Opinion
C. A. 5:20-2888-RBH-KDW
07-01-2022
Theodore J. Bolick, Plaintiff, v. Officer Tomkins; John West; Jeff Benton; Linda Shelley; and Reginaldo E. Williams, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Theodore J. Bolick (“Plaintiff”), proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. This matter comes before the court on several motions, including cross motions for summary judgment. On February 18, 2022, Plaintiff filed a Motion for Summary Judgment. ECF No. 162. On May 4, 2022, Defendants Officer Tomkins, John West, Jeff Benton, and Linda Shelley, all employees of the Horry County Sheriff's Office at the time of the conduct in question, (collectively, the “HCSO Defendants”) filed a Motion for Summary Judgment and Response in Opposition to Plaintiff's Motion for Summary Judgment. ECF No. 182. Plaintiff filed his Response to the HCSO Defendants' Motion for Summary Judgment on May 20, 2022. ECF No. 188. The HCSO Defendants filed a Reply on May 27, 2022. ECF No. 192. Plaintiff also filed a Motion to Strike, wherein he asks the court to strike the affidavits attached to the HCSO Defendants' Motion. ECF No. 189. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters in cases involving pro se litigants and submit findings and recommendations to the District Court. Because the summary judgment motions are dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.
On the date Plaintiff filed his Motion for Summary Judgment, Defendant Reginaldo Williams had not yet been served with a Summons and Complaint. The Process Receipt and Return reflects that he was not served until May 11, 2022. ECF No. 190. Defendant Williams has since filed a Motion to Dismiss for Lack of Jurisdiction. ECF No. 195.
It appears, based on his affidavit, that the correct spelling of Defendant Tomkins is actually “Thompkins.” Accordingly, the undersigned will refer to this Defendant as Defendant Thompkins or Thompkins through this document.
I. Factual and Procedural History
Plaintiff initially filed this action in the Horry County Court of Common Pleas for the Fifteenth Judicial Circuit on July 30, 2020. ECF No. 1-1. Plaintiff alleges his extradition from North Carolina to South Carolina was unconstitutional. Id. at 4-5. Later, Defendants Phillip Thompson and Officer Thompkins removed the action to federal court on the basis that Plaintiff was attempting to bring a federal claim for violations of civil rights under the Fifth and Fourteenth Amendments to the United States Constitution. See ECF No. 1. On June 3, 2021, Defendant Thompson was dismissed with prejudice from this action, and Plaintiff's case proceeded solely as to Plaintiff's § 1983 claims against Defendants Thompkins and Doe. ECF No. 64. Plaintiff sought to amend and join additional parties on July 8, 2021. ECF No. 77. On September 2, 2021, Defendants Jeff Benton, Linda Shelley, Serina Hussey, and Phyllis Calloway were added as parties in this action, and Defendant John West was identified in place of John Doe. ECF No. 87. On September 29, 2021, Defendant Reginaldo Williams was added as a party to this action. ECF No. 102. On March 1, 2022, Defendants Calloway and Hussey were dismissed with prejudice from this action. ECF No. 168.
This Defendant had not yet appeared in this action at the time of the filing of the Motions for Summary Judgment. Therefore, any time this R&R references “Defendants” it is exclusive of Defendant Williams unless expressly stated.
In a previous R&R, the undersigned set forth a thorough timeline of events with citations to the record. ECF No. 56. However, for ease of reference, the undersigned will set forth a brief recitation of the relevant facts in this case. In July 2019, after failing to appear for trial, a South Carolina court tried Plaintiff in absentia and convicted him of three counts of second-degree burglary. Plaintiff was then arrested in North Carolina on March 2, 2020, by the United States Marshals on a fugitive arrest warrant out of Horry County, South Carolina. Plaintiff maintains he was processed into the Randolph County Detention Center (“RCDC”) in Asheboro, North Carolina. On May 1, 2020, the Governor of South Carolina sent a demand for extradition to the Governor of North Carolina. On May 15, 2020, the North Carolina Governor issued a warrant for Plaintiff's arrest. Plaintiff represents he was released on May 15, 2020, on an unsecured bond from RCDC. On May 19, 2020, the North Carolina Attorney General's Office sent the Randolph County Sheriff the Governor's Warrant, and a cover letter (referred to as the “advisory letter”) which outlined the procedure and requirements to follow under North Carolina's version of the Uniform Criminal Extradition Act (the “UCEA”). Plaintiff represents he was arrested again on May 22, 2020, and again processed into RCDC. Plaintiff appeared in Court on May 26, 2020 and was officially served with the Governor's Warrant from South Carolina at that time. Plaintiff indicates that while in court he was informed of his right to petition the court for a writ of habeas corpus and his right to counsel. Plaintiff represents that he waived his right to counsel but stated he would file a pro se writ of habeas corpus “as was his custom and practice.” ECF No. 1-1 at 6. The record includes a document, titled “Judgment/Order or Other Disposition,” dated May 26, 2020 and signed by Judge Scott Etheridge in Randolph County, which provides the following information: “Governors Warrant Issued/Bond Revoked/continue to 6-9-20 for review to see if Deft picked up.” ECF No. 44-1 at 55.
