Summary
explaining that federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) if “the district court has dismissed all claims over which it has original jurisdiction”
Summary of this case from Woods v. Brookside Pointe ApartmentsOpinion
Case No. 6:19-cv-03355-BHH-JDA
04-14-2020
Captain Matthew J. Hayduk, Plaintiff, v. Ben C. Cannon, Jr., Marvin Cannon, Johnny Brown, Shannon Piller, The Greenville County Sheriff's Office, Russell T. Irvin, Melissa Lawson, The City of Greenville, Emily Craigo Phalen, Silverleaf Homeowners Association Inc., Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on motions to dismiss filed by Defendants. [Docs. 9; 12; 26.] 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 this case and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action on July 8, 2019, in the Greenville County Court of Common Pleas. [Doc. 1-1.] Defendants Russell T. Irvin, Melissa Lawson, and the City of Greenville (the "City") (collectively, the "City Defendants") removed the action to this Court on November 27, 2019, based on federal question jurisdiction. [Doc. 1.] On December 4, 2019, the Silverleaf Defendants and the City Defendants filed motions to dismiss. [Docs. 9; 12.] On December 13, 2019, the Sheriff's Office Defendants filed a motion to dismiss. [Doc. 26.] On December 5 and 17, 2019, the Court issued Orders pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motions. [Docs. 17; 18; 29.] Plaintiff filed responses in opposition to the motions on February 24, 2020 [Docs. 46; 47; 48], and on March 2, 2020, all Defendants filed replies [Docs. 50; 51; 52]. Accordingly, all motions are ripe for review.
On December 4, 2019, Defendants Emily Craigo Phalen and Silverleaf Homeowners Association Inc. ("Silverleaf") (collectively, the "Silverleaf Defendants") filed a consent to removal [Doc. 8], and on December 13, 2019, Defendants Johnny Brown, Ben C. Cannon, Jr., Marvin Cannon, Shannon Piller, and the Greenville County Sheriff's Office (the "Sheriff's Office") (collectively, the "Sheriff's Office Defendants") filed a consent to removal [Doc. 25].
BACKGROUND
The facts included in this Background section are taken directly from the Complaint. [Doc. 1-1.]
Plaintiff alleges that he was detained on July 7, 2017, in Eden, North Carolina, based on an open arrest warrant in Greenville, South Carolina. [Doc. 1-1 at 13 ¶ 15.] Plaintiff was transported to the Greenville County Detention Center on July 12, 2017. [Id. at 13 ¶ 18.] Upon arriving in Greenville, Plaintiff was arrested by Brown with a warrant for unlawful carry (the "County Warrant"). [Id. at 13 ¶ 19.] According to Plaintiff, Phalen had contacted Ben Cannon on behalf of Silverleaf, and Ben Cannon subsequently improperly obtained the County Warrant. [Id. at 15 ¶¶ 32-34.] While awaiting processing at the Detention Center, Plaintiff was arrested by a City police officer on a separate warrant. [Id. at 13 ¶ 20.] According to Plaintiff, at Brown's request, Irvin had improperly obtained an arrest warrant for impersonating a law-enforcement officer (the "City Warrant"). [Id. at 17-18 ¶¶ 57-72.]
Plaintiff's mother posted bond, and Plaintiff was placed on home incarceration and GPS monitoring. [Id. at 14 ¶¶ 21-22.] Plaintiff claims that during his home incarceration, he "lost approximately 30 pounds of muscle mass, had bowel irregularities, was in severe untreated pain, sleep deprived and suffer[ed] unrelenting emotional distress." [Id. at 14 ¶ 23.] Plaintiff met with his criminal-defense attorney, C. Grant Varner, at the end of July 2017, who noted that the warrant affidavits did not establish probable cause. [Id. at 14 ¶ 25] Plaintiff's charges were dismissed on March 22, 2019. [Id. at 14 ¶ 26.] Plaintiff contends that, "[a]s a result of the unlawful actions of Defendants," he has suffered harm in the form of loss of his two minor children, lost income, irreparable military career damage, and severe emotional and physical distress. [Id. at 12.]
