Opinion
7:10-cv-02679-JD-JDA
01-26-2022
Anthony D. Richardson, Delinda Ann Turner, Plaintiffs, v. Union Public Safety Department Police, Chief Sam White, Mickey Parker, Investigator Beatty, Captain Bailey, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' motion for summary judgment. [Doc. 316.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiffs filed this action pro se in the Union County Court of Common Pleas on September 15, 2010, concerning actions arising out of seizures relating to the sale of counterfeit CDs and DVDs. [Doc. 1-1.] Defendant Union Public Safety Department Police (“UPSD”) removed the action on October 15, 2010. [Doc. 1.] Plaintiffs filed an Amended Supplemental Complaint on October 21, 2010, naming as additional defendants UPSD officers Chief Sam White (“Chief White”), Investigator Beatty, Mickey Parker (“Investigator Parker”), and Captain Bailey. [Doc. 12.]
UPSD was the only defendant named in the initial complaint in state court. [Doc. 1-1 at 6.]
On December 7, 2021, Defendants filed a motion for summary judgment. [Doc. 316.] The same day, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiffs of the summary judgment/dismissal procedure and the possible consequences if they failed to respond adequately. [Doc. 317.] Plaintiffs filed a response opposing the summary judgment motion on January 3, 2022. [Doc. 319.] The motion is now ripe for review.
BACKGROUND
Viewing the summary judgment record in the light most favorable to Plaintiffs, as is appropriate on consideration of Defendants' summary judgment motion, the undersigned gleans the following facts.
Plaintiffs operated a business known as Hakeem Records, which sold CDs and DVDs that they displayed on a fold-out table. [Doc. 316-2 ¶ 3.] The business was located in a parking lot Plaintiffs rented on South Pickney Street in the City of Union. [Id. ¶ 4.] The lot was in a high-crime area and, accordingly, patrol officers sometimes parked nearby to talk to each other, but mostly to deter crime. [Id.] During the summer of 2010, Plaintiffs contacted Union's mayor, complaining that the presence of the officers in the area was harming their business. [Id. ¶ 5.] The mayor then asked Chief White to speak to Richardson, and Chief White informed Richardson that he would instruct the officers not to park at or near the parking lot while Plaintiffs were operating their business. [Id.; Doc. 316-3 ¶ 4.] Chief White subsequently instructed the officers accordingly, and the officers followed his instructions. [Doc. 316-2 ¶ 5.]
Beginning in approximately the summer of 2010, Chief White began to suspect Plaintiffs were selling counterfeit CDs and DVDs. [Id. ¶ 6.] He conveyed this concern to Captain Bailey, who, in turn, instructed Investigator Parker to send confidential informants to Plaintiffs' business to purchase items to determine whether Plaintiffs were in fact selling counterfeit merchandise. [Id.; Docs. 316-4 ¶¶ 4-5; 316-5 ¶ 4.]
On or about June 23, 2010, Investigator Parker and other officers met with two confidential informants. [Doc. 316-5 ¶ 5.] The informants were given an audio/video recorder and $20.00 and were sent to Hakeem Records, where they purchased five music CDs for $20.00. [Id.] When they returned, the evidence was recovered. [Id.] On or about June 24, 2010, a confidential informant met with Investigator Parker and other officers. [Id. ¶ 6.] The informant was again given $20.00 and sent to Hakeem Records, where the informant purchased five movie DVDs. [Id.] When the informant returned, the evidence was recovered. [Id.] On or about August 18, 2010, Investigator Parker and other officers again met with a confidential informant. [Id. ¶ 7.] The informant was provided an audio/video recorder and U.S. currency, which was used to purchase counterfeit DVD movies from Plaintiffs. [Id.] The informant then returned to the officer, and the evidence was recovered. [Id.]
Each time a confidential informant was sent to purchase items from Plaintiffs' business, the informant and his or her vehicle were searched before and after the purchase. [Doc. 316-5 ¶ 9.] Further, on each occasion, the informants were placed under visual surveillance during the purchases. [Id.] Investigator Parker had used the confidential informants previously and had received reliable information from them. [Id.; see also Doc. 316-2 ¶ 9.]
After the items were purchased, Chief White asked an investigator from the Secretary of State for assistance. [Doc. 316-2 ¶ 8.] That investigator and a private investigator examined the items and informed the UPSD that they were counterfeit. [Id.] Specifically, the CDs were found to be copies of genuine CDs of recording artists, and the DVDs were found to be copies of genuine DVDs of movies, both of which indicated violations of copyright laws. [Id.]