The facts, as forth in this R&R, appear in Plaintiff's Complaint; Plaintiff's Motion for Summary Judgment; Defendants' Motion for Summary Judgment and Response in Opposition to Plaintiff's Motion for Summary Judgment; The Horry County Public Index, available at https://publicindex.sccourts.org/Horry/PublicIndex/PISearch.aspx[Case No. 2016A2620602245]; and the South Carolina Appellate Case Management System (C-Track), available at https://ctrack.sccourts.org/public/caseSearch.do [Case No. 2020-001497].
Two days later, on May 28, 2020, Plaintiff was taken into custody by Defendant Thompkins and “Officer John Doe” (now identified as Defendant John West) at the direction of Sheriff Phillip Thompson. Plaintiff maintains that these officers took him into custody over his protest. Plaintiff maintains he was seized and taken into custody without being allowed the opportunity to lawfully petition for a writ of habeas corpus pursuant to North Carolina General Statutes Chapter 17, et. al, and the North Carolina UCEA. Plaintiff was nevertheless transported to the Horry County Detention Center (“HCDC”). The HCSO Defendants maintain, and have provided an e-mail supporting the fact that, on May 26, 2020, Defendant Reginaldo Williams (“Williams” or “Reggie Williams”), e-mailed Defendant Linda Shelley, an administrator with the HCSO, and informed her that Plaintiff was “ready” to be picked up, i.e. extradited back to South Carolina. Acting pursuant to this notice, the HCSO Defendants carried out the process of taking custody of Plaintiff and bringing him back to South Carolina.
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging several named Defendants failed to comply with North Carolina General Statute § 15A-730 prior to his transport to South Carolina. Plaintiff alleges that the named Defendants acted in collusion with each other and in such a way as to deny Plaintiff his lawful right to petition for a writ of habeas corpus in Randolph Superior Court in violation of Plaintiff's Fifth Amendment due process rights and his equal protection rights under the Fourteenth Amendment.
The UCEA, codified by the North Carolina General Assembly at N.C. Gen. Stat. §§15A-721 to 750, governs the interstate transfer of fugitives from justice who are found in North Carolina. Section 15A-730 provides,
[n]o person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
II. Standard of Review
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. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
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, 322 (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, 391 (4th Cir. 1990).
III. Argument
A. Plaintiff's Motion to Strike
Before the undersigned are cross motions for summary judgment. The HCSO Defendants filed four affidavits in support of their Motion and Response, including Affidavits from Defendants Shelley, West, Benton, and Thompkins. Plaintiff filed a Motion to Strike these affidavits, asking this court to strike the affidavits as inappropriate. ECF No. 189. Plaintiff argues these are “sham affidavits,” manufactured by counsel for the HCSO Defendants, which contain “falsehoods” meant to sham this court into granting summary judgment on behalf of Defendants. ECF No. 189 at 2. Plaintiff further argues that the “exact identical wording” is used in the documents. Id. Plaintiff further argues that Defendants Thompkins and West provided self-serving statements that are contrary to the responses in their discovery requests. Id. at 3. Similarly, Plaintiff argues that Defendant Shelley's affidavit contains self-serving statements, as well as statements purportedly on behalf of the entire Horry County Sheriff's Office, which Plaintiff maintains is improper. Id. at 5.
Known as the “sham affidavit” doctrine, the Fourth Circuit has long held that a party against whom summary judgment has been sought cannot create a question of fact by identifying discrepancies in his own account of the facts. Wilson v. Gaston County, NC, 685 Fed.Appx. 193, 205 (4th Cir. 2017). The purpose of the doctrine is meant to deter litigants from generating issues of fact by submitting information in the affidavit that is contrary to deposition testimony. Id. Plaintiff appears to argue that these Defendants have submitted affidavits with contrived statements of fact to merit a summary judgment ruling. The undersigned notes initially that there are no depositions or deposition testimony of record in this case.
Nevertheless, in reviewing the affidavits provided by Defendants, the undersigned disagrees that they use “identical wording” through the affidavits. It is true, for example, that all four affidavits state that the affiant is over the age of eighteen and competent to provide the affidavit. Other paragraphs within the affidavits contain similar language, to the extent it applies to the facts at issue in this case. However, each affidavit clearly speaks to the individual knowledge of each affiant, and each affiant signed the affidavit in the presence of a notary. Thus, each affiant is swearing to this information being accurate and of their own testimony. While Plaintiff alleges that the affidavits contradict Defendants' discovery responses, he has not provided specific instances of contradictory statements in Defendants Thompkins and West's affidavits. The undersigned has reviewed the affidavits and does not find the two documents to be in direct opposition to each other. The only specific information Plaintiff provides as contradictory or inadmissible is from Defendant Shelley. He points to several statements in the affidavit that he argues are inadmissible because he alleges the statements discuss facts on behalf of the Horry County Sheriff's Office. Again, the undersigned disagrees.
The fact that an attorney may have assisted in the preparation does not, on its face, suggest the affidavit is a sham. See Sanchez Carrera v. EMD Sales, Inc., 402 F.Supp.3d 128, 142 (D. Md. 2019) (“The fact that the declarations at issue here use similar language and may have been prepared by an attorney does not mean those affidavits are inaccurate or not based upon the declarants' personal knowledge, as required by Rule 56.”).
