Opinion
C/A 2:19-cv-00902-RMG-MHC
07-30-2021
James Douglas Wolfe, Plaintiff, v. City of North Charleston; Jerry Jellico, individually and/or in his official capacity as an agent of the City of North Charleston; Jennifer Butler, individually and/or in his official capacity as an agent of the City of North Charleston; Charles Benton, individually and/or in his official capacity as an agent of the City of North Charleston; and Robert E. Stone, individually and/or in his official capacity as an agent of the City of North Charleston, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Molly H. Cherry United States Magistrate Judge
Plaintiff, through counsel, filed this civil rights action, alleging various federal and state claims arising from his arrest for unlawful conduct towards a child, and infliction or allowing infliction of great bodily injury on a child. Before the Court is a Motion for Summary Judgment filed by Defendants, ECF No. 97, and a Motion to Strike filed by Plaintiff, ECF No. 101. The Motions have been fully briefed and are ripe for review, and a hearing was held on both Motions. See ECF Nos. 100, 109, 110, 111, 116, 118 & 121.
These Motions are before the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), for a Report and Recommendation. Having reviewed the record presented and the applicable law, and with the benefit of oral argument from the parties, the undersigned recommends that Defendants' Motion for Summary Judgment be granted, and Plaintiff's Motion to Strike be granted, in part, and denied, in part.
Plaintiff argues that Defendants have submitted “irrelevant, incompetent, and otherwise inadmissible documents” in support of their Motion for Summary Judgment and has submitted a Motion to Strike those exhibits from the Court's consideration. ECF No. 100 at 9. Plaintiff's Motion to Strike is addressed in detail below.
This matter arises out of Plaintiff's arrest in 2016 for unlawful conduct towards a child and infliction or allowing infliction of great bodily injury on a child. ECF No. 55. On the night of March 23, 2016, Ashley Stanley (“Stanley”) arrived at Summerville Medical Center with her eightweek-old daughter, E.W., for treatment of a busted lip. (Wolfe Dep. 62:18-64:8, ECF No. 97-2). Doctors examining E.W. discovered other injuries on the infant, including bruising on E.W.'s face, back, and trunk and fractured ribs of different ages and stages of healing. (Trial Tr. 216, ECF No. 55-3). Summerville Medical Center's Dr. Adam Barouh contacted the North Charleston Police Department, explaining at trial that the injuries sustained by E.W. were nonaccidental such that, as a mandatory reporter, he was required to contact law enforcement, as well as the Department of Social Services. (Trial Tr. 223-24, ECF No. 55-3). Detectives Charles Benton, Jerry Jellico and Jennifer Butler responded to the call from the medical center. (Benton Aff., ECF No. 97-15; Butler Aff. ¶ 4, ECF No. 97-21). E.W. was transported to MUSC for further treatment, and Detectives Benton, Jellico, and Butler took E.W.'s mother, Stanley, to City Hall. (Incident Report, ECF No. 97-4; Butler Aff. ¶¶ 5, 6, ECF No. 97-21).
Doctors at MUSC found more injuries to the infant, including more bruising, 16 new and old rib fractures, fractures to E.W.'s right clavicle, right scapula, L4 spinal vertebra, left pelvis, right pelvis, right fibula, right femur, and right tibia, and internal bleeding in her spinal cord, brain, and left lung. (MUSC Injury Chart, Ex. 4, ECF No. 97-5; Ex. 2, ECF No. 97-3).
In her interview, Stanley told officers that E.W.'s father, Plaintiff James Wolfe, was with E.W. when the injuries occurred, that Plaintiff dropped E.W. to the floor two days before, and that Plaintiff admitted to hitting E.W. on the door. (Ex. 6, Stanley Interview, 2:07 a.m., 2:22 a.m., 2:23 a.m., ECF No. 97-7). Stanley also stated that E.W. “screams bloody murder when she's with [Plaintiff]” and that she saw multiple suspicious incidents between Plaintiff and E.W. (Id. at 2:18 a.m., 2:11 a.m., ECF No. 97-7). Stanley also told officers that Plaintiff would “massage” E.W. to try to stop her crying and that Stanley heard “cracks” coming from E.W.'s body. (Incident Report, ECF No. 97-4; Benton Aff., ECF No. 97-15).