Plaintiff asserts the following causes of action: (1) false arrest/malicious prosecution based on his County Warrant arrest [id. at 14-17 ¶¶ 28-53]; (2) false arrest/malicious prosecution based on his City Warrant arrest [id. at 17-19 ¶¶ 54-73]; (3) false imprisonment based on his home incarceration [id. at 19 ¶¶ 74-80]; (4) failure to supervise [id. at 19-21 ¶¶ 81-94]; (5) civil conspiracy [id. at 21 ¶¶ 95-98]; (6) intentional infliction of emotional distress/outrage [id. at 21 ¶¶ 99-102]; (7) defamation/libel [id. at 21-22 ¶¶ 103-08]; (8) abuse of process based on his County Warrant arrest [id. at 22-23 ¶¶ 109-13]; (9) abuse of process based on his City Warrant arrest [id. at 23 ¶¶ 114-19]; (10) gross negligence [id. at 23-24 ¶¶ 120-25]; and (11) grossly negligent supervision [id. at 24 ¶¶ 126-31]. Plaintiff seeks compensatory and punitive damages, interest, fees and costs, injunctive relief, declaratory relief, and any other necessary relief. [Id. at 24-25.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 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. 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 complainant's legal arguments for him. 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).
Motion to Dismiss Standards
Rule 12(b)(5)
Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a defendant can move to dismiss a complaint where service of process did not comply with the requirements of Rule 4 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)(5). However, a noncompliance with Rule 4 of the Federal Rules of Civil Procedure does not mandate dismissal where the necessary parties have received actual notice of a suit and where they have not been prejudiced by the technical defect in service. See Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963) (upholding service upon the defendant's wife at a home to which the defendant never intended to return).
Rule 12(b)(6)Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
Requirements for a Cause of Action Under § 1983
This action is 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)).
Qualified Immunity
Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not "violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity does not protect an official who violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id. Further, qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
"In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry." Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). The first concerns whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the officer's conduct violated a federal right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The second "asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional." Smith, 781 F.3d at 100. For purposes of this analysis, a right is "clearly established" if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
District court judges are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a court decides in the negative the first prong it considers—i.e., the court decides the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation—the court need not consider the other prong of the qualified immunity analysis. See id. at 243-45; Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (holding the court "need not formally resolve" the constitutional question of "whether the [plaintiffs] were arrested without probable cause" to address the plaintiffs' § 1983 claim; the court stated that it "need only determine whether [the defendant]—a deputy sheriff performing within the normal course of his employment—acted with the objective reasonableness necessary to entitle him to qualified immunity").
DISCUSSION
Timeliness of Plaintiff's Responses in Opposition
Defendants argue that Plaintiff's responses in opposition were untimely and should be stricken and/or disregarded. [Docs. 50 at 1-2; 51 at 3-4; 52 at 2-4.] Although Plaintiff's responses to the motions to dismiss were due by February 21, 2020 [see Doc. 43], and Plaintiff did not file his responses until February 24, 2020 [Docs. 46; 47; 48], the Court concludes that striking and/or disregarding Plaintiff's responses would be too harsh a sanction in this case. Accordingly, the Court will consider Plaintiff's responses in opposition when ruling on the pending motions to dismiss.
Documents Attached to Plaintiff's Responses in Opposition
Plaintiff has submitted attachments to support each of his responses to the pending motions to dismiss [Docs. 46-1; 47-1; 48-1], and, relying on a case from the Seventh Circuit Court of Appeals, asserts that the Court should consider the attachments without converting the motions to motions for summary judgment [Docs. 46 at 3-4; 47 at 3-4; 48 at 3-4]. However, as stated, Rule 12(d) of the Federal Rules of Civil Procedure provides that "[i]f, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d); see also E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (noting that when deciding a Rule 12(b)(6) motion, courts are limited to considering the sufficiency of the allegations set forth in the complaint and the "documents attached or incorporated into the complaint"). Further, "[s]uch conversion is not appropriate where the parties have not had an opportunity for reasonable discovery." Id. Here, the parties have not had an opportunity for reasonable discovery; therefore, the Court declines to consider Plaintiff's attachments except to the extent that Plaintiff's Complaint incorporates such documents by reference.
The Court notes that Plaintiff mentions his desire to conduct depositions in his responses in opposition to the motions to dismiss. [Docs. 46 at 15, 16; 47 at 7.] He also asserts that probable cause is a question of fact for a jury. [Docs. 46 at 5; 47 at 4.] However, as stated, the question before the Court on a motion to dismiss is whether the Complaint states a claim upon which relief can be granted.
