Opinion
C/A No.: 1:16-1137-HMH-SVH
03-03-2017
Kelvin Sharod Addison, Plaintiff, v. Investigator Danny Catoe and the South Carolina Department of Corrections, Defendants.
REPORT AND RECOMMENDATION
Kelvin Sharod Addison ("Plaintiff"), proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights during his incarceration at Kershaw Correctional Institution ("KCI") in the custody of the South Carolina Department of Corrections ("SCDC"). Plaintiff sues SCDC and Danny Catoe ("Catoe") (collectively "Defendants"), asserting constitutional and state law claims.
This matter comes before the court on Defendants' motion for summary judgment. [ECF No. 25]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal and summary judgment procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 26]. The motion having been fully briefed [ECF Nos. 28, 29, 33], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the record in this case, the undersigned recommends the district judge grant Defendants' motion for summary judgment. I. Factual and Procedural Background
On February 2, 2015, Plaintiff filed a lawsuit against Catoe based on the same facts as this case. See Addison v. Catoe, C/A No. 1:15-572-SB ("Addison I"). Specifically, Plaintiff alleged in Addison I that on August 23, 2013, Catoe was advised that Plaintiff had thrown urine on Cpl. Moore ("Moore"). Addison I, ECF No. 1 at 3. Plaintiff alleged that Catoe claimed to have interviewed Moore and Sgt. Lippe ("Lippe") on August 28, 2013, and that Catoe transcribed the interviews on August 29, 2013. Id. According to Plaintiff, the transcripts say that Moore and Lippe knew the liquid Plaintiff threw was urine by the sight and the smell. Id. Catoe did not personally interview Plaintiff, but he was interviewed by another investigator. Id. On September 4, 2013, Catoe obtained an arrest warrant for Plaintiff from the Lancaster County magistrate for a charge of throwing bodily fluids on a correctional employee. Id.
A district court may take judicial notice of materials in the court's own files from prior proceedings. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that the most frequent use of judicial notice is in noticing the content of court records); Fletcher v. Bryan, 175 F.2d 716, 717 (4th Cir. 1949). The court also notes that Plaintiff has previously filed two additional lawsuits against other defendants related to the same incident. See C/A No. 1:15-571-JMC and C/A No. 1:15-593-SB.
Plaintiff alleged that Moore testified at his disciplinary hearing on September 10, 2013, and stated "that he wasn't lookin[g] to smell urine, [] he was very upset." Id. Plaintiff claimed that Lippe also testified at his disciplinary hearing and stated that she was five feet behind Moore and "by the time she got anywhere close to smell anything all she could smell was mace." Id. at 4. Plaintiff claimed Catoe received a copy of Lippe's incident report dated August 22, 2013, that stated Lippe noticed Plaintiff throwing a liquid substance onto Moore from a cup. Id. Addison I was summarily dismissed because Plaintiff had not alleged that Catoe had acted deliberately or with reckless disregard for the truth, and allegations of negligence are insufficient to provide a basis for a constitutional violation. Id. at ECF Nos. 10, 15.
In this lawsuit, Plaintiff makes many of the same allegations as in Addison I, but alleges Catoe knowingly made false statements. [ECF No. 1-1 at 2]. He alleges that Catoe acted with malice by writing false reports and by allowing another investigator to interview Plaintiff. Id. He alleges that Catoe was the prosecuting officer and unlawfully seized Plaintiff by arresting him. Id. II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Defendants also contend that Plaintiff failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), specifically 42 U.S.C. § 1997e(a). However, Defendants provide no authority that exhaustion is required for claims concerning criminal procedure, much of which occurred outside of the prison. The undersigned expresses no opinion about whether exhaustion is required, but finds that Defendants have failed to meet their burden of proving the affirmative defense. See Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 683 (4th Cir. 2005) (holding inmate's failure to exhaust administrative remedies is an affirmative defense to be both pled and proven by the defendant).