Detective Benton and other officers went to Plaintiff's home after Stanley informed them that he was at home with their other daughter, one-and-a-half-year-old A.W. (Benton Aff., ECF No. 97-15). After the officers spoke to Plaintiff at the home and took photographs, Plaintiff agreed to be interviewed at City Hall. (Id; Incident Report, ECF No. 97-4).
Detectives Benton and Jellico interviewed Plaintiff, who admitted to squeezing E.W., tossing her onto the couch, hitting her head on a doorknob, and sitting on her leg. (Ex. 7, Wolfe Interview, 3:25 a.m., 3:26 a.m., 3:45 a.m., ECF No. 97-8). Plaintiff told officers, “I'm sorry for hurting [E.W.], man, I didn't mean to. I didn't mean to. I didn't mean to cause that pain on her. I don't know...I don't know what's wrong with me.” (Id. at 3:56 a.m., ECF No. 97-8). “I have been feeling short tempered. I have been feeling like this for a while man..I don't know why I did what happened to her. I didn't mean for that to happen.” (3:59 a.m.). Plaintiff also told officers that he had probably been too rough with E.W. (3:39 a.m.). Plaintiff stated, “I will tell you that I did it, I will take full blame, but I did not mean to do it.” (3:18 a.m.). Regarding E.W.'s mother, Stanley, Plaintiff said that “she is the best mother I could ever ask for. I couldn't ask for a better mother.” (3:47 a.m.).
Near the end of the interview, Plaintiff asked how to fix the situation and detectives told him to take ownership, to which Plaintiff replied, “I just told you, I own up it.” (4:05 a.m.). Throughout the interview, Plaintiff did not indicate that anyone else, including Stanley, was responsible for E.W.'s injuries. Plaintiff was then arrested for a violation of S.C. Code § 63-5-70 (Unlawful Conduct Toward a Child) and taken to the Charleston County Detention Center to await a bond hearing. (Benton Aff., ECF No. 97-15; Ex. 1, Probable Cause Aff., ECF No. 55-1).
Former Defendant Robert E. Stone prepared the probable cause affidavit used to obtain the warrant for Plaintiff s arrest. Id. The affidavit states, “[Plaintiff] admitted to throwing the child, excessively squeezing the child, dropping the child, and causing at least one impact injury to the child. These admissions are consistent with the injuries reported by the examing [sic] medical personell. [sic].” Id. On March 28, 2016, a family court judge ordered E.W. and A.W. to be taken into emergency protective custody. (Ex. 11, ECF No. 97-12). Another family court judge terminated Plaintiff s parental rights on June 10, 2016. (Ex. 12, ECF No. 97-13).
Defendant Stone was dismissed from this action on September 24, 2020. ECF No. 89.
Plaintiff's Motion to Strike Exhibits 11 and 12 is addressed below.
On April 11, 2016, Detective Jellico prepared an affidavit to obtain an arrest warrant for Plaintiff for a violation of S.C. Code § 16-3-95 (Infliction or Allowing Infliction of Great Bodily Injury upon a Child). (Probable Cause Aff., ECF No. 55-2). This affidavit contained the same statement quoted above from the March 23, 2016 affidavit prepared by former Defendant Stone. Id. The April 11 warrant was signed by Judge Coleman and served on Plaintiff in the detention center. Id.
Between March 23 and April 11, Detective Jellico received new information from MUSC about the severity of E.W.'s injuries. (Jellico Dep. 47:10-48:13, ECF No. 100-1). Detective Jellico testified at trial that he “made a determination that there was no way that [Stanley] could not have known [about E.W.'s injuries] and she failed to protect E.W.” (Trial Tr. 176:22-25, ECF No. 553). Detective Jellico prepared a probable cause affidavit for Ashley Stanley for Infliction or Allowing Infliction of Great Bodily Injury upon a child. (Id.; Trial Tr. 176:20-25, ECF No. 55-3). Ashley Stanley was arrested around April 11, 2016. (Ex. 9, Warrant, ECF No. 97-10).
In August 2016, the Charleston County Grand Jury indicted Plaintiff for Unlawful Conduct Towards a Child and Inflicting Great Bodily Injury upon a Child. (August 2016 Indictment, ECF No. 63-2). On November 7, 2017, the Charleston County Grand Jury indicted Plaintiff for Unlawful Conduct Towards a Child (November 2017 Indictment, ECF No. 77-1). The indictments indicate the only grand jury witness was the “North Charleston Police Department.” Id.