Additional surveillance revealed that two other groups in the area were also selling counterfeit CDs and DVDs in the area. [Id. ¶ 10; Doc. 316-5 ¶ 10.] Chief White sought help from the South Carolina Law Enforcement Division (“SLED”) in addressing these crimes. [Doc. 316-2 ¶ 10.] On or about August 20, 2010, SLED arranged for a meeting among local law enforcement departments to set up a sting operation to seize the counterfeit merchandise that Plaintiffs and the two other groups were selling. [Id. ¶ 11; Docs. 316-3 ¶ 8; 316-4 ¶ 7; 316-5 ¶ 10.] SLED was in charge of the operation and directed the local law enforcement departments regarding which group to pursue and what to seize. [Docs. 316-2 ¶ 11; 316-3 ¶ 8; 316-4 ¶ 7; 316-5 ¶ 10.] Investigator Parker served as liaison between SLED and the UPSD officers who participated in the operation. [Docs. 316-2 ¶ 11; 316-3 ¶ 8; 316-4 ¶ 7; 316-5 ¶ 10.] During the meeting, SLED instructed First Sergeant Troy Wright (“First Sergeant Wright”) and Investigator Beatty to go to Plaintiffs' business and seize all counterfeit merchandise in plain view as well as all items being used in connection with the sale of the counterfeit merchandise. [Docs. 316-2 ¶ 12; 316-3 ¶ 9; 316-4 ¶ 7; 316-5 ¶ 11.] SLED informed First Sergeant Wright and Investigator Beatty that the perpetrators would not be arrested at the business but instead would be allowed to turn themselves in. [Docs. 316-2 ¶ 12; 316-3 ¶ 9; 316-4 ¶ 7; 316-5 ¶ 11.]
Although the affidavits each state that the date of the meeting was August 20, 2011, rather than August 20, 2010, this appears to be a scrivener's error.
First Sergeant Wright and Investigator Beatty arrived at Plaintiff's business on or about August 20, 2010, and observed that Plaintiffs were selling CDs and DVDs that were displayed openly on a fold-out table. [Doc. 316-3 ¶ 10.] They informed Plaintiffs they had come to seize all of the counterfeit merchandise and all items relating to the sale of the merchandise. [Id.] The officers proceeded to seize all of the DVDs and CDs as well as all items connected to the sale of the illegal merchandise. [Id.] These items included the table, a tent, a cooler, a sign, a table, and a chair. [Id.] Investigator Beatty instructed Plaintiffs to contact Investigator Parker the following Monday and turn themselves in. [Id.; Doc. 316-5 ¶ 12.] First Sergeant Wright and Investigator Beatty left Plaintiffs' business immediately after confiscating the counterfeit merchandise. [Doc. 316-3 ¶ 11.]
The same day, other officers went to the two other businesses that were selling counterfeit merchandise, one of which was operated by two African-American males and one of which was operated by one Caucasian male. [Docs. 316-2 ¶ 15; 316-5 ¶ 13.] No. search warrant was issued for the business operated by the Caucasian male because, similar to Plaintiff, he was selling his items in an open-air-type market and his items were in plain view. [Doc. 316-2 ¶ 15.] As the officers did with Plaintiffs, they seized the counterfeit merchandise and all items connected to the sale of the counterfeit merchandise from the other two businesses and allowed the operators of the businesses to turn themselves in. [Id.; Doc. 316-5 ¶ 13.] The operators of the other two businesses turned themselves in shortly thereafter, but Plaintiffs did not. [Docs. 316-2 ¶ 15; 316-5 ¶ 13.]
With Plaintiffs having not turned themselves in, SLED secured warrants for their arrests on or about August 23, 2010. [Docs. 316-5 ¶ 14; 316-6 ¶ 4.] Plaintiffs were served with the arrest warrants and were arrested on September 13, 2010. [Doc. 316-6 ¶ 4.] The arrest warrants charged Plaintiffs with three counts of distribution of illegal recordings. [Id.] At a preliminary hearing held on February 22, 2011, a magistrate judge determined there was probable cause for arrest on these charges and sent the case to the grand jury. [Id. ¶ 5.] On March 3, 2011, the case was presented to the grand jury, which returned indictments against Plaintiffs charging both Plaintiffs with three counts of distribution of illegal recordings and charging Richardson with one count of possession with intent to distribute illegal recordings. [Id. ¶ 6.] On December 5, 2011, Richardson pled guilty to all charges and received a sentence consisting of a fine and one year of probation. [Docs. 127; 316-7 ¶ 6; 316-8 at 2; 316-9 at 2; 316-10 at 2.] The charges against Turner were dismissed when Richardson pled guilty. [Doc. 316-7 ¶ 7.]