Defendant Lawson
The City Defendants argue that Lawson should be dismissed pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure because Plaintiff never served her with the Summons and Complaint in this case. [Doc. 12-1 at 3-4.] Plaintiff concedes that Lawson has not been served but indicates that "Lawson is no longer employed by the [C]ity having retired from active service." [Doc. 47 at 14.] Plaintiff also states that he has attempted to locate Lawson but has been unsuccessful. [Id.] Therefore, Plaintiff asks that he be allowed to serve Lawson by publication if counsel for the City Defendants refuses to accept service on behalf of Lawson. [Id.]
Section 1448 provides,
In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service
may be completed or new process issued in the same manner as in cases originally filed in such district court.28 U.S.C. § 1448. In Brazell v. Green, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision), the Fourth Circuit Court of Appeals vacated a district court order dismissing a removed case for failure to properly serve the defendants before removal and remanded the case to allow the plaintiff to re-serve the defendants. The Fourth Circuit noted that the defendants "had notice of the suit and [did] not claim to have been prejudiced by [the plaintiff's] failure to properly serve them." Id. Likewise, here, Lawson has notice of the suit and does not claim to have been prejudiced by the failure to serve her. Moreover, Rule 4(m) of the Federal Rules of Civil Procedure provides that "if the plaintiff shows good cause for the failure [to serve a defendant within 90 days after the complaint is filed], the court must extend the time for service for an appropriate period." Here, Plaintiff has established good cause. Thus, the City Defendants' motion to dismiss should be denied with respect to their request that Lawson be dismissed pursuant to Rule 12(b)(5), and Plaintiff should be granted additional time to serve Lawson.
Federal Claims
As an initial matter, the Court notes that the Complaint asserts that each cause of action is brought under the South Carolina Constitution and/or the South Carolina Tort Claims Act. [Doc. 1-1 at 14, 17, 19, 21, 22, 23, 24.] However, even though the Complaint does not reference § 1983, certain of Plaintiff's causes of action reference violations of Plaintiff's rights under the United States Constitution. [Id. at 14 ¶ 29, 15 ¶ 31, 17 ¶¶ 52, 54, 19 ¶¶ 72, 78, 20 ¶¶ 82, 93, 21 ¶¶ 96, 97, 22 ¶ 112, 23 ¶ 117.] Liberally construed, the Complaint alleges federal claims for false arrest/malicious prosecution based on Plaintiff's arrests, false imprisonment based on his home incarceration, failure to supervise, civil conspiracy, and abuse of process based on his arrests. [Id. at 14-21 ¶¶ 28-98, 22-23 ¶¶ 109-19.] And as explained below, Plaintiff's federal claims for false arrest/malicious prosecution based on his arrests, false imprisonment based on his home incarceration, and abuse of process based on his arrests are claims asserting that his Fourth Amendment rights were violated. Thus, the Court construes the Complaint as alleging three federal claims—for violation of Plaintiff's Fourth Amendment rights, failure to supervise, and civil conspiracy—and addresses these claims in turn.
Fourth Amendment Claim
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Section 1983 actions premised on false arrest, false imprisonment, or malicious prosecution 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"); 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."). The same is true of such claims complaining of due process 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."); see also McFadyen v. Duke University, 786 F. Supp. 2d 887, 936 (M.D.N.C. 2011) ("[T]hese alleged Fourth Amendment violations are the claims already alleged by Plaintiffs in Counts 1 and 2, and there is no legal basis for asserting a separate 'abuse of process' claim."), aff'd in part, rev'd in part, dismissed in part sub nom. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012).