Defendant Shelley testified to her understanding of the general process followed by her employer, Horry County Sheriff's Office. Plaintiff argues what Defendant Shelley does generally as an employee of the HCSO is “irrelevant.” Plaintiff overlooks the purpose of providing this information, that is to show that, according to Defendant Shelley, there was no reason to question the information she received from a Randolph County official with respect to the extradition proceedings. One of the issues raised by Plaintiff is whether the proper extradition proceedings were followed; therefore, the undersigned does not find this information to be irrelevant on its face, and even were the information to be extraneous, it would not invalidate the rest of the information provided in the affidavit. See Burt v. Ozmint, No. CIV.A. 3:11-247-SB, 2012 WL 1032483, at *5 (D.S.C. Jan. 26, 2012), report and recommendation adopted, No. CIV.A. 3:11-247-SB, 2012 WL 1031924 (D.S.C. Mar. 27, 2012), aff'd, 479 Fed.Appx. 551 (4th Cir. 2012)(declining to strike affidavit of individual attesting to grievances by the plaintiff, finding it within her role as Branch Chief of the Inmate Grievance Branch for SCDC even though she was not a party to the case); Glass v. Anne Arundel Cnty., 38 F.Supp.3d 705, 712 (D. Md. 2014), aff'd, 716 Fed.Appx. 179 (4th Cir. 2018) (explaining that a court uses a “scalpel” to strike portions of an affidavit that do not satisfy Rule 56).
Plaintiff further argues that in two paragraphs Defendant Shelley references an e-mail from District Attorney (“D.A.”) Reggie Williams (another named Defendant who was more recently served in this case), which Plaintiff objects to as inadmissible because he alleges they are not authenticated. Defendant Shelley avers that the e-mail in question was personally received by her and was previously attached to her records custodian affidavit. Coincidentally, this is the same email that Plaintiff has referenced in his discovery requests (ECF No. 133-2) and has previously been relied upon by some of the named Defendants in filing a Motion to Dismiss. ECF No. 44-2. This e-mail has been a part of the record prior to either party moving for summary judgment. Plaintiff also takes issue with paragraph 29, wherein Defendant Shelley references an e-mail sent by Defendant Benton to Thompkins and West to take Plaintiff into custody. Defendant Shelley is copied on this e-mail; therefore, she personally received it, and she indicates she is providing a true and accurate copy kept in the course of business for HCSO. Defendant Shelley can indicate in her affidavit whether she received an e-mail, and therefore the basis for testifying to its authenticity is based upon her own personal knowledge.
While Plaintiff may refute the statements made in the affidavits, the undersigned does not find that the affidavits are inadmissible under the Federal Rules of Civil Procedure. Under Federal Rule of Civil Procedure 56(c)(4), “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Here, the undersigned finds that as to the e-mails, Defendant Shelley has provided sufficient information to personally identify the e-mails and provided a copy of these e-mails in support of her affidavit. After reviewing the evidence of record and considering the arguments made by Plaintiff as to all four affidavits, the undersigned recommends denying Plaintiff's Motion to Strike the affidavits of Defendants. ECF No. 189.
B. Plaintiff's Motion for Summary Judgment
Plaintiff has moved for summary judgment against Defendants Thompkins and West, arguing that the undisputed facts show that these two Defendants violated N.C. Gen. Stat. § 15A-730, and therefore summary judgment is appropriate as to his claims that these two Defendants violated his constitutional rights. Defendants Thompkins and West were both involved in the transport of Plaintiff from North Carolina to South Carolina after Plaintiff appeared for a hearing.
Plaintiff appears to make no other arguments in favor of summary judgment or otherwise provide any argument as to why summary judgment is appropriate to Defendants Benton and Shelley.
Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. West v. Askins, 487 U.S. 42, 48 (1988). Plaintiff's argument is that Defendants are persons acting under state law who violated his rights in refusing to abide by North Carolina's version of the UCEA and allow him the opportunity to file a writ of habeas corpus challenging the Governor's Warrant. In support of his Motion, Plaintiff argues that he was served with a Governor's Warrant that had attached to it an “advisory letter” from the North Carolina Extradition Secretary Angie West Byrd specifically directing the reader's attention to N.C. Gen. Stat. § 15A-730 and the right of Plaintiff to file a writ of habeas corpus. Declaration of Theodore Bolick, ECF No. 162-1. Plaintiff argues that this letter further advised “officers” that the failure to allow a person to file a writ was considered a misdemeanor in North Carolina. Aff. of Bolick, ¶ 11. He argues that this is the most “telling and compelling” document, which he posits sets out his right to apply for a writ of habeas corpus.
This letter, addressed to Sheriff Greg Seabolt of Randolph County, provides as follows:
Upon Arrest, I respectfully call your attention to N.C. Gen. Stat. § 15A-730. This statute provides that before delivering the accused to the agent by the demanding state, the accused shall first be taken by you before a judge of a court of record in this state, who shall inform him/her, 1. Of the demand made for their surrender and of the crime with which they are charged. 2. The entitlement to counsel, if indigent.
3. A reasonable time within which he/she may apply for a Writ of Habeas Corpus.ECF No. 44-1 at 37 (emphasis in original letter). Plaintiff believes this document informed Defendants Thompkins and West of his clearly established rights concerning extradition to another state. Plaintiff states that, though Thompkins and West were aware of this letter, Defendant Thompkins signed the back of the Governor's Warrant, informed Plaintiff that “this decision” was above his paygrade, and Defendants Thompkins and West returned Plaintiff to South Carolina. Aff. of Bolick, ¶¶ 14-16. Plaintiff declares that no judge has ever ordered his return to South Carolina, and that he has continually objected to the return of his person to South Carolina without having had the chance to file a writ of habeas corpus. Aff. of Bolick, ¶¶ 17-18.