On December 16, 2011, Richardson's attorney filed a notice of appeal, but the South Carolina Court of Appeals dismissed the appeal on February 13, 2013, for failure to timely serve opposing counsel with the notice of appeal. See Richardson v. Warden, No. 8:21-cv-00899-JD (D.S.C. Mar. 29, 2021), Docs. 17-1 at 61; 17-4. On March 6, 2013, Richardson filed an application for post-conviction relief (“PCR”) in the Union County Court of Common Pleas. [21-899 Doc. 17-1 at 12-18.] On October 6, 2017, the Honorable Letitia Verdin entered an order denying his request for PCR relief and dismissing the PCR application with prejudice, but she granted him a belated appeal. [Id. at 62-67.] On January 20, 2021, the South Carolina Court of Appeals dismissed Richardson's appeal, and it issued a remittitur on February 10, 2021. [Id. Docs. 17-11; 17-12.]
The dispositional order of the Court of Appeals, at Appellate Case Number 2012-213609, states in full:
Appellant has failed to timely serve opposing counsel with the notice of appeal, as required by Rule 203 of the South Carolina Appellate Court Rules. Accordingly, this matter is dismissed. The remittitur will be sent as provided by Rule 221(b), SCACR.[Doc. 17-4.]
Citations to this case will be in the form of “[21-899 Doc. x.].” It is appropriate for this Court to take judicial notice of a plaintiff's other cases. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Richardson then filed a petition for habeas corpus in this Court on March 26, 2021. [Id. Doc. 1; see Id. Doc. 41 at 1 n.1.] This Court dismissed Richardson's petition on December 10, 2021. [Id. Doc. 45; see Id. Doc. 41.]
As also noted, Plaintiffs filed the present case on September 15, 2010, which was while the underlying criminal action was pending. Reading the Amended Supplemental Complaint liberally, the undersigned construes it to assert claims under 42 U.S.C. § 1983 for unlawful search and seizure in violation of the Fourth Amendment, Fourteenth Amendment due process violations and equal protection violations, and violations of the First, Fifth, Sixth, and Thirteenth Amendments; a claim under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); and state law claims for trespass, defamation, malicious prosecution and false arrest, violations of sections 2 and 10 of Article 1 of the South Carolina Constitution, and violations of the South Carolina Equal Enjoyment and Privileges to Public Accommodations Act. [Doc. 12.] As relief, Plaintiffs request 100 million dollars in damages and declaratory and injunctive relief. [Id. at 2-3.]
This case was stayed off and on for many years as state-court proceedings continued relating to Plaintiffs' criminal charges. Defendants filed their current summary judgment motion following the lifting of the most recent stay.
On June 6, 2011, this case was stayed pending a decision by the state court regarding the then-pending criminal charges. [Doc. 103; see Doc. 94.] On December 29, 2011, the Court was notified by counsel for Defendants that Richardson had pled guilty to all charges on December 5, 2011, and that he received a fine and one year of probation. [Doc. 127.] On January 3, 2012, the Court, taking judicial notice that the charges against Turner had been disposed, lifted the stay. [Doc. 128.] On May 2, 2012, Plaintiffs filed a motion to stay pending appeal, alleging that Richardson had filed an appeal in his state criminal case. [Doc. 144.] The Court granted the motion to stay on September 13, 2012. [Doc. 168; see Doc. 164.] On March 7, 2013, the Court lifted the stay upon learning that the South Carolina Court of Appeals had dismissed Richardson's appeal. [Doc. 176.] On March 13, 2013, Plaintiffs filed another motion to stay the case [Doc. 179], and on April 4, 2013, the Court granted Plaintiffs' motion to stay pending resolution of Richardson's PCR application [Doc. 182]. On October 25, 2021, the Court lifted the stay of this action after learning that the South Carolina Court of Appeals had dismissed Plaintiff's direct appeal regarding his PCR issues and remitted the case to Union County General Sessions Court. [Doc. 307; see Docs. 295; 301; 305.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiffs brought this action pro se, which requires the Court to liberally construe their pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainants' legal arguments for them. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
Plaintiffs' claims are filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .”42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed."
Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of the State itself.'” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying ‘the specific conduct of which the plaintiff complains.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for 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 judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) 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
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Defendants argue, for various reasons, that they are entitled to summary judgment on all of Plaintiffs' claims. The Court will address Defendants' claims seriatim.
Federal Claims
Fourth Amendment Claims
Construed liberally, Plaintiffs' Amended Supplemental Complaint alleges that Defendants violated Plaintiffs' Fourth Amendment rights by coming onto their business premises, seizing their property without a warrant, and arresting and prosecuting them. [Doc. 12.] Defendants argue they are entitled to summary judgment on all such claims. [Doc. 316-1 at 9-21.] The Court agrees.
Claims Alleging an Unreasonable Search of Hakeem Records or an Unreasonable Seizure of Plaintiffs' Property
“The Fourth Amendment protects against unreasonable searches and seizures.” United States v. Castellanos, 716 F.3d 828, 832 (4th Cir. 2013) (internal quotation marks omitted). “A government agent's search is unreasonable when it infringes on an expectation of privacy that society is prepared to consider reasonable.” Id. (internal quotation marks omitted). In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court “held that 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). “The level of suspicion must be a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.'” United States v. Black, 707 F.3d 531, 539 (4th Cir. 2013) (quoting United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)). The officer must be able to articulate something more than an “inchoate and unparticularized suspicion or a ‘hunch.'” Terry, 392 U.S. at 27. Courts must look at the totality of the circumstances and consider the “cumulative information available to the officer.” United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008) (internal quotation marks omitted). And, in determining whether reasonable suspicion exists, courts may credit “the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993).
“As a general rule, warrantless searches or seizures are per se unreasonable. But there are a few specifically established and well-delineated exceptions.” United States v. Williams, 592 F.3d 511, 521 (4th Cir. 2010) (internal quotation marks omitted). As is relevant here, the “plain view” exception to the warrant requirement allows police officers to seize evidence in plain view without a warrant when: “(1) the seizing officer is lawfully present at the place from which the evidence can be plainly viewed; (2) the seizing officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent.” Id. (alterations and internal quotation marks omitted). Importantly, an officer does not need to be able to definitively determine the incriminating character of an object in order for the object's incriminating character to be immediately apparent in this context. Pando v. Blair, No. 5:15-cv-610-Oc-34-PRL, 2017 WL 3835858, at *9-11 (M.D. Fla. Aug. 10, 2017) (collecting cases), Report and Recommendation adopted by 2017 WL 3782813 (M.D. Fla. Aug. 31, 2017). Rather, for an object's incriminating character to be immediately apparent, the officer merely must have probable cause to believe the object is incriminating without conducting any further search. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see also Texas v. Brown, 460 U.S. 730, 741-42 (1983); United States v. Davis, 690 F.3d 226, 237 (4th Cir. 2012).
“The plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.” Illinois v. Andreas, 463 U.S. 765, 771 (1983). And as for that possessory interest, if the owner's possession of an item is illegal, “its seizure is justified by the fact that any ownership or possessory interest in the item is defeated by its illegality.” Williams, 592 F.3d at 521 (emphasis omitted).
Here, Plaintiffs have not forecasted any evidence that Defendants' presence at Hakeem Records was illegal or that they conducted any illegal search. Plaintiffs' business was located in an open parking lot, and the items they were selling were openly displayed on a table. No. evidence indicates that the officers entered any part of Plaintiffs' business or examined anything in any location that Plaintiffs did not intentionally expose to the general public. As such, the officers' presence at Plaintiffs' business and their observation of the items on display, as a matter of law, did not amount to an unreasonable search. See Maryland v. Macon, 472 U.S. 463, 469 (1985) (holding that an “officer's action in entering the bookstore and examining the wares that were intentionally exposed to all who frequent the place of business did not infringe a legitimate expectation of privacy and hence did not constitute a search within the meaning of the Fourth Amendment”).
Nor have Plaintiffs forecasted any evidence to show that the plain view exception does not apply to the warrantless seizure of the items. The affidavits Defendants have submitted establish that, at the time the items were seized, the officers had probable cause to believe that all of the property confiscated from Plaintiffs' business was evidence of the crime of distribution of illegal recordings. The expected incriminating nature of the CDs and DVDs, which “were openly displayed on a fold out table” [Doc. 316-3 ¶ 10], is plain enough, but the tent and other items used in connection to the distribution of illegal recordings were also evidence of the crime because those items show how the merchandise was being offered for sale and how the business was being operated. See Davis, 690 F.3d at 237 (“[A]n item need not itself be contraband before it has an incriminating nature, but instead, an item need only be evidence of a crime.” (internal quotation marks omitted)).
