Opinion
Case No. 4:19-cv-02079-JD-KDW
2021-08-24
Kristen DECINA, Plaintiff, v. HORRY COUNTY POLICE DEPARTMENT and Amos Berry, Defendants.
Amy Suzanne Lawrence, Justin Michael Lovely, The Lovely Law Firm, Myrtle Beach, SC, James Bernice Moore, III, Scott Christopher Evans, Evans Moore LLC, Georgetown, SC, for Plaintiff. Amanda Kurzen Dudgeon, J.W. Nelson Chandler, James Matthew Johnson, Chandler and Dudgeon, Charleston, SC, for Defendants.
Amy Suzanne Lawrence, Justin Michael Lovely, The Lovely Law Firm, Myrtle Beach, SC, James Bernice Moore, III, Scott Christopher Evans, Evans Moore LLC, Georgetown, SC, for Plaintiff.
Amanda Kurzen Dudgeon, J.W. Nelson Chandler, James Matthew Johnson, Chandler and Dudgeon, Charleston, SC, for Defendants.
ORDER & OPINION
Joseph Dawson, III, United States District Judge
This matter is before the Court with the Report and Recommendation ("Report and Recommendation" or "Report") of United States Magistrate Judge Kaymani D. West made in accordance with § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) of the District of South Carolina. Kristen Decina ("Decina" or "Plaintiff") brought this case alleging a 42 U.S.C § 1983 claim against officer Amos Berry ("Berry") for False Arrest and Malicious Prosecution and other State law claims against Horry County Police Department ("HCPD") (Berry and HCPD collectively "Defendants") after she was arrested for domestic violence charges on January 22, 2018. (DE 57, pp. 1-3.) Defendants filed a Motion for Summary Judgment contending inter alia that Plaintiff's 42 U.S.C. § 1983 claim fails because Plaintiff's arrest was made pursuant to a facially valid arrest warrant supported by probable cause. (DE 57, p. 4.) Moreover, Defendants further contend that Berry is entitled to qualified immunity for Plaintiff's alleged constitutional violation claims. (DE 57, p. 4.) For the reasons set forth herein, the Court adopts the Report and Recommendation and grants the Defendants’ Motion for Summary judgment.
The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
As the Court dismisses Plaintiff's sole federal claim herein, the Court declines to retain jurisdiction over the remaining state claims per 28 U.S.C. § 1367(c) (providing that the district courts may decline to exercise supplemental jurisdiction as to claims forming the same case or controversy as those within the court's original jurisdiction if the district court has dismissed all claims over which it has original jurisdiction).
BACKGROUND
A full recitation of Plaintiff's allegations is set forth in the Report, which the Court adopts. However, given the objections raised by Plaintiff and for the sake of brevity, the following summary of facts is sufficient for the matters addressed herein.
In the early morning hours of January 6, 2018, a physical domestic dispute occurred when Brandon Atkinson ("Atkinson") came to Decina's home despite her warning him that he was not welcome. (DE 57, p. 2.) As a result, Decina sustained damage to inter alia her front door, vehicle, and person. (DE 57, p. 2. DE 42, p. 1.) Decina called Horry County 911 around 1:46 a.m. and then twice more later in the morning. (DE 57, p. 2.) As a result, Berry was dispatched to her home around 9:00 a.m. that day, met with Decina and observed her injuries and damage, and then met with Atkinson. (DE 57, p. 2.) Atkinson admitted to causing damage to Decina's property, and to grabbing Decina to calm her down. (DE 42, p. 5.) However, Atkinson also reported that Decina bit him on the chest while he was grabbing her. (DE 42, p. 7.) Additionally, Berry testified Atkinson stated that "[Decina] threw a knife" and that there "was a weapon [sic] involved." (DE 57, p. 7. DE 42, p. 7.) Based on his investigation, Berry pursued an arrest warrant for both Decina and Atkinson. Thereafter, Berry emailed his case reports, the two warrant request forms, and photographs of Decina and Atkinson's injuries to Horry County Magistrate's Office on January 6, 2018, because he would not be on duty the following day. (DE 57, p. 7.)
During his deposition, Berry stated that he could not determine who the primary aggressor was in the incident because he received conflicting statements. (DE 57, p. 7.) However, notwithstanding Atkinson violations, Berry believed Decina violated section 16-25-20(A) —(C) of the South Carolina Code ; thus, sought out an arrest warrant for second-degree domestic violence against Decina. (DE 57, p. 7.)
As a result, Officer Deneane Pennington ("Pennington" or "Officer Pennington") appeared and presented the two warrants to the Horry County Magistrate Judge ("County Magistrate"). (DE 57, p. 8.) Pennington also testified that she handed Berry's investigative reports to the County Magistrate. Though Officer Pennington could not positively state that the County Magistrate read the reports, she testified that she presented the reports to him prior to the execution. The County Magistrate signed the warrant on January 22, 2018, and Decina was arrested for Second Degree Domestic Violence. However, she was later released on a $5,000.00 bond and her charges were eventually dismissed during her preliminary hearing because the State took no position on the matter. (DE 42, p. 10. DE 57, p. 13.)