Plaintiff's trial occurred on March 19-22, 2018. At trial, Detective Jellico testified that he believed at the time of Plaintiff's interview that Plaintiff's excuses were enough to lock him up. (Trial Tr. 181:11-17, ECF No. 55-3). Detective Jellico also testified that tossing E.W. on the couch “was reckless, and any reasonable person, including a father, would know tossing a child that's eight weeks old on to a couch could break their neck.” (Id. at 183:7-10). Jellico stated that he did not believe this action would result in broken ribs unless the child “would have bounced off and hit something else or whatever.” (Id. at 183:12-13). Jellico stated at trial that based on the interview with Plaintiff, he believed that “I had my guy. I do have my guy.. ..The interview can speak for itself.” (Id. at 193:4-14).
Regarding Plaintiff's arrest following the interview, Jellico also stated that “[w]hat [Plaintiff] was saying in the interview did not match up with the injuries of the child, but he was saying that he injured the child.” (Id. at 190:17-191:5). Jellico testified that in the interview with Plaintiff, every time the detectives would “bring something up [Plaintiff] would add a different little twist to the thing.” (Id. at 191:13-16).
At trial, Dr. Barouh testified that E.W.'s lip injury did not appear to have been caused by a fall. (Trial Tr. 218:11-219:9, 224:1-6, ECF No. 55-3). Dr. Barouh also testified that he explained his observations to law enforcement upon their arrival. (Trial Tr. 226:1-6, ECF No. 55-3). These observations at the time law enforcement arrived at the hospital included the results of the x-rays indicating multiple fractures in different stages of healing, which is what prompted Dr. Barouh to contact the police. (Trial Tr. 158, 215-17, 223-24, ECF No. 55-3).
Dr. Michelle Amaya testified at trial that E.W.'s broken bones and brain injury would not result from an accidental drop. (Trial Tr. 362:16-21, ECF No. 55-3). Dr. Anil Rao testified that the nature of E.W.'s rib fractures made it appear that they were inflicted, not accidental. (Trial Tr. 297:10-14, 315:8-20, ECF No. 55-3). Dr. Wilbur Smith also testified that the rib fractures were inconsistent with dropping an infant and that squeezing an infant could cause compression-type rib fractures. (Trial Tr. 417:5-418:14, ECF No. 55-3).
The state trial judge denied Plaintiff's motion for directed verdict, stating “[t]he discussions by Mr. Wolfe in his statement clearly show some evasiveness, clearly show some changing which a jury could infer he's relinquishing or releasing some information but not all.” (Ex. 19, Trial. Tr. 390:2-10, 392:7-14, ECF No. 97-20). Plaintiff was not convicted by the jury on either charge. (Trial Tr. 612-13, ECF No. 55-3).
Thereafter, Plaintiff filed this action. His Amended Complaint asserts federal claims, pursuant to 42 U.S.C. § 1983, against all Defendants for violations of his Fourth, Fifth, and Fourteenth Amendment rights. ECF No. 55 at 7-11. Plaintiff also alleges a state law claim of negligence/gross negligence/recklessness/wantonness against the City of North Charleston. Id. at 11-12.
II. MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed, and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
A. First Cause of Action against the Individual Defendants, 42 U.S.C. § 1983
To establish a cause of action under 42 U.S.C. § 1983, Plaintiff must show: (1) the violation of a right protected by the Constitution or laws of the United States, and (2) that the defendant was acting under color of law. West v. Atkins, 487 U.S. 42, 48 (1988); Mallory v. Holdorf, No. 3:11-03295-MBS, 2012 WL 4479070, at *4 (D.S.C. Sept. 28, 2012) (explaining that “42 U.S.C. § 1983 is the vehicle by which individuals make legal claims for violations of their federal rights”).
In his First Cause of Action, brought pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Defendants Jellico, Butler, and Benton acted under color of state law to deprive him of “certain constitutionally protected rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of South Carolina, including but not limited to: 1) due process of law; 2) the right to be free from unreasonable seizures; and 3) the right to care, custody, and management of one's child.” ECF No. 55 at 8 ¶ 23. Specifically, Plaintiff alleges that that all three individual Defendants violated his constitutional rights by making material false statements and omitting material facts in the arrest warrant affidavits dated March 23, 2016, and April 11, 2016. Id. at ¶¶ 20-21. He also asserts that Defendant Jellico “forced Wolfe to return to the interview room after he had stated he did not want to continue the interview, despite not being under arrest at the time.” Id. at ¶ 22.
