Opinion
C/A 3:21-3710-MGL-PJG
09-21-2023
Ralph Burns, Plaintiff, v. Sheriff Leon Lott; Melissa S. Perry, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Ralph Burns filed this action pursuant to 42 U.SC. § 1983 and the South Carolina Tort Claims Act, SC Code Ann. §§ 15-78-10 et seq., in the Richland County Court of Common Pleas. The defendants removed this action on November 12, 2021. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motion for summary judgment. (ECF No. 32.) Burns filed a response in opposition to the motion (ECF No. 38), and the defendants filed a reply (ECF No. 43). Having reviewed the record presented and the applicable law, the court concludes that the defendants' motion should be granted as to the § 1983 claim and the remaining claims should be remanded to the Richland County Court of Common Pleas.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. This case arises out of the arrest, prosecution, and acquittal of Ralph Burns on criminal charges stemming from allegations of sexual misconduct by Burns's minor granddaughter. Defendant Melissa S. Perry of the Richland County Sheriff's Department investigated the allegations and ultimately obtained warrants for Burns's arrest.
On March 3, 2018, a Richland County Sheriff's Deputy responded to a complaint by the minor's father, who reported to the deputy that the minor had been sexually abused by the minor's grandfather-Burns. At the time of the report, the minor was fifteen years old. The minor reported to the deputy that the most recent incident of abuse occurred one year prior, and the first incident occurred about eight years prior. The minor described Burns's sexual misconduct to the deputy. The minor's father reported that the abuse occurred in both his Richland County residence and Burns's Florence County residence. The minor's father reported that he made a similar report to the City of Florence Police Department. (Incident Report, ECF No. 32-3 at 1.)
On April 2, 2018, Defendant Perry was assigned to work on the case. Perry was a senior investigator and part of the Richland County Sheriff's Department's Special Victim's Unit, which investigated cases of child abuse and sexual assault. Perry began her investigation by contacting the minor's mother and referring them to the Metropolitan Children's Advocacy Center (“MetCAC”) for a forensic interview. In the interview, the minor stated that she was repeatedly sexually abused by Burns, her grandfather, between the ages of seven and fourteen and gave specific, graphic details about the abuse. The minor stated that the abuse occurred in precise locations in the areas of Florence and Richland Counties. The interview was recorded and the MetCAC interviewer made interview notes. Perry reviewed the video and interview notes, the deputy's incident report of the original complaint, and medical reports. Perry also presented follow-up questions to the minor's parents. Perry never spoke to the minor.
The forensic interview video and notes were also provided to Jimmy Cantey, an investigator with the City of Florence Police Department. After discussing the investigation with a local solicitor, Cantey concluded that criminal charges could not be pursued against Burns at that time because the minor was not able to supply a specific age or years that the abuse occurred within the City of Florence and Burns had not confessed. (Pl.'s Resp. Ex. B, ECF No. 38-2.)
Perry, however, sought warrants for Burns's arrest based on her investigation of Burns in Richland County. Perry sought arrest warrants on the charges of first-degree criminal sexual conduct with a minor under eleven years of age, second-degree criminal sexual conduct with a minor over eleven and under fourteen years of age, and second-degree sexual exploitation of a minor. Perry included the following facts in the warrant affidavits supporting probable cause:
That from October 2012 thru [sic] October 2015 while at [a street address] in the Blythewood Magisterial District of Richland County it is believed that one Ralph Burns did commit the crime of criminal sexual conduct with [sic] minor - first degree in that the defendant, who is the victim's grandfather, did penetrate the victim's vagina with his penis on two separate occasions. The victim was under the age of [eleven] during both incidents. The victim disclosed the incidents during an interview at the MetCAC.
That from October 2015 thru [sic] October 2017 while at [a street address] in the Dentsville Magisterial District of Richland County it is believed that one Ralph Burns did commit the crime of criminal sexual conduct with [sic] minor - second degree in that the defendant, who is the victim's grandfather, did penetrate the victim's vagina with his penis on multiple separate occasions. The victim was under the age of 14 during all of the incidents. The victim disclosed the incidents during an interview at the MetCAC.