In contrast to Investigator Beatty's statement in his affidavit that Plaintiffs counterfeit DVDs and CDs “were openly displayed on a fold out table” [Doc. 316-3 ¶ 10], Plaintiffs argue that some of the CDs and DVDs were actually in containers under the table and were not in plain view [Doc. 319 at 5-6]. However, Plaintiffs' argument does not, by itself, create a genuine factual dispute, and Plaintiffs have not forecasted any admissible evidence on this point. See Rice v. M-E-C Co., No. 2:17-cv-1274-BHH-MHC, 2021 WL 5134057, at *7 (D.S.C. Aug. 6, 2021) (holding that arguments against summary judgment cannot create a genuine factual dispute in the absence of citations to evidence), Report and Recommendation adopted by 2021 WL 5822645 (D.S.C. Dec. 8, 2021). On this point, the Court notes that in their response opposing Defendants' summary judgment motion, Plaintiffs argue that “sworn, written testimony of Charles Coleman[]” creates a genuine factual dispute. [Doc. 319 at 5.] However, the testimony Plaintiffs reference does not appear to be in the record.
Because Plaintiffs have not forecasted evidence of any unreasonable search or unreasonable seizure of the property, the Court recommends granting summary judgment on any claims alleging unreasonable search or seizure of their property.
Claims Based on Seizure and Prosecution of Plaintiffs
Section 1983 actions premised on malicious prosecution or false arrest are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”); Curtis v. Devlin, No. 1:04-cv-409, 2005 WL 940571, at *6 (E.D. Va. Apr. 19, 2005) (explaining that § 1983 actions for false arrest and malicious prosecution should be analyzed under the Fourth Amendment). The same is true of such claims complaining of due process or Sixth Amendment violations. Brooks v. City of Winston-Salem, N.C. , 85 F.3d 178, 184 (4th Cir. 1996) (“[T]he Fourth Amendment provides all of the pretrial process that is constitutionally due to a criminal defendant in order to detain him prior to trial.”).
To prove a claim for false arrest, a plaintiff must demonstrate that he was arrested without probable cause. Sowers v. City of Charlotte, 659 Fed.Appx. 738, 740 (4th Cir. 2016). And “a § 1983 claim for damages due to false imprisonment is akin to a malicious prosecution claim.” McCormick v. Wright, No. 2:10-cv-00033-RBH, 2010 WL 565303, at *3 (D.S.C. Feb. 17, 2010); see also Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (“What is conventionally referred to as a ‘§ 1983 malicious prosecution' action is nothing more than a § 1983 claim arising from a Fourth Amendment violation.”). “To [prove] such a claim, a plaintiff must [show] 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.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012). Accordingly, to prevail on any of their § 1983 claims regarding their seizure or prosecution, Plaintiffs must show that they were arrested without probable cause.
Under § 1983, “a public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant.” Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998). Moreover, “an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (internal quotation marks omitted); see also Provet v. South Carolina, No. 6:07-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (finding that § 1983 claims of false arrest and malicious prosecution were precluded because of the issuance of an indictment).
Here, the true-billed indictments that the grand jury returned conclusively establish that the officers had probable cause to arrest Plaintiffs. See Durham, 690 F.3d at 189. Even without the indictments, however, the officers' knowledge that on three separate occasions confidential informants had purchased items from Plaintiffs' business that were determined by an independent investigator to be counterfeit was sufficient to establish probable cause for Plaintiffs' arrest. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“Whether probable cause [to believe a criminal offense has been or is being committed] exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”).
Accordingly, the Court recommends that Defendants' summary judgment motion be granted as to Plaintiffs' claims challenging the seizure of their persons or their criminal prosecution.
Fourteenth Amendment Claims
Claims Alleging Violation of Due Process Rights from Seizing Plaintiffs' Property without First Providing a Pre-deprivation Remedy
Defendants next argue that they are entitled to summary judgment on Plaintiffs' claim that Defendants violated their procedural due process rights by removing their property without first providing them with a pre-deprivation remedy. [Doc. 316-1 at 30-33.] The Court agrees.