The Complaint alleges that Plaintiff was arrested pursuant to arrest warrants. [Doc. 1-1 at 13 ¶¶ 19-20, 15 ¶ 34, 18 ¶ 68.] To state a claim that an arrest made pursuant to a warrant was not supported by probable cause, "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 [the] plaintiff's favor.'" Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017) (alteration in original) (quoting Evans, 703 F.3d at 647). To demonstrate that an officer seized an individual pursuant to an arrest warrant without probable cause, a plaintiff must allege 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." Millerv. Prince George's Cty., 475 F.3d 621, 627 (4th Cir. 2007) (internal citations and quotation marks omitted). For the officer to have acted with a "reckless disregard," he must have harbored "serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." Id. With regard to alleged omissions from an affidavit, the officer must have failed to inform the magistrate of facts that the officer knew would negate a finding of probable cause. Id. Additionally, "the false statements or omissions must be material, that is, necessary to the neutral and disinterested magistrate's finding of probable cause." Id. at 628 (alteration, internal citations, and quotation marks omitted).
The Court addresses each warrant in turn.
The County Warrant
Under the unlawful-carrying-of-a-handgun statute, "[i]t is unlawful for anyone to carry about the person any handgun, whether concealed or not," unless one of the sixteen listed exceptions applies. S.C. Code Ann. § 16-23-20. The Complaint asserts that the County Warrant was not supported by probable cause because:
• Ben Cannon "did not conduct any investigation whatsoever or even attempt to interview the Plaintiff or the Plaintiff's parents";
• "[t]he statement of probable cause intentionally omitted key facts including but not limited to the undisputed fact that the address listed for the alleged violation is privately owned property";
• "Ben Cannon . . . indicated he had a signed witness statement, but upon review of the signed statement it makes no reference to any fact which would support probable cause that Plaintiff committed the crime alleged";
• "the statement made by Ben Cannon" that Plaintiff carried a pistol "was completely inadequate to establish probable cause" because the term "pistol" is not mentioned anywhere in S.C. Code § 16-23-10;
• "Ben Cannon . . . did not have in evidence the object in question that he identified as a pistol and therefore could not properly state that a 'handgun' as defined in SC Code Section 16-23-10 . . . had been carried because visual observation would be inadequate to make the determination";[Doc. 1-1 at 15-16 ¶¶ 35-39, 41, 43, 46.] These allegations fail to allege, however, that Ben Cannon "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, 475 F.3d at 627.
• Ben Cannon stated legal conclusions that Plaintiff "did unlawfully carry" and "ha[d] no lawful right to do so," and these were determinations to be made by a trier of fact and not appropriate for a law enforcement officer to present as a fact when seeking an arrest warrant; and
• Ben Cannon "fail[ed] to investigate the exemptions and then present that information to the judge."
With respect to Plaintiff's allegation that Ben Cannon conducted no investigation and failed to interview Plaintiff or his parents [Doc. 1-1 at 15 ¶ 35], the Complaint itself contradicts Plaintiff's assertion that Ben Cannon conducted no investigation because the Complaint concedes that Ben Cannon had a signed witness statement [id. at 15 ¶ 37]. Moreover, the Fourth Circuit Court of Appeals has held that law enforcement officers are not required to conduct exhaustive investigations to establish probable cause. See e.g., McKinney v. Richland Cty. Sheriff's Dep't, 431 F.3d 415, 418-19 (4th Cir. 2005) ("The fact that [the officer] did not conduct a more thorough investigation before seeking the arrest warrant does not negate the probable cause established by the victim's identification."); Wadkins v. Arnold, 214 F.3d 535, 543 (4th Cir. 2000) ("The question before us is not whether [the officer] exhausted every potential avenue of investigation."); Torchinsky, 942 F.2d at 264 ("It will, of course, always be possible to contend in court that an arresting officer might have gathered more evidence, but judges cannot pursue all the steps a police officer might have taken that might have shaken his belief in the existence of probable cause."). Moreover, even though Plaintiff conclusorily asserts that the witness statement "makes no reference to any fact which would support probable cause" [Doc. 1-1 at 15 ¶ 37], Plaintiff does not assert that Ben Cannon did not believe that the statement supported probable cause, see United States v. Beckham, 325 F. Supp. 2d 678, 687 (E.D. Va. 2004) ("Particularly relevant here is the principle that a finding of probable cause may be based on information provided by a victim or eyewitness to a crime, as 'it is well-established that [w]hen an officer has received . . . information from some person—normally the putative victim or an eye witness—who it seems reasonable to believe is telling the truth, he has probable cause.'" (quoting Spiegel v. Cortese, 196 F.3d 717, 724 (7th Cir. 1999))). And Plaintiff's assertion that Ben Cannon presented legal conclusions [id. at 16 ¶¶ 41, 43] fails to allege that he made material false statements or omitted material facts.