Defendants first argue that the advisory letter was specifically directed to the Randolph County Sheriff, rather than to any HCSO employees, and outlines the extradition procedure in North Carolina. Therefore, Defendants argue that the obligation to comply with North Carolina extradition proceedings lies with North Carolina law enforcement officials who conducted the arrest. Defendants Thompkins and West further argue that despite Plaintiff's protestations to the contrary, at all times relevant to transporting Plaintiff to South Carolina, they were acting pursuant to notice provided by D.A. Reggie Williams that Plaintiff was ready to be transported back to South Carolina by the HCSO. Defendants further dispute receiving a copy of the advisory letter. Because the HCSO Defendants also move for summary judgment on similar grounds, this argument will be addressed later in this R&R.
On May 1, 2020, the Governor of South Carolina sent a demand for extradition to the Governor of North Carolina. On May 15, 2020, the North Carolina Governor issued a warrant for Plaintiff's arrest. On May 19, 2020, the North Carolina Department of Justice sent the advisory letter outlining extradition procedures to the Randolph County Sheriff. On May 22, 2020, Plaintiff was arrested on the Governor's Warrant. On May 26, 2020, in accordance with N.C. Gen. Stat. § 15A-730, Plaintiff was taken before the court and advised of his rights. Plaintiff indicated that while he waived the right to counsel, he would be filing a habeas petition.
The Judgment/Order on the extradition charge states that a Governor's Warrant was issued, bond was revoked, and the case was continued “to 6-9-20 for review to see if Deft picked up.” ECF No. 44-1 at 55. In other words, it appears that, as noted by the information in the advisory letter, the process outlined under N.C. Gen. Stat. § 15A-730 was followed. On that same day, May 26, 2020, an attorney with the Randolph County District Attorney's Office e-mailed the Horry County Sheriff's Office, informing HCSO that Plaintiff was “ready to be picked up.” Two days later, Defendants Thompkins and West, acting pursuant to this notice, took custody of Plaintiff and transported him to South Carolina. The only conceivable question that remains is, assuming that Plaintiff did in fact notify the judge of his intent to seek habeas relief, whether, pursuant to N.C. Gen. Stat. § 15A-730, he was afforded a reasonable time to seek habeas relief.
In considering Plaintiff's Motion, the undersigned notes a distinction between whether Plaintiff was given “reasonable time” to file a writ and whether Plaintiff has provided sufficient evidence to determine whether Defendants Thompkins and West are personally responsible for the deprivation a constitutional right. For the reasons outlined in analyzing Defendants' Motion later in this R&R, it was not the responsibility of Defendant Thompkins and West to ensure compliance with the pre-extradition proceedings in the North Carolina extradition statute. Acting pursuant to their role as officers with HCSO, Defendants Thompkins and West were informed that Plaintiff was ready for extradition and ordered to take him into custody. Plaintiff provides his own testimony to support his argument that both Defendant Thompkins and West were somehow aware of and responsible for the role North Carolina officials played in the North Carolina extradition proceedings. However, at the summary judgment stage, a motion is granted only when, as a matter of law, judgment in favor of the moving party is appropriate.
Defendants have filed their own affidavits with exhibits to refute Plaintiff's claims. Defendant Shelley stated that on May 26, 2020, after receiving the e-mail from D.A. Williams stating Plaintiff was “ready to be picked up,” she understood that to mean there were “no further issues” regarding North Carolina procedures and Plaintiff was ready to be picked up. Affidavit of Linda Shelley, ¶ 27; ECF No. 182-1. She further indicated that she e-mailed Defendant Jeff Benton to request he assign two deputies to take custody of Plaintiff. Aff. of Linda Shelley, ¶ 28. Defendant Shelley explained that she put together the packet of information to send with the two officers effectuating the transport, and this packet did not include the “advisory letter” as mentioned by Plaintiff. Aff. of Shelley, ¶ ¶ 30, 34. Defendant Thompkins also provided an affidavit wherein he averred that he understood everything to be in order regarding the transfer of Plaintiff. Affidavit of James Thompkins, IV, ¶ 16; ECF No. 182-3. He further stated that at no point did anyone with the Randolph County Sheriff's Office indicate there were any issues with Plaintiff's extradition. Aff. of Thompkins, ¶ 19. Defendant Thompkins also stated that while Plaintiff was making many complaints, including suing the courts, in his experience this is routine behavior by detainees. Aff. of Thompkins, ¶¶ 20-21. Similarly, Defendant West indicated that he was unaware that there were any issues related to Plaintiff's extradition, and he does not have any recollection of seeing a letter from the North Carolina Attorney General's Office. Affidavit of John West, ¶¶ 12, 18; ECF No. 182-4.
After reviewing the information available in the record and considering the case law provided below, the undersigned recommends denying Plaintiff's Motion for Summary Judgment.
Plaintiff argues in his Response in Opposition to Defendants' Motion for Summary Judgment that their request for summary judgment is inappropriate “as it is based on hotly contested statements and allegations.” ECF No. 188 at 10. Applying that same logic to Plaintiff's Motion for Summary Judgment would make his own motion inappropriate, as well.
