues that Defendants violated his First Amendment rights by preventing him from investigating the actions of public officials within the Town of Atlantic Beach and disclosing his findings. As an initial matter, Plaintiff's allegation that he was arrested for attempting to attend a town council meeting is not supported by the evidence. Plaintiff's second arrest occurred after Plaintiff left a public meeting on November 21, 2011, when he was arrested for second degree harassment for driving slowing through a parking lot in which Darnell Price was parked. Arrest Warrant J-745160 (Ex. 100 to Def. Motion); Pl. Dep. I 39-43. Plaintiff fails to point to evidence that he was arrested for attending or attempting to attend a public meeting. His first arrest, on November 8, 2010, as averred by Chief Lewis, occurred as a result of Plaintiff filming or photographing Darnell Price or his family on several occasions. Arrest Warrant J-745105 (Ex. 79 to Def. Motion). His third arrest, on November 29, 2012, as averred by an HCPD officer, occurred as a result of Plaintiff videotaping Darnell Price in his office from outside the Town Hall. HCPD Arrest (Ex. 108 to Def. Motion). These two arrests, then, arose out of what Plaintiff characterizes as his investigative activities. Plaintiff has posted recordings of many of his findings on a youtube.com channel, "wd4edu."
The First Amendment right to free speech includes the right to be free from retaliation by a public official and prohibits government officials from subjecting an individual to "retaliatory actions, including criminal prosecutions, for speaking out."
The initial inquiry here is whether Plaintiff's conduct amounted to "speech." "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This, of course, includes discussions of ... forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes."
The next question is whether Defendants took some action that adversely affected Plaintiff's First Amendment rights. Because an issue of fact exists as to whether Chief Lewis had probable cause to arrest Plaintiff on November 8, 2010, likewise, an issue of fact exists as to whether Chief Lewis violated Plaintiff's First Amendment rights by arresting him for engaging in protected speech. The Supreme Court has not expressly addressed whether a right exists under the First Amendment to be free from a retaliatory arrest otherwise supported by probable cause. In
Finally, as to Plaintiff's first arrest, Plaintiff must show a causal relationship between his protected activity and the Defendants' conduct. To establish this causal connection, a plaintiff in a retaliation case must show, at the very least, that the defendant was aware of him engaging in protected activity.
However, for the same reasons discussed above as to Plaintiff's Fourth Amendment claims, Plaintiff also fails to present sufficient evidence to establish
Plaintiff alleges a cause of action for violation of the Fourteenth Amendment by generally repeating the various allegations set forth elsewhere in the complaint. Two types of claims generally arise out of the Fourteenth Amendment: due process and equal protection claims. The Due Process Clause of the Fourteenth Amendment states that "No state shall ... deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. To the extent Plaintiff has alleged a due process or equal protection claim, he has failed to present sufficient evidence to create a genuine dispute of fact as to those claims and, thus, summary judgment is appropriate.
If the district judge accepts this report and recommendation, the original federal jurisdiction claim will be dismissed and the only remaining claim will be Plaintiff's state law claims. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, "[t]he 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...." The Fourth Circuit has recognized that "trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished."
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (Document # 37) be granted on Plaintiff's federal claims, that the district judge decline to exercise jurisdiction over the state law claims, and that this case be dismissed in its entirety.
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:
Order Modifying Bond (Ex. 88 to Def. Motion). The order also provided that "any violation of the terms and conditions of this bond must be brought before the Honorable Steven H. John as soon as practicably possible."