The same is true of Plaintiff's assertions that Ben Cannon's statement that Plaintiff carried a "pistol" was insufficient to establish probable cause because that term is not mentioned anywhere in the definitions in S.C. Code § 16-23-10 [id. at 15 ¶ 38] and that Ben Cannon could not properly state that Plaintiff carried a "handgun" as defined in that section because he did not have the pistol in evidence [id. at 15 ¶ 39]. As an initial matter, the unlawful carrying statute itself uses the term "pistol" in one of the exceptions. S.C. Code Ann. § 16-23-20(16) ("It is unlawful for anyone to carry about the person any handgun, whether concealed or not, except . . . (16) [a]ny person on a motorcycle when the pistol is secured in a closed saddlebag or other similar closed accessory container attached . . . to the motorcycle."). Additionally, "[p]robable 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). Instead, probable cause "means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, 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 (1979).
Finally, Plaintiff's assertions that Ben Cannon omitted the fact that the address listed for alleged violation is privately owned property [Doc. 1-1 at 15 ¶ 36] and that he failed to investigate exceptions [id. at 16 ¶ 46] also fail to allege that he made a material false statement or omitted material facts. To the extent Plaintiff asserts that carrying a handgun on privately owned property does not violate the statute, he is incorrect. Section 16-23-20 provides that "[i]t is unlawful for anyone to carry about the person any handgun, whether concealed or not, except . . . (8) a person in his home or upon his real property or a person who has the permission of the owner or the person in legal possession or the person in legal control of the home or real property." Thus, even if the address listed for the alleged violation is privately owned property, because the Complaint does not also allege that Plaintiff owned the property or had permission of the owner to carry a handgun, omitting that the property was privately owned does not amount to a material omission. See Miller, 475 F.3d at 628 ("To determine materiality, a court must 'excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the "corrected" warrant affidavit would establish probable cause.'"). And, as set forth above, law enforcement officers are not required to conduct exhaustive investigations to establish probable cause. Likewise, "[a]n officer's knowledge that an apparent offender may have a defense against a charge does not necessarily negate probable cause." Lee v. Town of Fort Mill, 725 F. App'x 214, 220 (4th Cir. 2018).
Based on the above, the Complaint fails to allege that Ben Cannon "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, 475 F.3d at 627. Thus, Plaintiff has failed to allege that he was seized pursuant to an arrest warrant without probable cause and has failed to state a claim that his Fourth Amendment rights were violated with respect to the County Warrant.
The City Warrant
Under the impersonating-a-law-enforcement-officer statute,
[i]t shall be unlawful for any person other than a duly authorized law enforcement officer to represent to any person that he is a law enforcement officer and, acting upon such representation, to arrest or detain any person, search any building or automobile or in any way impersonate a law enforcement officer or act in accordance with the authority commonly given to such officers.S.C. Code Ann. § 16-17-720. Plaintiff asserts that the City Warrant was not supported by probable cause because:
• Irvin made "no allegation that [Plaintiff] attempted to arrest or detain any person[ or] search any building or automobile";[Id. at 17-18 ¶¶ 58, 61-63, 66-68.] These allegations fail to allege, however, that Irvin "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, 475 F.3d at 627.
• "Irvin at no time conducted an interview of the clerk of the store or obtained a witness statement from any person who had first hand knowledge of the incident";
• "[t]here is no record that the video alleged to exist was ever entered into evidence or viewed by Irvin";
• "Irvin at no time attempted to interview [Plaintiff] to determine if [Plaintiff] had other law enforcement employment that would afford him a law enforcement badge";
• "Irvin falsely stated in his affidavit that [Plaintiff] 'presented a law enforcement badge,'" which "was a conclusion, not a fact";
• "Irvin did not have the object presented in evidence, therefore, he could not state as a fact that the object was a badge, much less that it was a law enforcement badge"; and
• "Irvin obtained the City warrant at the request of Brown without specific factual allegations concerning the alleged offen[s]e."