Plaintiff contends that she was falsely arrested because inter alia there was no probable cause to support the arrest warrant and the County Magistrate erroneously relied on unsworn information in the investigatory report to establish probable cause. (DE 57, p. 4.) Additionally, Plaintiff contends that Berry is not entitled to qualified immunity because he deliberately, or with reckless disregard for the truth, made a material misrepresentations or omissions in his warrant application. The Report recommends granting Defendants’ Motion for Summary Judgment because Berry had probable cause to arrest her and he is otherwise entitled to qualified immunity. For the reasons set forth herein, the Court adopts the Report and Recommendation and grants Defendants’ Motion for Summary Judgment.
DISCUSSION
1234 Although Plaintiff has filed an objection to the Report (DE 59), to be actionable, objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce , 727 F.2d 91, 94 & n.4 (4th Cir. 1984). "The Supreme Court has expressly upheld the validity of such a waiver rule, explaining that ‘the filing of objections to a magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.’ " Diamond v. Colonial Life & Accident Ins. Co. , 416 F.3d 310, 315 (2005) (citing Thomas v. Arn , 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (emphasis added)). "A general objection to the entirety of the magistrate judge's report is tantamount to a failure to object." Tyler v. Wates , 84 F. App'x 289, 290 (4th Cir. 2003). "Likewise, a mere restatement of the arguments raised in the summary judgment filings does not constitute an "objection" for the purposes of district court review." Nichols v. Colvin , 100 F. Supp. 3d 487 (E.D. Va. 2015). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis , 718 F.2d 198, 199 (4th Cir. 1983).
Plaintiff makes the following "objections" to the Report, which the Court will discuss seriatim. First, Plaintiff contends that the Report improperly resolved three disputed issues of fact in favor of Berry rather than Decina, and the Report failed to address that Berry was disciplined for unlawfully arresting Decina. Accordingly, Plaintiff identifies three statements in the Report that are conclusions by the Magistrate regarding whether Berry omitted key facts from his warrant affidavit that would have negated probable cause and whether Barry's conduct entitled him to qualified immunity. Although the record reveals that Plaintiff does not contest that the alleged omitted facts were in fact present in Berry's investigatory report and that the report was sent to the County Magistrate's office along with the warrant form, Plaintiff argues that the Report assumes that the County Magistrate read the information before executing the arrest warrant. Moreover, Plaintiff concedes this objection was already raised in his opposition to Defendants’ Motion for Summary Judgment and ultimately rejected by the Report. See DE 59 p. 2 ("For each of these factual conclusions contained within the Report and Recommendation the Plaintiff has provided direct or circumstantial evidence upon which a jury could reasonably conclude otherwise." (emphasis added)). "Restatements of the arguments raised in the summary judgment filings does not constitute an "objection" for the purposes of district court review." Nichols v. Colvin , 100 F. Supp. 3d 487 (E.D. Va. 2015). Since Plaintiff has offered nothing new on this issue, the Court overrules this objection because it is non-specific.
Plaintiff's qualified immunity objection will be addressed separately at the end of this Order and Opinion.
Plaintiff also claims the warrant is invalid because unsworn items in an investigatory file cannot be used to establish probable cause; and therefore, the County Magistrate could not base his probable cause determination on Berry's report. Plaintiff cites State v. Driggers, 322 S.C. 506, 511, 473 S.E.2d 57, 60 (App. 1996) for the proposition that an unsworn written statement cannot be used to supplement an arrest affidavit. To the contrary, Driggers supports the Report's analysis holding that:
... a sworn affidavit incorporated the written statement when the affidavit directly and expressly referred to it. See State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1976) (affidavits in support of search warrants should be viewed in a common sense and realistic fashion since they are not meticulously drawn by lawyers). Thus, the magistrate justifiably used the information in making his determination because Howell gave the written statement to the magistrate along with his affidavit. See State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (App. 1995) (in determining probable cause, the magistrate should use all of the information available to him at the time the warrant was issued).
State v. Driggers, 322 S.C. 506, 511 n.1, 473 S.E.2d 57, 60 (App. 1996). In addition, Plaintiff contends there is a factual dispute as to whether the County Magistrate ever read Berry's report. However, the record indicates that Berry's report was emailed to the County Magistrate and also presented to him by Pennington. (DE 57, pp. 7-8.) As such, Plaintiff has not forecasted sufficient evidence to indicate the County Magistrate did not review the information. Accordingly, this Court finds the Report correctly determined the County Magistrate could look to Berry's report in determining probable cause, and there is nothing in the record to show that the County Magistrate failed to consider the information available to him to fulfill his duties.