To the extent Plaintiffs claim that their substantive due process rights were violated by the seizure, Defendants are entitled to summary judgment. To prove a claim for violation of substantive due process rights, Plaintiffs must show that (1) that they have a property interest in the property at issue; that Defendants deprived them of that interest; and that Defendants' “action falls so far beyond the outer limits of legitimate governmental authority that no process could cure the deficiency.” Sunrise Corp. v. City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir. 2005). Plaintiffs have forecasted no evidence that the third element is satisfied here. Plaintiffs' allegations do not state a claim under the Fifth Amendment and should be dismissed to the extent that the allege a violation of the Fifth Amendment's due process protections. See Massey v. Ojanit, 759 F.3d 343, 354 n.5 (4th Cir. 2014) (“[A]lthough Count I refers to both the Fifth and Fourteenth Amendments, Massey's relevant due process protections are found in the Fourteenth, rather than the Fifth, Amendment.”); United States v. Hornsby, 666 F.3d 296, 310 (4th Cir. 2012) (“[T]he Fourteenth Amendment's Due Process Clause is a limitation on state conduct, ” while the “due process protections against the federal government are found in the Fifth Amendment.”).
For a procedural due process claim under § 1983, the Supreme Court has found the existence of state remedies relevant because the Constitutional violation occurs when the State fails to provide due process for the deprivation, not when the deprivation occurs. Zinermon v. Burch, 494 U.S. 113, 125-26 (1990). Procedural due process is a guarantee of fair procedures, i.e. notice and an opportunity to be heard. See id at 125; Goss v. Lopez, 419 U.S. 565, 579 (1975). As such, the Constitution's due process clause is not violated by the intentional unauthorized taking of a person's property by a state or city employee if a meaningful postdeprivation remedy for the loss is available. See Mora v. City of Gaithersburg, MD, 519 F.3d 216, 230-31 (4th Cir. 2008) (concerning the intentional taking of guns and ammunition from the plaintiff and noting that a due process violation occurs not when the property is taken but when a state fails to provide due process); Bogart v. Chapell, 396 F.3d 548, 561-63 (4th Cir. 2005) (finding that intentional destruction of the plaintiff's animals did not violate the due process clause because South Carolina afforded a meaningful postdeprivation remedy for the loss of animals).
In the instant matter, Plaintiffs have remedies available under South Carolina law to seek damages or the return of their property. See Mora, 519 F.3d at 231 (holding that the state courts were open to the plaintiff for claims of conversion or trespass to chattels and there was no reason to think that the state process was constitutionally inadequate). In particular, the South Carolina Tort Claims Act, SC Code §§ 15-78-10, et seq., provides a remedy for a loss of property that is proximately caused by an employee of the state, a state agency, or a political subdivision of the state when the loss occurred by a person acting in the scope of his or her employment. See Richardson v. Duncan, No. 4:16-835-RBH-TER, 2016 WL 11410304, at *3 (D.S.C. Aug. 25, 2016), Report and Recommendation adopted by 2016 WL 6134241 (D.S.C. Oct. 21, 2016). As such, the Court finds that Plaintiffs have failed to allege a plausible constitutional claim for deprivation of personal property. Accordingly, Defendants' motion should be granted with respect to Plaintiffs' due process claim.
Moreover, all seized property except the counterfeit CDs and DVDs has been returned [Doc. 316-7 ¶ 8] and, as stated, Plaintiffs retained no possessory interest in those because the possession was illegal.
Equal Protection Claim
In their Amended Supplemental Complaint, Plaintiffs appear to allege that they were subjected to discriminatory police service and denied equal protection of the law when they were treated less favorably, based on their African-American race, than the other businesses that were raided on the same day as theirs. [Doc. 12 at 2.]
“The fourteenth amendment equal protection clause embraces a right to be free from racially discriminatory enforcement of a state's criminal laws.” Butler v. Cooper, 554 F.2d 645, 646 (4th Cir. 1977). “To succeed on an equal protection claim, a 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).
Defendants argue that Plaintiffs have not forecasted any evidence that they were subjected to different treatment. The Court agrees.