In their Motion for Summary Judgment, Defendants Jellico, Butler, and Benton assert that they are entitled to summary judgment because there was no violation of Plaintiff's civil rights. The undersigned agrees.
1. Defendant Butler Should Be Dismissed from the Case.
It is undisputed that Defendant Butler did not execute the arrest warrants at issue in this case or provide any information to be included in them. At the hearing on the outstanding Motions, Plaintiff's counsel agreed and conceded that Defendant Butler should be dismissed from this case. Accordingly, the undersigned recommends dismissing Defendant Butler.
Plaintiff alleges in the Amended Complaint that the affidavit was not prepared exclusively by Jellico but, instead, was prepared collectively by “two or more of the Defendants.” ECF No. 55 at 5 ¶ 15h. However, while Defendant Benton participated in the interview of Plaintiff, there is no evidence before the Court that he prepared or participated in the preparation of the arrest warrant affidavits at issue in this case.
2. Fourth Amendment Claim Against Defendants Jellico and Benton
When an unreasonable seizure, arrest or prosecution is alleged, such a claim is governed by the Fourth Amendment. Mallory, 2012 WL 4479070, at *4 (citing Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996)). Defendants argue that Plaintiff's § 1983 claim is only for false arrest, not malicious prosecution. ECF No. 97-1 at 12. However, allegations that an officer seized a plaintiff “pursuant to legal process that was not supported by probable case and that the criminal proceedings terminated in his favor are sufficient to state a § 1983 malicious prosecution claim alleging a seizure that was violative of the Fourth Amendment.” Brooks, 85 F.3d 178 at 18384. Thus, the allegations in Plaintiff's Amended Complaint support claims under both a “false arrest” and a “malicious prosecution” theory. See id. at 181-82 (difference between false arrest and malicious prosecution).
Claims for false arrest and malicious prosecution require a showing of a lack of “probable cause, ” among other things. See Roberts v. Laurens Cty. Sheriff's Dep't, No. C.A. 605-1221-HMH, 2006 WL 361348, at *3 (D.S.C. Feb. 15, 2006); see also Jackson v. City of Abbeville, 623 S.E.2d 656, 658 (S.C. Ct. App. 2005) (“An essential element in each of [Plaintiff's] causes of action [for false imprisonment, malicious prosecution, and violation of the state constitution] is the lack of probable cause to arrest him.”). Accordingly, Plaintiff's Fourth Amendment claim hinges on whether there was probable cause to arrest him.
The undersigned is not persuaded by Defendants' arguments based on Franks v. Delaware, 438 U.S. 154 (1978), which provides that the “Fourth Amendment requires a hearing to be held at a [criminal] defendants' request ‘where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit . . . if the allegedly false statement is necessary to the finding of probable cause.” See United States v. Robinson, 770 Fed.Appx. 627, 628-29 (4th Cir. 2019) (quoting Franks, 438 U.S. at 155-56). Defendants contend that because Plaintiff did not ultimately challenge the arrest warrant affidavits during his criminal proceeding pursuant to Franks, but instead withdrew the motion before the state court trial judge had an opportunity to deny it, he is precluded from challenging them here. ECF Nos. 97-1 at 8; 110 at 8. Defendants cite to no authority to support this argument, contending there is none because the issue is generally resolved in the criminal case. ECF No. 110 at 8 (arguing that Plaintiff should not be permitted to forum shop). Indeed, the Franks case dealt with a criminal proceeding, not a claim for a violation of civil rights under 42 U.S.C. § 1983. However, regardless of Plaintiff's decision to withdraw his motion in state court, there are innumerable cases allowing a Plaintiff to bring a § 1983 claim based upon lack of probable cause for an arrest. Moreover, according to Plaintiff, he did not know of the alleged falsity of the arrest warrant affidavits until the medical experts testified at trial, ECF No. 100 at 3 ¶ 2, at least suggesting that he could not have challenged that component of probable cause earlier. The undersigned concludes that Plaintiff is not precluded from bringing this action based upon his failure to challenge the arrest warrant affidavit in his state court criminal proceeding.
a. Probable Cause
The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const. amend. IV. To establish a § 1983 claim based on a Fourth Amendment violation for false arrest, false imprisonment or malicious prosecution, a plaintiff must show that a seizure was effected without probable cause. See Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014); Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002); Rogers v. Pendleton, 249 F.3d 294 (4th Cir. 2001); Brooks, 85 F.3d at 183. There is no § 1983 claim for false arrest, false imprisonment or malicious prosecution unless the officer lacked probable cause. See Street v. Surdyka, 492 F.2d 368, 37273 (4th Cir. 1974).