5 As to Plaintiff's claim that the Report fails to address that Berry was actually disciplined for making an unlawful arrest of the Plaintiff, this objection is equally non-specific because it is not a factual issue at the heart of the dispute between the parties. Plaintiff filed her lawsuit alleging inter alia false arrest which was predicated on an arrest warrant issued by a County Magistrate not a warrantless arrest by Berry. "The magistrate should determine probable cause based on all of the information available to the magistrate at the time the warrant was issued." State v. Dupree , 354 S.C. 676, 684, 583 S.E.2d 437, 441 (App. 2003). "An arrest warrant is invalid only if the officer preparing the affidavit included a false statement with reckless disregard for its truth and, after that statement is redacted, ‘the affidavit's remaining content is insufficient to establish probable cause.’ " Cahaly v. Larosa , 796 F.3d 399, 408 (4th Cir. 2015) ; citing, Franks v. Delaware , 438 U.S. 154, 156, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Accordingly, disciplinary actions by HCPD against Berry, if any, are immaterial to Decina's false arrest claim because her false arrest claim is predicated on the information available to the County Magistrate when the warrant was issued not whether, in hindsight, Berry misapplied State law or if Decina was guilty of criminal domestic violence. See Cahaly , 796 F.3d at 408 ; citing , Heien v. North Carolina , 574 U.S. 54, 135 S. Ct. 530, 536-37, 190 L. Ed. 2d 475 (2014) ("Even if that determination was wrong as a matter of law, officers may have probable cause to arrest based on "reasonable mistakes of law."). Thus, as Plaintiff has not forecasted any material facts in dispute, the Court is unmoved by Plaintiff's objection.
Equally, Plaintiff objects that since Berry did not properly make a primary aggressor assessment, there was no probable cause to arrest Decina. (DE 59, pp. 5-6.) However, the Report indicates that Berry testified that he interviewed Plaintiff and Atkinson and could not determine who the primary aggressor was in the incident because he received conflicting statements. As noted in Cahaly, reasonable mistakes of law will not negate probable cause. See Cahaly, 796 F.3d at 408 supra. Since Plaintiff has not cited any law to support that Berry lacked probable cause notwithstanding a determination of a primary aggressor, the Court rejects this objection.
In addition, Plaintiff contends that the warrant narrative also failed to address facts favorable to Plaintiff such as the presence of bruises, abrasions, and dried blood on Decina's body and Atkinson's confession regarding property damage. (DE 59, p. 6.) Plaintiff attempts to support this argument by relying on her witness HCPD Investigator Don Causey's ("Causey") opinion. However, Plaintiff omits that he did not interview Atkinson nor did he take into account Atkinson's contention that Plaintiff repeatedly charged at him and threw a knife at him. Instead, Causey believed the only aggressive act by Plaintiff was throwing Atkinson's cell phone. (DE 44, pp. 9-10. DE 44-1, p. 64.) Moreover, after taking the time in his deposition to review the submission, Causey conceded he did not see anything incomplete or inaccurate in the Berry's warrant requests. (DE 44, p. 10. DE 44-1 pp. 69-70.) Therefore, this objection lacks merit.
6 Finally, Plaintiff objects to the Report's finding that Berry is entitled to qualified immunity because the facts in the light most favorable to Plaintiff indicate that she was seized without probable cause in violation of her Fourth Amendment rights. (DE 59, p. 13.) "The Fourth Amendment prohibits law enforcement officers from making unreasonable seizures, and seizure of an individual effected without probable cause is unreasonable." Brooks v. City of Winston-Salem, N.C. , 85 F.3d 178, 183 (4th Cir. 1996). The United States Supreme Court held that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When evaluating a qualified immunity defense, the court must determine (1) whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendants’ conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. See Pearson v. Callahan , 555 U.S. 223, 230-33, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). As already discussed herein, the Court determined that Berry had probable cause to arrest Decina. Accordingly, as Decina has not forecasted any new evidence showing that Berry violated Decina's fourth amendment rights, the Court finds that evidence when viewed in the light most favorable to Decina shows that Berry performed the discretionary functions of his respective official duties in an objectively reasonable fashion, and thus is entitle to qualified immunity.
Accordingly, after a thorough review of the Report and Recommendation and the record in this case, the Court adopts the Report and Recommendation (DE 57) and incorporates it herein, and grants Defendants’ Motion for Summary Judgment as to the federal claims against Defendant Berry, and the Court declines to retain jurisdiction over the remaining state law claims.
It is, therefore, ORDERED that Defendants’ Motion for Summary Judgment (DE 39) is granted; and therefore, Plaintiff's Complaint is dismissed.
IT IS SO ORDERED.
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that they have the right to appeal this order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Plaintiff filed this 42 U.S.C. § 1983 action alleging that Defendants violated her Fourth Amendment rights during the course of her arrest and subsequent imprisonment. Plaintiff also brings South Carolina state law claims against Defendants. This matter is before the court on Defendants’ Motion for Summary Judgment, ECF No. 39, filed on September 17, 2020. On September 23, 2020, Plaintiff filed a Response in Opposition to Defendants’ Motion, ECF No. 42, and Defendants filed a Reply on October 7, 2020, ECF No. 44. Therefore, this matter is now ripe for review. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(f), D.S.C. Because this Motion is dispositive, a Report and Recommendation is entered for the court's review.