C. Defendants' Motion for Summary Judgment
Defendants have also filed a Motion for Summary Judgment. In their Motion, they allege summary judgment is appropriate for several reasons. The undersigned will address each argument in turn.
1. Plaintiff's § 1983 Claim
The HCSO Defendants argue that Plaintiff cannot establish that, as a matter of law, these Defendants participated in a violation of his constitutional rights sufficient to support a claim pursuant to § 1983. In support of this argument, they argue first that Plaintiff has not established a violation of N.C. Gen. Stat. § 15A-730. Defendants argue that this statute is clear that a judge is only required to “fix a reasonable time” for Plaintiff to apply for a writ, if Plaintiff so desires. Defendants argue that the North Carolina court record contains no evidence to establish that Plaintiff ever expressed an intent to apply for a writ. As support for this argument, Defendants point to Judge Etheridge's Order which states that the matter was “continued to 6-9-20 for review to see if Deft picked up.” ECF No. 44-1. Defendants argue that this order contradicts any argument by Plaintiff that he indicated he intended to file a writ. The undersigned believes there is a question of fact as to whether Plaintiff indicated he planned on filing a writ of habeas corpus, and whether he asserted this right is therefore in dispute. While Defendants are correct that, on its face, Judge Etheridge's Order is silent as to whether Plaintiff asserted his desire to seek habeas relief, Plaintiff has provided his own testimony that he intended to file a writ. Therefore, the undersigned recommends denying summary judgment on this basis because a question of fact remains as to whether Plaintiff asserted the desire to file a writ and whether Plaintiff was then afforded a reasonable time upon which to do so.
However, whether it was the conduct of the HCSO Defendants that violated Plaintiff's rights is a different inquiry. Defendants argue that Plaintiff has not shown that the actions of the HCSO Defendants caused any violation of his rights. Plaintiff argues that Defendants are responsible for the alleged violation of his constitutional rights because they should have known, based in part on the advisory letter, that a judge must order a prisoner to be returned to a state. In choosing to effectuate the transfer of custody back to South Carolina, Plaintiff believes that the HCSO Defendants are responsible for participating in the violation of his rights.
On or around March 2, 2020, HCSO received notice that Plaintiff had been arrested in North Carolina. Aff. of Shelley, ¶ 3 On May 15, 2020, the North Carolina Governor issued a governor's extradition arrest warrant for Plaintiff's arrest, detention, and delivery to Defendant Sheriff Phillip Thompson with HCSO (also referred to as the “Governor's Warrant”). Defendant Shelley is the administrative assistant for the HCSO Warrants/Fugitives Division. Aff. of Shelley, ¶ 3. On May 26, 2020, Defendant Shelley stated that she was notified by an e-mail from Reggie Williams (“D.A. Williams”), an attorney with the Randolph County District Attorney's Office, that Plaintiff had been served with the Governor's Warrant. Aff. of Shelley, ¶ 26. Defendant Shelley provided a copy of this e-mail by attaching it to a records custodian affidavit previously filed in this case. It was this e-mail, according to the HCSO Defendants, that they relied upon to order Defendants Thompkins and West to transfer Plaintiff from North Carolina to South Carolina.
Until recently, unauthenticated documents were precluded from consideration at the summary judgment stage. Kobe v. Haley, No. CA 3:11-1146-TMC, 2013 WL 4067921, at *6 (D.S.C. Aug. 12, 2013); see, e.g., Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (unsworn, unauthenticated documents cannot be considered on a motion for summary judgment). The 2010 amendments to Rule 56(c)(2) eliminated the requirement that documents submitted in support of a summary judgment motion be authenticated. Id. (citing Brown v. Siemens Healthcare Diagnostics, Inc., 2012 WL 3136457, at *6 (D. Md. July 31, 2012)). Instead, Rule 56(c)(2) now prescribes a “multi-step process by which a proponent may submit evidence, subject to objection by the opponent and an opportunity for the proponent to either authenticate the document or propose a method to doing so at trial.” Id. (quoting Foreword Magazine, Inc. v. OverDrive, Inc., No. lO-cv-1144, 2011 WL 5169384, at *2 (W.D. Mich. Oct.31, 2011)). Further, as previously explained, Rule 56(c)(4) provides that affidavits must be made on personal knowledge, set out facts that would be admissible in evidence, and be made by someone competent to testify on the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4).
A party seeking to introduce evidence must “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed R. Evid. 901(a). The burden to authenticate under Rule 901 is not high. U.S. v. Recio, 884 F.3d 230, 236 (4th Cir. 2018). Regarding the authentication of an e-mail, the court cannot rely solely on the address or username provided in the document, but must also use additional information, such as “knowledge that the communication was prompted by the recipient, or content, the identifying or unique characteristics inherent in the message. Colborn v. Forest Good East, LLC, 2020 WL 6437747, at *3 (E.D. N.C. ) (quoting U.S. v. Shah, 125 F.Supp.3d 570, 577 (E.D. N.C. 2015)).