Defendants have forecasted evidence that two other businesses were also raided the day that Plaintiffs' items were confiscated, one business operated by two African-American males, and the other operated by a Caucasian male. [Docs. 316-2 ¶ 15; 316-5 ¶ 13.] Plaintiffs appear to allege that search warrants were issued for other businesses that were raided on the same day as theirs but that the officers did not obtain a warrant prior to raiding Plaintiffs' business. [Doc. 12 at 2.] However, Plaintiffs have offered no evidence supporting that allegation. No. search warrant was issued for the business owned by the Caucasian male because, like Plaintiffs, he was selling his items in an open-air-type market and his merchandise was in plain view. [Doc. 316-2 ¶ 15.] To the extent that their claim is based on the officers' parking at or near Plaintiffs' business during business hours, they have forecasted no evidence that the officers' presence in that location had anything to do with Plaintiffs or their race or that it was not motivated by genuine law enforcement motives. Indeed, Defendants have forecasted evidence that the officers began parking in the area long before Plaintiffs began renting the parking lot for their business. [Doc. 316-2 ¶ 4.] Accordingly, given the lack of forecasted evidence that Plaintiffs received any different treatment, the Court recommends granting summary judgment to Defendants on Plaintiffs' claim that they were treated differently based on race, and that their equal protection rights were violated.
Monell Claim
In their Amended Supplemental Complaint, Plaintiffs assert that the law “plainly impose[s] liability on a government that under color of some official policy, cause[s] an employee to violate another['s] constitutional rights or [causes a] deprivation of any rights or privileges.” [Doc. 12 at 2.] As explained, Plaintiffs have not forecasted evidence that could establish a constitutional violation by any of the individual Defendants here. Accordingly, Plaintiffs' Monell claim must fail as well. See, e.g., Ryu v. Whitten, 684 Fed.Appx. 308, 311 (4th Cir. 2017) (“[B]ecause there was no Fourth Amendment violation, both Ryu's Fourth Amendment claim against Whitten in his individual capacity and his Monell claim against Warren County fail”). Accordingly, the Court recommends that Defendants' summary judgment motion be granted to the extent Plaintiffs assert a Monell claim against the UPSD.
In their Amended Supplemental Complaint, Plaintiffs also make the conclusory allegation that their First, Sixth, and Thirteenth Amendment rights were violated. [Doc. 12 at 2-3.] Plaintiffs have failed to make factual allegations that, even if true, would establish such violations. Accordingly, Defendants are entitled to summary judgment as to these claims.
State Claims
Supplemental Jurisdiction
Plaintiffs' state-law claims can be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state-law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Further, the Supreme Court has warned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. . . . [I]f the federal claims are dismissed before trial . . . the state law claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
A civil action for Plaintiffs' state-law claims could be cognizable in this Court under the diversity statute, if that statute's requirements are satisfied. However, this Court does not have diversity jurisdiction in this case because the Complaint does not allege the required complete diversity of citizenship of the parties. [See Doc. 12]; see also 28 U.S.C. § 1332. Further, as stated, Defendants removed the action to this Court based solely on federal question jurisdiction. [Doc. 1 at 1.]
Applying these factors, the Court concludes that the factors counsel in favor of the Court retaining jurisdiction over Plaintiffs' state-law claims. This case has been pending since September 2010 and has been pending in this Court since October 2010. Discovery has concluded. Remand to state court would cause needless delay as the state court took the steps necessary to acquaint itself with issues with which this Court is already familiar. The Court concludes that these factors outweigh the fact that Plaintiffs filed this case in state court. See Battle v. S.C. Dep't of Corr., No. 9:19-cv-1739-TMC, 2021 WL 4167509, at *13 (D.S.C. Sept. 14, 2021); Ray v. S.C. Dep't of Corr., No. 9:19-cv-147-TMC, 2021 WL 1540928, at *9 (D.S.C. Apr. 20, 2021).
Claims of False Arrest and Malicious Prosecution
Under South Carolina law, to prevail on a claim for false arrest or false imprisonment, a plaintiff must prove both that he was deprived of his liberty and that the deprivation was done without lawful justification. Jones v. City of Columbia, 389 S.E.2d 662, 663 (S.C. 1990); see also Carter v. Bryant, 838 S.E.2d 523, 527 (S.C. Ct. App. 2020) (“False arrest in South Carolina is also known as false imprisonment.”). Stated differently, a plaintiff must show that “(1) the defendant restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was unlawful.” Law v. S.C. Dep't of Corrs., 629 S.E.2d 642, 651 (S.C. 2006). To prevail on a malicious prosecution claim, a plaintiff must prove “(1) the institution or continuation of original judicial proceedings . . .; (2) by, or at the instance of, the defendant; (3) termination of such proceeding in plaintiff's favor; (4) malice in instituting such proceedings; (5) [lack] of probable cause[;] and (6) resulting injury or damage. Parrott v. Plowden Motor Co., 143 S.E.2d 607, 608 (S.C. 1965). Because, for the reasons already explained, probable cause supported Plaintiffs' arrest, the Court recommends that Defendants' summary judgment motion be granted as to Plaintiffs' state law claims for false arrest and malicious prosecution.