I. Background
Kristen Decina ("Plaintiff"), brought this lawsuit after she was arrested for domestic violence charges on January 22, 2018. Compl. ¶¶ 20-24, ECF No. 1-1. Initially, Plaintiff filed this matter in the Court of Common Pleas for the Fifteenth Judicial Circuit on June 22, 2019, against the Horry County Police Department ("HCPD") and Defendant Berry, an investigating officer. ECF No. 1, 1-1. Defendants removed this action to federal court on July 25, 2019. Id.
In her Complaint, Plaintiff alleges that her former boyfriend, Brandon Atkinson ("Mr. Atkinson"), came to her Horry County home in the early morning hours of January 6, 2018, despite her warning him that he was not welcome there. ECF No. 1-1 at ¶¶ 5-7. She maintains he entered her home by pushing his way inside and eventually became physically aggressive towards her. Id. at ¶ 8. Plaintiff represents that she was eventually able to lure Mr. Atkinson outside and into the front yard. Id. at ¶ 9. She alleges he tried to regain entry into her home by kicking and beating on her front door, causing her to call Horry County 911 around 1:46 a.m. and twice more in the early morning hours for assistance. Id. at ¶¶ 10-12; 15. Plaintiff alleges that Lance Corporal Amos Berry of the Horry County Police Department ("Defendant Berry") was dispatched to her home around 9:00 a.m. Id. at ¶ 16. Plaintiff represents that Defendant Berry met with her and observed damage to her person and property. Id. ¶ 17. Plaintiff maintains Defendant Berry later met with Mr. Atkinson. See id. at ¶ 18.
Plaintiff represents Defendant Berry sought out an arrest warrant for second-degree domestic violence against her. Id. at ¶ 19. She alleges that the information contained in the warrant "was false and unsubstantiated [and] omitted several key points." Id. Plaintiff represents that Officer Deneane Pennington of the Horry County Police Department attested to the false narrative presented in the warrant on Defendant Berry's behalf. Id. at ¶ 20. Further, she maintains that on the same day, Defendants sought an arrest warrant against Mr. Atkinson for third-degree domestic violence. Id. at ¶ 21. Plaintiff indicates that on January 22, 2018, she was arrested for second-degree domestic violence and booked at the J. Rueben Long Detention Center. Id. at ¶ 22. Plaintiff maintains that the criminal charge against her remained pending until her preliminary hearing on March 9, 2018. Id. at ¶ 24. Plaintiff alleges that the presiding judge at the hearing "determined that Defendant Berry and the Horry County Police Department failed to establish probabl[e] cause to justify her arrest." Id. Therefore, she maintains that the domestic violence charge against her "was dismissed for lack of probable cause...." Id. at ¶ 25.
Plaintiff asserts four causes of action. She maintains three state law causes of action against HCPD for negligence/gross negligence; malicious prosecution; and false imprisonment/false arrest. Id. at ¶¶ 27-53. In her final cause of action, Plaintiff brings a claim pursuant to 42 U.S.C § 1983 against Defendant Berry for False Arrest and Malicious Prosecution. Id. at ¶¶ 54-61. Plaintiff seeks actual, consequential, and punitive damages, along with attorneys’ fees under 42 U.S.C. § 1983, and other relief that the court deems just and proper. Id. at ¶ 61.
II. Standard of Review
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548. 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 251, 106 S.Ct. 2505. 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
III. Analysis
Defendants assert several arguments in support of their Motion for Summary Judgment. ECF No. 39. In their first argument, Defendants assert that Plaintiff's 42 U.S.C. § 1983 claim fails because Defendant Berry did not violate Plaintiff's Fourth Amendment rights. Id. at 8-9. Specifically, Defendants argue that Plaintiff's arrest was made pursuant to a facially valid arrest warrant supported by probable cause. Id. Further, Defendants maintain that there is no § 1983 liability for allegedly negligent investigations, and Plaintiff's allegations of an alleged later prosecution fail to state a claim.1 Id. at 14-15. Further, concerning the constitutional violation claims, Defendants argue that Defendant Berry is entitled to qualified immunity. Id. at 15-17. Defendants argue that Plaintiff's South Carolina state tort claims are barred by the South Carolina Tort Claims Act. Id. at 17-21. Alternatively, Defendants argue that Plaintiff cannot establish the requisite elements of her state tort claims. Id. at 22-27.
A. Alleged Fourth Amendment Violation
In her only federal claim, Plaintiff alleges that Defendant Berry violated her civil rights under the Fourth Amendment "to be free from arrest without probable cause." ECF No. 1-1 at ¶ 55. Defendants assert that Plaintiff's arrest warrant was facially valid, supported by probable cause, and otherwise proper. ECF No. 39 at 8.