“Probable cause to justify an arrest arises when ‘facts and circumstances within the officer's knowledge . . . 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.'” Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (alterations in original (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). It requires more than bare suspicion, but less than evidence necessary to convict, id., and the determination of whether probable cause exists is reviewed under the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238 (1983); Taylorv. Waters, 81 F.3d 429, 434 (4th Cir. 1996). It is an objective standard of probability that reasonable and prudent persons apply in everyday life. Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017). In making this inquiry, the Court is to consider only the information the officers had at the time of the arrest. Id.
To demonstrate that an officer seized an individual pursuant to an arrest warrant without probable cause, a plaintiff must show that the officer “deliberately or with a reckless disregard for the truth made material false statements in his affidavit or omitted from that affidavit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.” Miller v. Prince George's Cty., 475 F.3d 621, 627 (4th Cir. 2007) (internal quotation marks and citations omitted). To demonstrate a “reckless disregard, ” a plaintiff must show, in light of all of the evidence, that an officer had “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, a plaintiff must establish that the officer failed to inform the magistrate of facts that the officer knew would negate a finding of probable cause. Id. However, allegations of negligence or honest mistake are insufficient. Id. at 627-28. 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 (internal citations & quotation marks omitted). Notably, “[obtaining an arrest warrant does not provide per se evidence” that the warrant was proper or that the officer was objectively reasonable in believing it so. Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991).
Plaintiff contends that there was not probable cause to arrest him and that Defendants “deliberately or with a reckless disregard for the truth made material false statements in the March 23, 2016 and April 11, 2016 affidavits with the intent to make, or with reckless disregard of whether they thereby made these affidavits misleading.” ECF No. 55 at ¶¶ 20, 21 & 23. Specifically, Plaintiff contends that the trial testimony of Defendants Jellico and Benton, combined with the trial testimony of the medical providers, showed that the allegations contained in the arrest warrant affidavits were false, ECF No. 100 at 4, in the following manner: (1) in failing to include an explanation that statements of hearsay declarant Stanley “lacked reliability, veracity and corroboration”; (2) in stating that the alleged admissions of Plaintiff in his interview were “consistent” with the injuries E.W. sustained; and (3) in omitting that the determination of probable cause that Plaintiff committed a crime was based on a “hunch” of Defendant Jellico. ECF No. 100 at 8.
Plaintiff further argues that the probable cause affidavits would need to be revised in the following particulars:
1) Stanley's statements should either be removed completely for lack of evidence of reliability, or they should be qualified with information about the lack of evidence corroborating Stanley and the lack of evidence of her veracity and reliability.
2) The sentence “These admissions are consistent with the injuries reported by the [examining] medical [personnel]” should be removed and replaced with a statement to the effect of: “While these acts are not consistent with the injuries sustained by E.W., I believe he did commit acts that caused E.W.'s injuries based on a hunch Wolfe was being dishonest.”ECF No. 100 at 13-14. According to Plaintiff, with these amendments, the allegations of the March 23, 2016, and April 11, 2016, affidavits are supported by only a hunch and the uncorroborated, unreliable hearsay testimony of the other accused, Stanley. Plaintiff argues that viewing the facts in the light most favorable to him, a reasonable jury, applying the “totality of the circumstances” test, could find there was no probable cause to arrest him. The undersigned disagrees.
i. No Material False Statements or Omissions in the Affidavits
As an initial matter, no reasonable jury could conclude that the two affidavits at issue contain material false statements or omit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading. See Miller, 475 F.3d at 627.