Here, Defendant Shelley provided an affidavit testifying to the fact that the e-mail was a true, accurate, and complete copy of a record which was kept in the normal course of business by HCSO. ECF No. 44-2. In reviewing the e-mail, the sender is identified as Reginaldo Williams, and while part of his e-mail is redacted, it is clearly from someone identified as Reginaldo E. Williams who has an e-mail address with nccourts.org. The recipient is identified as a Linda Shelley. The contents or body of the e-mail indicate that the sender is a Reggie Williams from the Randolph County District Attorney's Office. The e-mail includes a disclaimer that e-mail correspondence from that sender may be subject to North Carolina public records laws, and includes a telephone number, that though partially redacted, includes a North Carolina area code. Previously, Defendant Shelley had started the process to obtain a Governor's Warrant for Plaintiff. Accordingly, the undersigned finds that the e-mail is properly authenticated, despite Plaintiff's continued arguments that the e-mail has not been authenticated but otherwise does not dispute its validity. In fact, Plaintiff amended his Complaint during the pendency of the litigation to name Reginaldo Williams as a Defendant.
A defendant cannot be held liable in a § 1983 action unless he or she participated in the alleged constitutional deprivation of a plaintiff's rights. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). The Fourth Circuit has found that a violation of a state's extradition laws may support a claim under § 1983 when “the violation of state law causes the deprivation of rights protected by the Constitution and the statutes of the United States.” Wirth v. Surles, 562 F.2d 319, 322 (4th Cir. 1977). Therefore, Plaintiff must establish that the HCSO Defendants participated in the alleged constitutional deprivation, i.e. that the HCSO Defendants participated in preventing Plaintiff from having a “reasonable time” to file a writ of habeas corpus prior to extradition.
In Wirth, the Fourth Court stated that law enforcement officials cannot simply ignore the clear mandates of state and federal extradition laws in the apprehension and transportation of fugitives. Id. at 323. Wirth is distinguishable from this case. In Wirth, the plaintiff was arrested by two Georgia police officers after an all-points bulletin went out by a South Carolina Police Department. Id. at 321. A South Carolina officer then crossed into Georgia, took custody of the plaintiff, and transported him to South Carolina without any extradition proceedings. Id. (emphasis added). In the present case, the HCSO Defendants were acting, or at least, they believed to be acting, pursuant to valid extradition proceedings. This belief was bolstered by the fact that a district attorney from Randolph County initiated contact via e-mail with HCSO to let them know Plaintiff “was ready to be picked up” after having previously initiated proceedings to have him extradited.
In analyzing whether, under these facts, the HCSO Defendants were involved in the alleged violation of Plaintiff's rights, the undersigned finds McBride v. Soos, 679 F.2d 1223 (7th Cir. 1982) instructive. In McBride, the plaintiff alleged that law enforcement officers in Indiana illegally extradited him from Missouri to Indiana. 679 F.2d at 1224. In so arguing, the plaintiff claimed that the Indiana law enforcement officers deprived him of due process by extraditing him to Indiana without first complying with the requirements of the extradition laws of Missouri, the state in which he had been arrested on an outstanding Indiana warrant. Id. at 1225. More to the point, the evidence in McBride consisted of the fact that the plaintiff was not afforded a post-arrest hearing “with all practicable speed” as required by Missouri law, that the fugitive warrant failed to specify a definite time period, as required by Missouri law, and that the plaintiff was not afforded a preextradition hearing as required by Missouri law. Id. at 1225-1226. The district court determined that the Indiana law enforcement officers were not responsible for complying with two of the Missouri statutes; rather, that duty rested “entirely and exclusively” with the Missouri law enforcement officials. Id. at 1226. However, the district court did find that the defendants were personally involved in causing the violation of the Missouri law pertaining to the right to have a pre-extradition hearing. Id. In supporting this finding, the district court found that the failure of the defendants to “ensure that the statutory hearing” had been held caused the plaintiff's deprivation, at least in part. Id.
The Seventh Circuit disagreed that the defendants were personally involved in a violation of this statute. Id. at 1227. In so finding, the Seventh Circuit reasoned that the Missouri Statute requires Missouri authorities to hold a judicial hearing prior to delivering a fugitive to a demanding state, but it does not impose a duty on the demanding state agent to ensure any such hearing is held. Id. (emphasis added). Further, the Seventh Circuit provided, “it is unreasonable to require the demanding state agents to be familiar with the procedural safeguards enacted in the asylum state's extradition statutes and then further require them to ensure that the statutory safeguards have been followed.” Id. Similarly, an Eighth Circuit opinion, Brown v. Nutsch, 619 F.2d 758 (8th Cir. 1980), is analogous. The Brown Court held that state court officers of a demanding state, carrying out a facially valid extradition, did not have a duty to ensure that extradition papers were in order. 619 F.2d at 765.
The undersigned finds the analysis found in these cases to be determinative in the present case. Plaintiff argues that both the “advisory letter” provided by the Attorney General's Office and his protestations regarding the inability to file a writ affirmatively prove that the HCSO Defendants are liable under § 1983. His argument is that a jury could find that: (1) Defendants Thompkins and West read the advisory letter from Angie West Byrd; (2) that they chose to extradite Plaintiff anyway; (3) that a judge is the only person who can order a person's extradition; (4) that Defendants are lying to avoid prosecution; and (5) Defendants actions denied Plaintiff his right file to writ. Pl's Br. at 15. These “disputed facts” rest on the underlying assumption that the law requires the HCSO Defendants, after receiving notice from a district attorney that they can pick up a fugitive, to inquire into whether the process outlined by North Carolina law had been followed. Further, this would require a finding that the act of removing Plaintiff from North Carolina, rather than the alleged failure to afford Plaintiff a reasonable time to file a writ pursuant to North Carolina law, resulted in the alleged deprivation of his rights. However, as set forth in Brown and McBride, this is contrary to the law.