1. Validity of the Arrest Warrant
Defendants argue that "[b]ecause Plaintiff was arrested pursuant to a facially valid warrant, in order to prevail, Plaintiff must show that [Defendant] Berry deliberately or with a ‘reckless disregard for the truth’ made material false statements in the warrant application, or omitted from that application ‘material facts with the intent to make, or with reckless disregard of whether they thereby made, the [application] misleading.’ " Id. at 9 (citations omitted). The Fourth Circuit Court of Appeals has held that " ‘[r]eckless disregard’ can be established by evidence that an officer acted ‘with a high degree of awareness of [a statement's] probable falsity,’ that is, ‘when viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.’ " Miller v. Prince George's Cty., MD , 475 F.3d 621, 627 (4th Cir. 2007) (quoting Wilson v. Russo , 212 F.3d 781, 788 (3d Cir. 2000)) (modifications in original). Omissions may reach "reckless disregard" as required by Miller if the officer did not relay to the judge facts that he "knew would negate probable cause." Miller , 475 F.3d at 627 (quoting Beauchamp v. City of Noblesville, Inc. , 320 F.3d 733, 743 (7th Cir. 2003) ). To satisfy the standard set by Miller , the officer's false statements or omissions must be more than "negligence or innocent mistake." Miller , 475 F.3d at 627–628 (quoting Franks v. Delaware , 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ).
In Response, Plaintiff argues that it was only through the omission of key details in the warrant affidavit that the warrant was obtained. ECF No. 42 at 17. She acknowledges the existence of an arrest warrant and that she must demonstrate that Defendant Berry acted with deliberate disregard for the truth by omitting from the affidavit "material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading." Id. (emphasis in Brief). Specifically, Plaintiff argues the following facts that were omitted from the affidavit negated probable cause: (1) that Plaintiff had repeatedly and unequivocally directed Mr. Atkinson to refrain from entering her private residence; (2) that Mr. Atkinson was intoxicated; (3) that Mr. Atkinson caused numerous injuries to Plaintiff that were witnessed and verified by Defendant Berry; and (4) that Mr. Atkinson admittedly caused substantial property damage throughout her home and to her vehicle. Id.
In Reply, Defendants argue the four allegedly omitted facts were presented to the Magistrate through Defendant Berry's report. ECF No. 44 at 3. Moreover, Defendants maintain these alleged omissions were not material to the issue of probable cause. Id. Additionally, Defendants represent that several other alleged omitted facts were not presented to Defendant Berry until after the arrest warrant was procured. Id. at 5.
2. Facts Presented to the County Magistrate Judge
The warrant indicates Plaintiff was arrested for violation of section 16-25-0020(C) of the South Carolina Code. ECF No. 39-10. Section 16-25-20 (C) provides:
(C) A person commits the offense of domestic violence in the second degree if the person violates subsection (A) and:
(1) moderate bodily injury to the person's own household member results or the act is accomplished by means likely to result in moderate bodily injury to the person's own household member;
(2) the person violates a protection order and in the process of violating the order commits domestic violence in the third degree;
(3) the person has one prior conviction for domestic violence in the past ten years from the current offense; or
(4) in the process of committing domestic violence in the third degree one of the following also results:
(a) the offense is committed in the presence of, or while being perceived by, a minor;
(b) the offense is committed against a person known, or who reasonably should have been known, by the offender to be pregnant;
(c) the offense is committed during the commission of a robbery, burglary, kidnapping, or theft;
(d) the offense is committed by impeding the victim's breathing or air flow; or
(e) the offense is committed using physical force or the threatened use of force against another to block that person's access to any cell phone, telephone, or electronic communication device with the purpose of preventing, obstructing, or interfering with:
(i) the report of any criminal offense, bodily injury, or property damage to a law enforcement agency; or
(ii) a request for an ambulance or emergency medical assistance to any law enforcement agency or emergency medical provider.
The initial part of the statute, or section 16-25-20(A) provides:
(A) It is unlawful to:
(1) cause physical harm or injury to a person's own household member; or
(2) offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.
Based on the materials he gathered during the course of his investigation, Defendant Berry believed Plaintiff violated section 16-25-20(A) — (C) of the South Carolina Code. See ECF Nos. 39-1; 39-4; 39-7; 39-10. In his deposition, Defendant Berry testified that he interviewed Plaintiff and Mr. Atkinson and could not determine who the primary aggressor was in the incident because he received conflicting statements. ECF No. 39-7 at 6. Further, he testified that Mr. Atkinson indicated that he wanted to press charges against Plaintiff in a statement he made. Id. at 7. Defendant Berry testified that he prepared the form affidavits for the arrest warrants, including the narratives found in each warrant. Id. at 8-9. Additionally, Defendant Berry testified that he presented a warrant for a second-degree domestic violence charge against Plaintiff because of Mr. Atkinson's allegation that "she threw a knife" or "[b]ecause of a weapon being involved." Id. at 10. Undisputed evidence indicates that Defendant Berry emailed his case reports; the two warrant request forms; and photographs of Plaintiff and Mr. Atkinson's injuries to the Magistrate, or the inbox for the County Magistrates. ECF No. 39-1; 39-7. Specifically, these documents were emailed to the Horry County Magistrate's Office on Saturday, January 6, 2018, at 7:34 p.m., the same day as the incident. See ECF No. 39-1. In his deposition Defendant Berry confirmed that he sent the email to the Magistrate's office because he was not on duty the following day. ECF No. 39-7 at 9, 12. Thereafter, another officer, Officer Pennington, appeared and presented the two warrants to the Magistrate for execution. ECF No. 39-7 at 12; ECF No. 39-9.