With respect to Plaintiff's assertion that Irvin did not conduct interviews or obtain witness statements [Doc. 1-1 at 18 ¶¶ 61, 63], as noted above, law enforcement officers are not required to conduct exhaustive investigations to establish probable cause, see, e.g., McKinney, 431 F.3d at 418-19; Wadkins, 214 F.3d at 543; Torchinsky, 942 F.2d at 264. And, as noted above, Plaintiff's assertion that Irvin presented conclusions instead of facts [Doc. 1-1 at 18 ¶ 66] fails to allege that he made material false statements or omitted material facts. Also, as noted above, to have probable cause, an officer need not possess evidence sufficient to convict, Porterfield, 156 F.3d at 569, but only facts and circumstances sufficient to warrant a prudent person to believe that the suspect has committed an offense, Michigan, 443 U.S. at 37. Thus, Plaintiff's assertions that the video and object were not entered into evidence [Doc. 1-1 at 18 ¶¶ 62, 67] do not allege that Irvin made a material false statement or omitted material facts. Finally, Plaintiff's assertion that "Irvin willingly chose to intentionally ignore the conjunctive 'and'" and failed to allege a required element of the offense [id. at 17-18 ¶ 58] likewise does not allege that Irvin omitted material facts that, had they been included, would have negated a finding of probable cause. Moreover, the statute does not provide that, to violate the statute, the person must attempt to arrest or detain a person or search a building or automobile. As stated above, it provides that a person violates the statute also by "in any way impersonat[ing] a law enforcement officer or act[ing] in accordance with the authority commonly given to such officers." S.C. Code Ann. § 16-17-720; see State v. Fischer, 242 S.E.2d 437, 438-39 (S.C. 1978) (affirming a conviction for impersonating a law-enforcement officer where the defendant represented to a deputy sheriff that he was a town police officer "to gain the benefit of avoiding or diminishing the consequences of an investigation or possible arrest, and to influence [the deputy sheriff] to abandon his investigation").
Based on the above, the Complaint fails to allege that Irvin "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, 475 F.3d at 627. Thus, Plaintiff has failed to allege that he was seized pursuant to an arrest warrant without probable cause and has failed to state a claim that his Fourth Amendment rights were violated with respect to the City Warrant. Because Plaintiff has failed to state a claim that his Fourth Amendment rights were violated with respect to either warrant, his federal claims for false arrest/malicious prosecution, false imprisonment, and abuse of process should be dismissed.
To the extent Plaintiff attempts to assert that the impersonating-a-law-enforcement-officer statute is unconstitutional [see Doc. 47 at 5-6], Plaintiff did not raise this claim in his Complaint. Therefore, the claim is not properly before the Court. See Nix v. McCabe Trotter & Beverly PC, No. 2:18-1360-DCC-BM, 2018 WL 6112991, at *4 n.8 (D.S.C. Sept. 10, 2018) (collecting cases noting that a plaintiff may not assert new claims in opposition to a motion to dismiss), Report and Recommendation adopted by 2018 WL 5263276 (D.S.C. Oct. 23, 2018).
Moreover, so long as probable cause existed for one of the warrants, Plaintiff "has no cognizable Fourth Amendment claims associated with" the other warrant. Smith v. McCluskey, 126 F. App'x 89, 93 (4th Cir. 2005) (holding that when the plaintiff was arrested for two offenses and later acquitted of both charges, the fact that the officer had probable cause to believe that the plaintiff had committed one of the offenses precluded any Fourth Amendment claim for false arrest, warrantless arrest, or malicious prosecution as to the second charge).
Because Plaintiff has failed to state a claim that his constitutional rights were violated, the individual City Defendants and individual Sheriff's Office Defendants are entitled to qualified immunity as to the § 1983 claims against them in their individual capacities. The Court declines to address the other arguments raised in the motions to dismiss.
Failure-to-Supervise Claim
Plaintiff's failure-to-supervise claim "require[s] a predicate constitutional violation to proceed[ because] 'supervisors and municipalities cannot be liable under § 1983 without some predicate "constitutional injury at the hands of the individual [state] officer," at least in suits for damages.'" Evans, 703 F.3d at 654 (last alteration in original) (quoting Waybright v. Frederick Cty., 528 F.3d 199, 203 (4th Cir. 2008)). Because, as discussed above, Plaintiff has failed to state predicate § 1983 claims against the individual officers, Plaintiff has failed to state a failure-to-supervise claim. See Luckett v. Simon, No. 0:13-2115-CMC-PJG, 2015 WL 3853088, at *4 (D.S.C. June 19, 2015) (stating that "no actionable claim against a supervisor can exist without a constitutional violation committed by an employee").