Plaintiff argues that at the time Defendants Thompkins and West arrived in North Carolina to take custody of him, he directed their attention to this advisory letter and asked them to verify that no judge had ordered him returned to South Carolina. ECF No. 162-1. He does not allege he had any such conversation with Defendants Shelley and Benton. For their part, Defendants Thompkins and West do recall Plaintiff “making many complaints,” and aver that they had no recollection of being provided or seeing documents from the North Carolina Attorney General's Office. ECF No. 182-3, ¶ 20; ECF No. 184-4, ¶ 13.
To find liability on the part of these Defendants, one must agree that the HCSO Defendants, law enforcement officers in South Carolina, are responsible for inquiring into the extradition procedure that took place in North Carolina and ensuring that the process outlined in the North Carolina extradition statute was followed. This is contrary to the holding in both McBride and Brown. More to the point, it is contrary to a finding that the HCSO Defendants, as required under § 1983, and reiterated by the Fourth Circuit, contributed to the deprivation of Plaintiff's constitutional rights by following orders to extradite Plaintiff. The facts, as supported by the record, show that upon receiving an e-mail from the Randolph County District Attorney's Office notifying her that Plaintiff was ready to be picked up, Defendant Shelley compiled the necessary documents to effectuate extradition. Defendant Benton's only involvement was to assign Defendants Thompkins and West to pick up Plaintiff. Defendants Thompkins and West received the appropriate paperwork from their supervisors and took custody of Plaintiff. There is no evidence in the record that at any time in the process did anyone from the Randolph County Sheriff's Office raise any issues or concerns with the Plaintiff's extradition. Plaintiff tries to place the burden on Defendants Thompkins and West by arguing that they did or should have “read the documents” and known of the “warnings and requirements” contained in the advisory letter. However, assuming as Plaintiff suggests that they did see the letter, liability on their part would still hinge upon a finding that they are tasked with knowing North Carolina officials did not follow the outlined procedures, which is contrary to McBride and Brown. Plaintiff's argument further ignores the fact that the HCSO Defendants received an e-mail indicating Plaintiff could be transferred, a step that happens only after the requirements outlined in the advisory letter.
Worth mentioning is the point the HCSO Defendants make regarding N.C. Gen. Stat. § 15A-730. These Defendants state that this statute explains what must occur before a fugitive can be delivered to a demanding state. Similarly, the advisory letter is directed to the Sheriff of Randolph County and sets forth instructions on what to do prior to the surrender of a fugitive to a demanding state.
Indeed, Defendant Shelley testified in her affidavit that she took no action until she received the notification via e-mail that Plaintiff could be picked up by HCSO. Plaintiff also ignores the fact that when Defendants Thompkins and West came to take custody of Plaintiff, no North Carolina official indicated that there was any issue or that Plaintiff intended to file a writ. Nor are Plaintiff's intentions noted on the Judgment/Order signed on the day of his hearing. At its core, a finding that the HCSO Defendants are liable requires a finding that there was an affirmative duty to request proof that the laws of another state were appropriately complied with, rather than relying on information provided by the Randolph County District Attorney. The undersigned does not find this to be an accurate representation of the law.
By the time the HCSO Defendants became involved, the procedures outlined in the North Carolina UCEA by all accounts, should have been completed by someone other than the HCSO Defendants. In short, the HCSO Defendants relied upon a facially valid warrant, along with an email from a district attorney, to carry out the directive provided by their employer; that is to take custody of Plaintiff and bring him back to South Carolina, after such time that the safeguards put in place pursuant to N.C. Gen. Stat. § 15A-730 would have been met. The undersigned recommends finding these Defendants cannot be held liable for any alleged constitutional deprivation Plaintiff argues under § 1983.
The HCSO Defendants also somewhat summarily argue that Plaintiff has failed to allege he suffered an injury sufficient to support a valid claim under § 1983. Plaintiff does not appear to specifically address this claim. The HCSO Defendants argue that Plaintiff cannot demonstrate that another habeas filing in the North Carolina courts would have changed the outcome of his extradition to South Carolina or that he suffered any actual damages. As previously mentioned, a violation of extradition laws may support a claim under § 1983. In Brown, the Eighth Circuit explained that individuals have a right not to be imprisoned or dealt with by states in disregard of the safeguards afforded under the Constitution, and the laws of the United States. Brown v. Nutsch, 619 F.2d 758 (8th Cir. 1980). Here, Plaintiff alleges that he was prevented from filing for habeas relief despite affirmatively stating his desire to do so. Assuming Plaintiff's allegations are accurate, there is a conceivable dispute regarding whether some conduct prevented Plaintiff from exercising this right, and as a result whether he incurred injury by way of a due process violation as a result. However, as indicated in this R&R, the undersigned does not find that any alleged injury was a result of the conduct of the Defendants moving for summary judgment. Accordingly, the undersigned does not need to reach the issue of whether the HCSO Defendants should be granted summary judgment under a theory that Plaintiff cannot prove damages in this case.