That from October 2015 thru [sic] October 2017 while at [a street address] in the Dentsville Magisterial District of Richland County it is believed that one Ralph Burns did commit the crime of sexual exploitation of [sic] minor - second degree in that the defendant, who is the victim's grandfather, solicited nude photographs of the victim's vagina while speaking to the victim over the phone. She refused to send the photos. The victim disclosed the incident during an interview at the MetCAC.(Warrant Affidavits, ECF No. 32-5 at 1-3.) Based on Perry's affidavits, Richland County Magistrate Barbara Jo Wofford Kanwat issued warrants for Burns's arrest for the listed charges on April 9, 2018. Perry and Florence Police arrested Burns in his home the next day. Burns gave a voluntary statement denying the minor's allegations. Burns was transported to Richland County and booked in the local detention center where he remained until his trial.
On October 9, 2018, a Fifth Circuit Solicitor sought indictments for Burns's charges from a Richland County Grand Jury. The grand jury true billed all three indictments. Burns rejected all offers to plead guilty and sought a trial to prove his innocence. Nearly a year later, Burns was tried on the charges from October 14, 2019 to October 16, 2019. The petit jury returned not guilty verdicts on all three charges and Burns was released from custody.
Burns filed this lawsuit in the Richland County Court of Common Pleas on October 6, 2021. Burns raises a claim against Perry pursuant to 42 U.S.C. § 1983 for a deprivation of his Fourth Amendment rights, and state law causes of action against Defendant Leon Lott, the Richland County Sheriff, for false arrest or imprisonment, gross negligence, malicious prosecution, and defamation. The defendants removed this action pursuant to the court's federal question jurisdiction, 28 U.S.C. § 1331.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “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). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving 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.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. 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., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. The Defendants' Motion
1. Claim Pursuant to 42 U.S.C. § 1983
The defendants argue that Burns cannot show that Perry violated Burns's Fourth Amendment rights by arresting him. Specifically, the defendants argue that Burns cannot show that Perry lacked probable cause to arrest him. The court agrees.
Burns brings this action pursuant to 42 U.S.C. § 1983, which “ ‘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)). To state a claim under § 1983, a plaintiff must allege: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Here, Burns expressly claims that Perry deprived him of his Fourth Amendment rights when she arrested him unreasonably. (Compl. ¶¶ 75-76, ECF No. 1-1 at 13-14.) However, despite the extensive briefing by the parties on this issue, the parties fail to identify the precise cause of action that Burns raises under the Fourth Amendment. The defendants analyze Burns's § 1983 claim as one for false arrest, but acknowledge the claim may be properly understood as one for malicious prosecution. (Defs.'s Mem. Supp. Summ. J., ECF No. 32-1 at 5, n.2.) Burns, for his part, appears to equivocate on the matter, noting that he merely needs to show a lack of probable cause to demonstrate success on the merits of his claim. (Pl.'s Resp., ECF No. 38 at 5.)
The defendants argue that Burns's malicious prosecution claim would be untimely, arguing that the limitations period began to run when he was arrested. The court disagrees. In McDonough v. Smith, 139 S.Ct. 2149, 2156-58 (2019), the Supreme Court declared that the statute of limitations begins to run on a fabrication of evidence claim when the criminal proceedings against the plaintiff terminate in his favor, analogizing the claim to a claim of malicious prosecution. See also Owens v. Baltimore City State's Att'ys Off., 767 F.3d 379, 390 (4th Cir. 2014) (holding the statute of limitations began to run on the plaintiff's § 1983 malicious prosecution claim when the proceedings were terminated in the plaintiff's favor). Here, Burns was acquitted of the charges against him on October 16, 2019, and Burns filed this lawsuit on October 6, 2021, less than two years later. Because the statute of limitations for a § 1983 claim in South Carolina is generally three years, Burns' malicious prosecution claims appear timely. Brannon v. Blanton, C/A No. 9:15-2434-CMC, 2016 WL 4232886, at *2 (D.S.C. Aug. 11, 2016) (“[T]he statute of limitations for § 1983 claims arising in South Carolina is three years, regardless of the underlying allegations of the § 1983 claim.”); see also S.C. Code Ann. § 15-3-530(5).