Civil Conspiracy Claim
Plaintiff's responses in opposition to the motions to dismiss fail to address the civil conspiracy claim. [See Docs. 46; 47; 48.] Accordingly, Defendants argue Plaintiff has abandoned this claim. [Docs. 50 at 4-5; 52 at 6-7]; see Ferdinand-Davenport v. Children's Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) ("By her failure to respond to this argument" in a motion to dismiss, "the plaintiff abandons [her] claim."), cited in Doe v. Berkeley Cty. Sch. Dist., No. 2:13-cv-3529-PMD, 2015 WL 7722425, at *3 n.1 (D.S.C. Nov. 30, 2015). However, even if Plaintiff had not abandoned this claim, it would be subject to dismissal.
To allege a civil conspiracy under § 1983, a plaintiff is required to demonstrate that defendants acted jointly and some overt act was done in furtherance of the conspiracy, which denied the plaintiff his constitutional right. Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). Because Plaintiff has not stated a claim that his constitutional rights were violated, he has not stated a valid claim of conspiracy to violate his constitutional rights. See Lilly v. Knox, No. 2:06-1138-JFA-RSC, 2007 WL 1146344, at *5 (D.S.C. Apr. 10, 2007) (recommending that a § 1983 civil conspiracy claim be dismissed because the plaintiff had not stated a valid claim of false arrest or malicious prosecution). Thus, Plaintiff's claim of civil conspiracy under § 1983 should be dismissed for failure to state a claim.
State Claims
Plaintiff's state law claims could 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), however, 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 Plaintiff's 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. 1-1 at 12-13 ¶¶ 1-11 (failing to allege the citizenship of numerous Defendants)]; see also 28 U.S.C. § 1332. Further, as stated, the City Defendants removed the action to this Court based solely on federal question jurisdiction. [Doc. 1.] Indeed, the case could not have been removed based on diversity jurisdiction because the Complaint alleges that at least one Defendant—Phalen—is a citizen of South Carolina [Doc. 1-1 at 13 ¶ 10], and under 28 U.S.C. § 1441(b)(2), an action may not be removed on the basis of diversity jurisdiction if any defendant is a citizen of the forum state.
In the instant case, remand of the state law claims is appropriate in light of the Shanaghan factors. The case originated in state court and, thus, Plaintiff would not have to file a new action. Moreover, the remaining claims present state law questions. Based on these factors, the Court recommends that the district judge decline to exercise supplemental jurisdiction over Plaintiff's state law claims in this case.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that
• the Silverleaf Defendants' motion to dismiss [Doc. 9] be GRANTED with respect to the federal claims;Counsel for the City Defendants shall advise the Court in writing within the time period for filing objections to this Report and Recommendation (1) whether or not counsel will accept service of process on behalf of Lawson or (2) if counsel will not accept service, confirm the address where service can be completed pursuant to Rule 4.
• the City Defendants' motion to dismiss [Doc. 12] be DENIED with respect to their request that Lawson be dismissed pursuant to Rule 12(b)(5) but GRANTED with respect to the federal claims;
• the Sheriff's Office Defendants' motion to dismiss [Doc. 26] be GRANTED with respect to the federal claims; and
• the action be REMANDED to the state court to address Plaintiff's remaining claims.
Plaintiff has requested that, if the Court determines the Complaint fails to state a claim, he be granted leave to amend his Complaint. [Docs. 46 at 3, 20; 47 at 3, 17; 48 at 3, 9.] Although the text of Rule 15(a)(2) requires that the Court "freely give leave [to amend] when justice so requires," Fed. R. Civ. P. 15(a)(2), "a district court may deny leave to amend if the amendment 'would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile,'" United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013) (quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc)). Here, Plaintiff has not provided a proposed amended complaint for the Court or Defendants' consideration and review, nor has he indicated what additional factual allegations might be contained in an amended complaint. Therefore, the record before the Court contains nothing on which the undersigned could make a recommendation with respect to whether Plaintiff should be allowed to amend his Complaint.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge April 14, 2020
Greenville, South Carolina