1. Fourth Amendment Claims
To establish a § 1983 claim based on a Fourth Amendment violation for false arrest/imprisonment or malicious prosecution, a plaintiff must show that a seizure was effected without probable cause and that the legal process terminated in his favor. See Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001); Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996). To demonstrate that an officer seized an individual pursuant to an arrest warrant without probable cause, a plaintiff must show that the officer "deliberately or with a reckless disregard for the truth made material false statements in his affidavit or omitted from that affidavit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading." Miller v. Prince George's Cnty., 475 F.3d 621, 627 (4th Cir. 2007) (internal citations and quotation marks omitted). However, allegations of negligence or honest mistake are insufficient to provide a basis for a constitutional violation. Id. at 627-28.
Plaintiff's complaint provides insufficient facts to challenge the validity of the warrant Catoe obtained against him for allegedly throwing urine on Moore. The records reveal that by September 4, 2013, the date that Catoe obtained the warrant [ECF No. 25-5], Moore and Lippe had both stated that they were sure Plaintiff had thrown urine on Moore [ECF No. 25-4 at 8-9]. Although Plaintiff denied the substance he threw was urine, he admitted to Investigator Brockenberry that he had thrown a substance on Moore that he claimed was water and unknown chemicals. [ECF No. 25-4 at 10]. Plaintiff's denial that he had committed the crime does not negate the existence of probable cause. Additionally, although Lippe testified at the September 10, 2013 disciplinary hearing that she could not smell the substance, Moore testified that he could see that it was urine by its color. [ECF No. 25-5 at 10]. Plaintiff has not offered any facts showing that Catoe intentionally lied or recklessly made material omissions to obtain the arrest warrant, nor does he offer any facts to show that Catoe believed he lacked probable cause to charge Plaintiff. The reported inconsistencies in Moore's and Lippe's accounts of the incident, without more, fail to show that Catoe acted with reckless disregard for the truth. Because Plaintiff has not stated a claim of constitutional magnitude, the undersigned recommends Defendants be granted summary judgment on Plaintiff's Fourth Amendment claims.
2. Defamation
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). However, "[t]he protection of privilege extends generally to remarks made in the prosecution of an inquiry regarding a crime which has been committed; and for the purpose of detecting and bringing the criminal to punishment." Bell v. Bank of Abbeville, 38 S.E.2d 641, 643 (S.C. 1946). "Where the occasion gives rise to a qualified privilege, there is a prima facie presumption to rebut the inference of malice, and the burden is on the plaintiff to show actual malice or that the scope of the privilege has been exceeded." Swinton Creek Nursery v. Edisto Farm Credit, ACA, 514 S.E.2d 126, 134 (S.C. 1999). Here, Defendant's statements were made in the prosecution of prison disciplinary violations and were related to Plaintiff's criminal charges, on which he was acquitted.
To prove actual malice, the plaintiff must show that "the defendant was activated by ill will in what he did, with the design to causelessly and wantonly injure the plaintiff;" or that the statements were published with such recklessness as to show a conscious disregard for plaintiff's rights. Holtzscheiter, 506 S.E.2d at 502 n. 3. The communications by Catoe in this matter were subject to a qualified privilege, and Plaintiff has not offered sufficient evidence to establish the requisite showing of malice to overcome the privilege. Therefore, the undersigned recommends Defendants be granted summary judgment on Plaintiff's defamation claim.
3. Negligence
Plaintiff alleges Catoe was negligent in his investigatory duties because he allowed another investigator to interview Plaintiff. [ECF No. 1-1 at 2]. Plaintiff has not provided any authority for the proposition that an officer breaches a duty by relying on another investigator. Probable cause can rest on the collective knowledge of the officers involved in an operation rather than solely on that of the officer who makes the arrest. United States v. Pitt, 382 F.2d 322, 324 (4th Cir.1967). Under the collective knowledge doctrine, law enforcement officers cooperating in an investigation are entitled to rely upon each other's knowledge of facts when forming the conclusion that a suspect has committed or is committing a crime. See United States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996). Because Plaintiff has not shown that Catoe breach a duty owed to him, the undersigned recommends Defendants be granted summary judgment on Plaintiff's negligence claim. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion for summary judgment. [ECF No. 25].
If the undersigned accepts this recommendation, Defendants' motion to strike Plaintiff's sur reply [ECF No. 34] will be rendered moot.
IT IS SO RECOMMENDED. March 3, 2017
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).