The court concludes that Burn's § 1983 claim for a deprivation of his Fourth Amendment rights is properly analyzed as a malicious prosecution claim because Perry arrested him pursuant to a warrant issued by a state magistrate. “Allegations that an arrest made pursuant to a warrant was not supported by probable cause, or claims seeking damages for the period after legal process issued-e.g., post-indictment or arraignment-are considered a § 1983 malicious prosecution claim.” Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017) (quoting Brooks v. City of Winston-Salem, 85 F.3d 178, 182 (4th Cir. 1996)) (internal quotation marks and alteration omitted); see also Thompson v. Clark, 142 S.Ct. 1332, 1337 (2022). “A malicious prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)) (internal quotation marks omitted). To state a constitutional claim for malicious prosecution, “a plaintiff must allege that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor.” Id. (citing Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)).
The difference between a false arrest claim and a malicious prosecution claim is significant, as each requires different elements to determine whether the defendant complied with the Fourth Amendment. To establish a § 1983 claim for false arrest in violation of the Fourth Amendment, a plaintiff must show the seizure of his person was unreasonablei.e., he must show that he was arrested without probable cause. See Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001). In the context of a warrantless arrest, a law enforcement officer has probable cause to arrest where the totality of the facts and circumstances known to the officer at the time of the arrest would cause a reasonable officer to believe that a criminal offense has been committed. Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004); Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017). For a warrantless arrest, the officer's subjective state of mind is irrelevant, and the arrest will comply with the Fourth Amendment if objective, probable cause existed to arrest the suspect for any criminal offense. Devenpeck, 543 at 153 (“[The officer's] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.”); see also Pegg v. Herrnberger, 845 F.3d 112, 119 (4th Cir. 2017).
Generally, an officer may give deference to a magistrate's determination of probable cause. See United States v. Leon, 468 U.S. 897, 914 (1984); Smith v. Munday, 848 F.3d 248, 255 (4th Cir. 2017). Therefore, to establish a malicious prosecution claim based on an arrest pursuant to a warrant, a plaintiff must show that the officer deliberately or with reckless disregard for the truth made material false statements in the warrant application, Humbert, 866 F.3d at 556 (quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)), or that the officer intentionally or with reckless disregard made the application misleading by omitting material facts, id. (quoting United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)). A reckless disregard can be shown by evidence that an officer acted with a high degree of awareness of a statement's probable falsity such that when viewing all the evidence, the officer must have entertained serious doubts as to the truth of her statements or had obvious reasons to doubt the accuracy of the information she reported. Miller v. Prince George's Cnty., Md., 475 F.3d 621, 627 (4th Cir. 2007). However, an officer's mere negligence or innocent mistake in making a false statement in a warrant affidavit will not provide a basis for a constitutional violation. Id. at 627-28 (quoting Franks, 438 U.S. at 171). A fact is material if it is necessary to the magistrate's finding of probable cause. Humbert, 866 F.3d at 556; Miller, 475 F.3d at 628.
Here, the court concludes that Burns fails to put forth evidence that Perry deliberately or recklessly made a materially false statement in the warrant application or omitted material facts. Burns points to the following omissions to show that the warrants issued lacked probable cause: (1) the warrant affidavits for criminal sexual conduct do not give specific dates and locations, instead indicating that the conduct occurred within a certain number of years; (2) the warrant affidavits fail to mention that the City of Florence Police determined that the minor's allegations against Burns were not prosecutable.