2. Defendants are entitled to qualified immunity.
Even if summary judgment was inappropriate as to these Defendants, the undersigned agrees that Defendants are entitled to qualified immunity. Defendants argue that as officers of HCSO, they would not have understood their conduct in transporting Plaintiff back to South Carolina violated a clearly established law. Plaintiff disagrees. Plaintiff argues that Defendants have failed to provide a good faith explanation of why they failed to ensure Plaintiff had received extradition proceedings. Plaintiff further argues that Defendants' reliance on an alleged e-mail from a lawyer, rather than a judge's order is determinative in rejecting a qualified immunity argument. Further, as to Defendant Thompkins and West, Plaintiff argues they cannot simply argue that they did not see the advisory letter because they have a duty to “know the law governing their duties.” For the reasons previously set forth in this R&R, the undersigned disagrees.
In Harlow v. Fitzgerald, the Supreme Court held that government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. 457 U.S. 800 (1982). In evaluating whether qualified immunity applies, the court must determine: (1) whether the facts alleged, taken in the light most favorable to Plaintiff show that Defendants' conduct violated a constitutional right; and (2) whether the right was clearly established at the time of the complained of misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Fourth Circuit has stated that the purpose of qualified immunity is to ensure that government officials can perform their job free from the specter of endless and debilitating lawsuits. Torchinksy v. Siwinksi, 942 F.2d 257, 261 (4th Cir. 1991). Whether a right allegedly violated by defendants was clearly established is a matter of law for the court and is therefore ripe for decision at the summary judgment stage. Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). Here, the inquiry is whether South Carolina officials had a clearly established right or obligation to inquire into whether North Carolina officials properly effectuated their state's extradition proceedings.
At issue here are the extradition laws of North Carolina and whether Defendants, who are all employees of the State of South Carolina, can be sued for an alleged violation of North Carolina's version of the UCEA. Police officers may assert the defense of qualified immunity for actions brought pursuant to § 1983 claiming that a person was transported in violation of extradition laws. Street v. Cherba, 662 F.2d 1037, 1039 (4th Cir. 1981). Further, “it is well-established that a police officer is entitled to qualified immunity from an assessment of damages against him if he acted with a reasonable and good faith belief that he had acted lawfully.” Id.; Young v. Collier, No. 6:03-cv-03640-JFA, 2006 WL 2706965, at *4 (D.S.C. Sept. 18, 2006).
Plaintiff argues he had a right to seek a writ prior to being transported to South Carolina, and that a violation of this right occurred. In turn, the HCSO Defendants argue that their conduct did not violate a constitutional right in that they were acting pursuant to formal extradition proceedings after receiving confirmation from a North Carolina official that Plaintiff was “ready.” In Young, the Fourth Circuit found that a police officer's conduct in transporting a plaintiff pursuant to a facially valid extradition order was not unlawful. 2006 WL 2706965, at *4.
As it pertains to the facts in this case, Defendant Shelley explained in her affidavit that she coordinates fugitive extraditions. Shelley Aff. ¶ 3. Upon finding out that a fugitive is located in another state and will not waive extradition, Defendant Shelley gathers the necessary records to obtain a Governor's Warrant. Shelley Aff. ¶ 4. Defendant Shelley then explained that HCSO does not have any further involvement until her office receives notice that a Governor's Warrant has been served and the fugitive is ready to be picked up. Shelley Aff. ¶ 5. Acting pursuant to that notice by an official, Defendant Shelley coordinated Plaintiff's extradition. Like the police officers in Young, Defendants Thompson and West were acting pursuant to what they believed to be valid orders, and Plaintiff has not produced any evidence, beyond his assertion that he told Thompson and West that he wanted to file a writ, that they were not acting under a good faith belief that Plaintiff was ready to be extradited. Indeed, the Fourth Circuit in Young explicitly stated that the police officers were under “no duty to inquire into the propriety of the underlying extradition procedures.” Id.
To find that the HCSO Defendants' conduct violated Plaintiff's rights would necessarily imply that they had an affirmative obligation to inquire whether North Carolina officials had followed proper protocol. Moreover, it would require these Defendants to question whether the notice to pick up Plaintiff was accurate and to have known that Plaintiff asserted his right to file a writ, despite there being no such indication on paper or by any official in North Carolina.
Additionally, the undersigned finds that Plaintiff has not provided any case law to suggest that the law has been “clearly established” that a fugitive cannot be removed from an asylum state prior to the filing of a habeas petition. Therefore, even assuming the HCSO Defendants were somehow aware that he had not yet filed a writ, the undersigned does not find that they would have known they were violating his constitutional rights at that time by removing him pursuant to orders from their employer. The HCSO Defendants have provided an e-mail from a district attorney in Randolph County informing them that Plaintiff was “ready” for pick up, i.e. that Plaintiff had been afforded his extradition rights. Thus, the HCSO Defendants had a reasonable basis to believe that any “clearly established” right to file a habeas petition had been afforded. The undersigned agrees with the HCSO Defendants that Plaintiff cannot demonstrate that they would have understood their conduct to have violated clearly established law, and therefore Plaintiff's claims are subject to qualified immunity.
IV. Recommendation
Based on the foregoing, it is recommended that Plaintiff's Motion for Summary Judgment. ECF No. 162, be denied, and the HCSO Defendants' Motion for Summary Judgment, ECF No. 182, be granted as to the HCSO Defendants.
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
Post Office Box 2317
Florence, South Carolina 29503
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).