During her deposition, Officer Pennington testified that she handed Defendant Berry's investigative reports to the magistrate judge, Judge Arakas, when she presented the arrest warrants. ECF No. 39-9 at 6-9. Though Officer Pennington could not positively state that Judge Arakas read the reports, she testified that she presented the reports to him during the execution. Id. at 9. Specifically, Officer Pennington testified: "I did say to him, [d]o you want to go ahead and read this report? Because there's a lot of information in here, and I didn't investigate this. So do you want to read it over yourself? And then I gave him the report." Id. Later in her deposition Officer Pennington confirmed: "I gave [Judge Arakas] the report and the two Warrant Requests to read on his own...." Id. at 18.
The undersigned notes the four facts Plaintiff alleges were omitted from the warrant's affidavit were included in Defendant Berry's report. See ECF No. 39-1. Specifically, his report included: Plaintiff's instruction to Mr. Atkinson to refrain from entering her private residence; Plaintiff's representation to Defendant that Mr. Atkinson was intoxicated when he came to her residence; bodily injuries to Plaintiff allegedly caused by Mr. Atkinson; and property damage caused by Mr. Atkinson. See id.
Both parties present arguments concerning whether the four allegedly omitted facts were presented to the magistrate judge who signed the arrest warrants. Defendants maintain that a report containing these facts was both emailed to the magistrate court and presented to the magistrate judge in person. See ECF No. 39 at 9-10. Plaintiff maintains that there is no indication that the magistrate judge read the report that was submitted to him. ECF No. 42 at 19. Moreover, Plaintiff argues that the magistrate is permitted to rely only on the affidavit to the warrant and sworn testimony. Id. at 20.
The investigating officer's job is to present the facts known to him at the time the warrant is presented, and there is undisputed evidence that Defendant Berry did just that. Law enforcement officers often do not know how much a judge has read or relied on information provided. Ultimately, it is the decision of the court, or magistrate in this instance, to decipher whether probable cause exists with the information that has been provided. In many instances, the court reviews information beyond the four corners of the warrant in making that determination. See Boxx v. City of N. Charleston, No. CV 2:18-0760-MBS, 2019 WL 4750149, at *9 (D.S.C. Sept. 30, 2019) (holding magistrates can issue warrants based upon hearsay information that is not a result of direct personal observations of the affiant and that probable cause can be supported by information given to the affiant by other officers such as an incident report); Smith v. Tilley , No. 2:17-CV-14-FL, 2019 WL 960602, at *6 (E.D.N.C. Jan. 17, 2019), report and recommendation adopted , No. 2:17-CV-14-FL, 2019 WL 942964 (E.D.N.C. Feb. 25, 2019) ("[T]he hearsay character of information received does not preclude reliance on it."); see also Evans v. Chalmers , 703 F.3d 636, 650 (4th Cir. 2012) ("Of course, the truthfulness of a witness statement is irrelevant as to whether affiants’ statements were truthful.").
Plaintiff argues: "South Carolina does not permit a deficiency in a warrant affidavit to be supplemented by anything other than sworn testimony." ECF No. 42 at 20. In support of this position, Plaintiff references section 22-3-710 of the South Carolina Code that provides: "All proceedings before magistrates in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue." The undersigned finds that the requirements of section 22-3-710 were met in this instance because of the sworn statements contained in the four corners of the affidavit presented to Judge Arakas. However, the undersigned does not agree with the rigid interpretation of Plaintiff regarding section 22-3-710.