First, the affidavits did include specific addresses at which the incidents occurred. (Warrant Affidavits, ECF No. 32-5 at 1-3.) As to the dates, Perry charged Burns with criminal offenses that require the victim be a certain age, but they do not require that the acts be committed on a particular date. See State v. Ham, 191 S.E.2d 13, 17 (S.C. 1972) (“[T]he true test of the sufficiency of an indictment is not whether it could have been more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.”). Thus, any omission of a specific date from the affidavit was immaterial. But more importantly, Burns fails to point to any evidence that Perry was aware of more specific dates. Notably, the forensic interview notes do not include any specific dates, other than a single birthday without noting the year, and Burn points to no evidence that would establish that Perry was aware of the specific dates on which the purported abuse occurred. Therefore, no reasonable jury could find that Perry deliberately or recklessly omitted specific dates from the warrant affidavits. See Humbert, 866 F.3d at 556.
See S.C. Code § 16-3-655 (criminal sexual conduct with a minor offenses); § 16-15-405 (sexual exploitation of a minor).
Second, the Florence Police Department's decision not to prosecute Burns is immaterial to Perry's probable cause determination. The Florence Police's investigation concerned the minor's allegations about Burns's conduct in and around the City of Florence. Therefore, the Florence investigation had no bearing on Perry's investigation of Burns's conduct in Richland County. Notably, the Florence Police and local solicitor determined that Burns could not be charged in their jurisdiction in part because the minor was not able to supply a specific age or years that the abuse occurred within the City of Florence. (Pl.'s Resp. Ex. B, ECF No. 38-2 at 1.) Thus, contrary to Burns's argument, the Florence Police were not investigating “the same factual allegations with the same evidence as Defendant Perry,” nor was Perry relying upon “the same evidence” to support her arrest warrants. (Pl.'s Resp., ECF No. 38 at 7.) Consequently, Burns fails to put forth evidence that Perry omitted material information from the warrant affidavits by not including the Florence Police's decision to not pursue charges. See Humbert, 866 F.3d at 556.
Burns also argues that Perry lacked probable cause because Perry's investigation was not complete. For example, he argues Perry should have spoken to other males in the minor's life and notes that the minor's allegations were uncorroborated. However, negligent acts or omissions in an investigation are not sufficient to support a malicious prosecution claim (assuming without deciding that Perry's investigation was indeed incomplete). See Miller, 475 F.3d at 627. Regardless, probable cause is not vitiated by the mere possibility of third-party guilt or the suspect's protestations of innocence. See United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998) (“While probable cause requires more than ‘bare suspicion,' it requires less than that evidence necessary to convict.”); see also Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000) (“Reasonable law enforcement officers are not required to ‘exhaust every potentially exculpatory lead or resolve every doubt about a suspect's guilt before probable cause is established.' ”) (quoting Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir. 1991)). And notably, while Burns provides a list of areas Perry could have investigated further, he does not point to any exculpatory evidence that Perry missed or ignored. Perry was faced with conflicting accounts from the accuser and accused, which the jury apparently found was not sufficient to convict Burns. But here, the court must consider Perry's state of mind when she applied for the arrest warrants, and Burns fails to point to any evidence from which a reasonable jury could conclude that Perry recklessly or deliberately disregarded exculpatory evidence.
2. State Law Claims
In light of the recommendation that the defendants' motion for summary judgment be granted as to Burns's federal claim, the court should exercise its discretion to remand the state law claims to the Richland County Court of Common Pleas. See 28 U.S.C. § 1367(c) (authorizing a district court to decline to exercise jurisdiction over a supplemental claim); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50 (1988) (discussing the factors in deciding whether to exercise supplemental jurisdiction after removal). Here, Burns raises numerous state law claims that, in the interest of comity, are more appropriate for consideration in South Carolina's courts because they include complex issues of state law. See 28 U.S.C. § 1367(c) (listing bases for declining supplemental jurisdiction, including the presence of novel or complex issues of state law and the dismissal of federal claims); Hinson v. Nw. Fin. S.C, Inc., 239 F.3d 611, 617 (4th Cir. 2001) (finding the district court did not abuse its discretion to remand the case to state court where the federal claims were no longer at issue, the state claims predominated, and the state claims involved interpretations of complex state statutes on which there was no state precedent).
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motion for summary judgment be granted as to Burns's § 1983 claim and that this case be remanded to the Richland County Court of Common Pleas for consideration of Burns's state law claims.