Defamation Claim
Construed liberally, the Amended Supplemental Compliant asserts a defamation claim based on a theory that Plaintiffs were damaged “because someone on the police posted up on the internet [that Plaintiffs] were arrested on 8/20/2010, but instead arrested on 09/13/2010.” [Doc. 12 at 2.] The elements of a cause of action for defamation are “(1) a false and defamatory statement was made; (2) the unprivileged statement was published to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of harm or the publication of the statement caused special harm.” Fleming v. Rose, 567 S.E.2d 857, 860 (S.C. 2002). Here, Plaintiffs have not alleged that any named Defendant made any false and defamatory statement about Plaintiffs. Accordingly, the Court recommends that Defendants' summary judgment motion be granted to Plaintiff's defamation claim.
Equal Enjoyment and Privileges to Public Accommodations Act Claim
Defendants argue that they are entitled to summary judgment on Plaintiffs' claim for violation of the South Carolina Equal Enjoyment and Privileges to Public Accommodations Act (“the Act”), see S.C. Code § 45-9-10 et seq. [Doc. 316-1 at 24-25.] The Court agrees.
S.C. Code § 45-9-10(A) provides: “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in Article 1 of this chapter, without discrimination or segregation on the ground of race, color, religion, or national origin.” South Carolina Code § 45-9-10(B) categorizes which establishments that serve the public constitute a place of public accommodation within the meaning of the Act and includes “any retail or wholesale establishment” as such an establishment.
Plaintiffs allege they were deprived of their right to equal enjoyment of a public accommodation by the police either confiscating their property or parking near the parking lot where Plaintiffs operated their business, or both. Plaintiffs appear to misunderstand the purpose of the Act, which is to prohibit establishments that offer public accommodations from withholding or denying any person of any right or privilege to the goods, services, privileges, facilities, advantages, and accommodations that the place of public accommodation offers. See, e.g., SC Code § 45-9-30. Even if Plaintiffs' understanding of the Act were correct, however, Plaintiffs have not forecasted any evidence that any action taken in this case had anything to do with their race, as the Court has explained. Accordingly, the Court recommends that Defendants' summary judgment motion be granted as to Plaintiffs' claim under the Act.
Trespass Claim
Defendants also argue that they are entitled to summary judgment to the extent Plaintiffs assert a trespass claim. [Doc. 316-1 at 25-26.] The Court agrees.
“[A] trespass is any interference with one's right to the exclusive, peaceable possession of his property.” Ravan v. Greenville Cty., 434 S.E.2d 296, 306 (S.C. Ct. App. 1993). “The historical requirements for recovery under the common law action of trespass include an invasion (a) which interfered with the right of exclusive possession of the land, and (b) which was a direct result of some act committed by the defendant.” Graham v. town of Latta, S.C., 789 S.E.2d 71, 86 (S.C. Ct. App. 2016) (internal quotation marks omitted).
Here, Plaintiffs have forecasted no evidence that Defendants' entry onto Plaintiffs' business property interfered with Plaintiffs' right of possession. Defendants were authorized to enter the business property because it was open to the public and because they had probable cause to believe Plaintiffs had committed crimes, and were continuing to do so. Accordingly, the Court recommends granting Defendants' summary judgment motion as to Plaintiffs' trespass claim.
The Court also notes that to the extent that Plaintiffs allege a claim under Article I, Section 2 of the South Carolina Constitution, they have failed to allege the basis of such a claim. To the extent Plaintiffs allege an unreasonable search or seizure or invasion of privacy under Article I, Section 10, Plaintiffs have not forecasted any evidence to support it, and they specifically have not indicated how any privacy rights of theirs were implicated in this case. Accordingly, the Court recommends granting summary judgment on these claims as well.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' summary judgment motion [Doc. 316] be GRANTED.
Because the Court recommends granting Defendants' summary judgment motion for the reasons discussed, the Court declines to address Defendants' alternative arguments.
IT IS SO RECOMMENDED.