Several South Carolina state court cases interpret section 22-3-710 of the South Carolina code to mean that the affidavit upon which the Magistrate relies must contain a sworn statement setting forth the offence charged. State v. Crane, 296 S.C. 336, 372 S.E.2d 587, 588 (1988) ; State v. McKnight , 291 S.C. 110, 352 S.E.2d 471 (1987) ; State v. Sachs , 264 S.C. 541, 216 S.E.2d 501 (1975). In the Crane case, the South Carolina Supreme Court noted that a warrant may be supplemented by sworn oral testimony. Crane, 372 S.E.2d at 588. Furthermore, in another case, the South Carolina Court of Appeals acknowledged that "other jurisdictions have upheld warrants where the affiant was not sworn until after stating facts necessary to supplement the affidavit." State v. Robinson , 335 S.C. 620, 518 S.E.2d 269, 275 (App. 1999) (citing Ohio v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986) ) (holding oath was not constitutionally infirm where it was given after officers had testified about probable cause); cf. Commonwealth v. Bass, 24 Mass.App.Ct. 972, 512 N.E.2d 519 (1987) (where a search warrant was upheld even though supplemental information contained in unsworn typewritten pages was considered in issuing the warrant); Michigan v. Mitchell, 142 Mich.App. 518, 370 N.W.2d 392 (1985) (noting that though the affidavit was unsigned when the search warrant was issued, it may be signed and sworn to nunc pro tunc ); People v. Sullivan, 56 N.Y.2d 378, 452 N.Y.S.2d 373, 437 N.E.2d 1130 (1982) (holding as long as there is a method of verification alerting the maker of the statement of the consequences of providing false information, then the affidavit is supported by "oath or affirmation," even if unsworn); Loudermilk v. Oklahoma, 83 Okla.Crim. 374, 177 P.2d 129 (1947) (noting that no particular ceremony is necessary to constitute the act of swearing to an affidavit for a search warrant).
Therefore, the undersigned finds the requirements of section 22-3-710 of the South Carolina were met based on the plain reading of the statute, and the officer's sworn testimony in the affidavit. The supplemental information provided in addition to the sworn testimony does not invalidate the arrest warrant or the procedure used to obtain it. See e.g. United States v. Clyburn , 24 F.3d 613, 614 (4th Cir. 1994) ("Because the Fourth Amendment does not forbid supplementation of written warrant affidavits with sworn, unrecorded oral testimony, we hold that the evidence obtained here met the requirements of admissibility, and affirm the district court's refusal to suppress it."); United States v. Legg , 18 F.3d 240, 243 (4th Cir. 1994) ("[I]t is proper to consider any contemporaneous oral statements to the magistrate in conjunction with the supporting affidavit in assessing the reasonableness of an officer's reliance on a warrant."); see also Gomez v. Atkins , 296 F.3d 253, 265 (4th Cir. 2002) (noting that the magistrate did not have access to an officer's report when issuing the warrant by finding "[n]othing in the record indicates that the district court judge had access to or reviewed the Report prior to his finding of probable cause"). Based on the presentation of facts to the magistrate judge, the undersigned finds that Plaintiff fails to meet her burden to demonstrate that Defendant Berry acted with deliberate or reckless disregard for the truth by intentionally omitting material facts from the affidavit.
3. Existence of Probable Cause
Probable cause exists if the "facts and circumstances within the officer's knowledge [ ] are sufficient to warrant a prudent person ... in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). "In assessing the existence of probable cause, courts examine the totality of the circumstances known to the officer at the time of the arrest." Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996). "Probable cause requires more than ‘bare suspicion’ but requires less than evidence necessary to convict." Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (internal citations omitted). Reasonable law officers need not "resolve every doubt about a suspect's guilt before probable cause is established." Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir. 1991). Probable cause will be found when "the facts and circumstances within an officer's knowledge—or of which he possesses reasonably trustworthy information—are sufficient in themselves to convince a person of reasonable caution that an offense has been or is being committed." Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000). " ‘Whether probable cause exists in a particular situation ... always turns on two factors in combination: the suspect's conduct as known to the officer, and the contours of the offense thought to be committed by that conduct.’ " Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001) (quoting Pritchett v. Alford , 973 F.2d 307, 314 (4th Cir. 1992) ). "Probable cause therefore could be lacking in a given case, and an arrestee's right violated, either because of an arresting officer's insufficient factual knowledge, or legal misunderstanding, or both." Id. A court's inquiry should be made based on the information possessed by the officer at the time of the arrest that was then reasonably available to him at the time of arrest, and "in light of any exigencies of time and circumstance that reasonably may have affected the officer's perceptions." Pritchett, 973 F.2d at 312. When a plaintiff alleges a lack of probable cause for an arrest, he "must allege a set of facts which made it unjustifiable for a reasonable officer to conclude" that the plaintiff was involved in the charged offense. Brown v. Gilmore, 278 F.3d 362, 368 (4th Cir. 2002).
A facially valid arrest warrant provides the arresting officer with sufficient probable cause to arrest the individual identified in the warrant. Baker v. McCollan , 443 U.S. 137, 143–44, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Therefore, "[a] public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant.... Thus, we recognize implicitly that a claim for false arrest may be considered only when no arrest warrant has been obtained." Porterfield , 156 F.3d at 568 (citing Brooks v. City of Winston–Salem , 85 F.3d 178 (4th Cir. 1996) ). As discussed above, Plaintiff was arrested pursuant to a facially valid arrest warrant signed by the Magistrate Court Judge. ECF No. 39-10.
Defendants argue probable cause existed for the warrant and arrest regardless of the four allegedly omitted facts. ECF No. 39 at 11. Specifically, they maintain that the nature of the charges themselves, the narratives of the parties that were necessarily competing, and the totality of the circumstances supported Defendant Berry's decision to present both warrant requests to the Magistrate. Id. at 11. Regarding the existence of probable cause, Plaintiff argues that the dismissal of the charges at the preliminary hearing indicate probable cause did not exist to arrest Plaintiff. ECF No. 42 at 10-11. A review of the preliminary hearing transcript indicates that the presiding judge, Judge Harris, dismissed Plaintiff's charges after the State took no position on the matter, and there was no discussion about probable cause for the arrest. See ECF No. 42-16 (emphasis added). Plaintiff's argument concerning the preliminary hearing does not negate the magistrate judge's finding that probable cause existed at the time of her arrest. See Michigan v. DeFillippo, 443 U.S. at 36, 99 S.Ct. 2627. ("The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest.").
The undersigned finds that the investigative materials and the warrant did not omit a material fact that would have negated probable cause for arresting Plaintiff, and the facts in Defendant Berry's affidavit were sufficient to establish probable cause for Plaintiff's arrest. Reviewing the evidence in the record in the light most favorable to Plaintiff, the court cannot conclude that Defendant Berry had information from which a reasonable and prudent police officer could not conclude there was probable cause to support her arrest. Accordingly, the undersigned recommends Defendant Berry be granted summary judgment on Plaintiff's § 1983 claim against Defendant Berry for a violation of her Fourth Amendment rights.2
B. Qualified Immunity
Defendants argue Defendant Berry is entitled to qualified immunity because (1) Plaintiff cannot establish that he violated any of Plaintiff's constitutional rights and (2) there is no clearly established law that would have placed Defendant Berry on notice that his action might violate Plaintiff's Constitutional rights. ECF No. 39 at 15-17. Plaintiff argues that she was seized without probable cause, and Defendant Berry is not entitled to qualified immunity. ECF No. 42 at 21-24. Based on the above reasoning, the undersigned agrees with Defendant.
The Supreme Court in Harlow v. Fitzgerald established the standard that the court is to follow in determining whether a defendant is protected by this immunity. That decision held that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When evaluating a qualified immunity defense, the court must determine (1) whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendants’ conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan , 555 U.S. 223, 230-33, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The two prongs of the qualified immunity analysis may be addressed in whatever order is appropriate given the circumstances of the particular case. Id. at 236, 129 S.Ct. 808. In determining whether the right violated was clearly established, the court defines the right "in light of the specific context of the case, not as a broad general proposition." Parrish v. Cleveland , 372 F.3d 294, 301-03 (4th Cir. 2004). "If the right was not clearly established in the specific context of the case—that is, if it was not clear to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation he confronted—then the law affords immunity from suit." Id. (citations and internal quotation omitted).
The record before the court shows that Defendant Berry performed the discretionary functions of his respective official duties in an objectively reasonable fashion. See McKinney v. Richland County Sheriff's Dept. , 431 F.3d 415, 419 (4th Cir. 2005) (holding an officer "would nonetheless be entitled to qualified immunity because the absence of probable cause would not have been evident to an objectively reasonable officer in these circumstances [and] [a] reasonable officer would not second guess these determinations [of a neutral and detached magistrate] unless probable cause was plainly lacking, which it was not"). Defendant Berry did not transgress any statutory or constitutional rights of Plaintiff that he was aware of in the exercise of his respective professional judgment. Thus, to the extent the district judge finds that a constitutional violation occurred, the undersigned recommends that Defendant Berry be granted qualified immunity.
C. State Law Claims
In addition to her § 1983 claim, Plaintiff bring separate state-law claims for negligence/gross negligence; malicious prosecution; and false imprisonment/false arrest. ECF No. 1-1 at ¶¶ 27-53. If the court accepts this Report and Recommendation, the only claims within the court's original jurisdiction will be dismissed. Without Plaintiff's § 1983 claims, Plaintiff's sole remaining causes of action are based on the court's supplemental jurisdiction. Section 1367(c)(3) of Title 28 of the United States Code provides that the district courts "may decline to exercise supplemental jurisdiction [as to claims forming the same case or controversy as those within the court's original jurisdiction] if the district court has dismissed all claims over which it has original jurisdiction[.]" Trial courts "enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished." Shanaghan v. Cahill , 58 F.3d 106, 110 (4th Cir. 1995) (district court did not abuse its discretion in declining to retain jurisdiction over the state law claims); See also, e.g., United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 726–27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ; Addison v. Chesterfield Cty. Sheriff Dep't , No. 4:12-CV-02543-RBH, 2013 WL 6799223, at *3 (D.S.C. Dec. 20, 2013) (declining to exercise supplemental jurisdiction over state-law claims upon granting summary judgment as to § 1983 claim); Wauben v. Protega (USA), Inc. , No. 2:05-2780-PMD-RSC, 2007 WL 775614, at *14 (D.S.C. Mar. 9, 2007) (same in Title VII matter).
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendants’ Motion for Summary Judgment, ECF No. 39, be granted as to the federal claims against Defendant Berry, and the court decline to retain jurisdiction over the remaining state claims .
IT IS SO RECOMMENDED.
June 10, 2021