The affidavit states, “[Plaintiff] admitted to throwing the child, excessively squeezing the child, dropping the child, and causing at least one impact injury to the child. These admissions are consistent with the injuries reported by the examing [sic] medical personell. [sic].” ECF No. 55-1. Plaintiff does not take issue with the first sentence. Instead, he argues that the last sentence-i.e, . that Plaintiff's admissions are “consistent” with the injuries reported by the examining medical personnel-is false because the medical personnel testified at trial that the injuries suffered by E.W. could not have been caused by squeezing or dropping the child. ECF No. 100 at 12. Plaintiff ignores, however, that the probable cause assessment is made at the time the officer applies for the warrant, and the expert medical testimony was elicited two years later at trial. A review of the record reveals no earlier testimony and no earlier opinions about causation or methodology for how the injuries occurred. Nor is there any evidence that, at the time Defendants made the affidavits, they believed anything other than that Plaintiff's admissions were consistent with the reported injuries.
Indeed, the undisputed evidence in this matter shows that Dr. Barouh examined E.W. in the emergency room and observed the following injuries: a laceration to her lip; bruises on her face and head; abrasions on her nose; additional bruises on the body, including four discrete bruises on her lower back; and a clavicular fracture, multiple fractures of the ribs, and a fracture in each leg, with some fractures appearing older than others. ECF No. 55-3 at pp. 212-24. Dr. Barouh determined that the injuries were due to “nonaccidental trauma or child abuse situation.” Id. at p. 224. Dr. Barouh then contacted law enforcement and, once Defendants arrived, he explained to Defendants what he had observed. Id. at pp. 224, 226.
Plaintiff suggests that Dr. Barouh previously explained that the injuries were not consistent with Plaintiff s interview statements; however, there is no support in the record for this suggestion. Dr. Barouh was not aware of Plaintiff s statements at the time he spoke with Defendants Jellico and Butler. More importantly, what Dr. Barouh explained to Defendants was that E.W.'s injuries were not accidental. Indeed, all of the medical personnel agreed that E.W.'s injuries were not accidental.
Detectives Benton and Jellico then interviewed Plaintiff, who admitted to squeezing E.W., tossing her onto the couch, hitting her head on a doorknob, and sitting on her leg. ECF No. 97-8. Plaintiff told officers, “I'm sorry for hurting [E.W.], man, I didn't mean to. I didn't mean to. I didn't mean to cause that pain on her. I don't know... I don't know what's wrong with me.” Id. “I have been feeling short tempered . I have been feeling like this for a while man.. I don't know why I did what happened to her. I didn't mean for that to happen.” (3:59 a.m.). Plaintiff also told officers that he had probably been too rough with E.W. (3:39 a.m.). Plaintiff stated, “I will tell you that I did it, I will take full blame, but I did not mean to do it.” (3:18 a.m.). Regarding E.W.'s mother, Stanley, Plaintiff said that “she is the best mother I could ever ask for. I couldn't ask for a better mother.” (3:47 a.m.). Near the end of the interview, Plaintiff asked how to fix the situation and detectives told him to take ownership, to which Plaintiff replied, “I just told you, I own up it.” (4:05 a.m.). Throughout the interview, Plaintiff did not indicate that anyone else, including Stanley, was responsible for E.W.'s injuries.
Thus, at the time the arrest warrant affidavits were made, Defendants had been told by an examining physician that the baby had sustained multiple injuries caused by nonaccidental trauma or child abuse, including bruises to the face, head, and torso, as well as multiple broken ribs and leg bones. Defendants Jellico and Butler had also interviewed Plaintiff, during which time he admitted to squeezing E.W., tossing her onto the couch, hitting her head on a doorknob, and sitting on her leg; apologized for hurting her; repeatedly stated that he did it and took full responsibility for it; and said that Stanley was the best mother. On this record, no reasonable jury could conclude that the statement in the affidavits that Plaintiff's admissions were “consistent with the injuries reported by the examing [sic] medical personell” was a false statement.
Plaintiff argues that Detective Jellico knew that the injuries were not consistent with what Plaintiff explained had happened, because Detective Jellico specifically testified that he did not believe that tossing E.W. would result in broken ribs unless the child “would have bounced off and hit something else or whatever.” (Trial Tr. at 183:12-13; ECF No. 55-3). He notes that Detective Jellico also testified that “[w]hat [Plaintiff] was saying in the interview did not match up with the injuries of the child, but he was saying that he injured the child.” However, this testimony is in accord with the statement in the affidavit that Plaintiff's admissions are “consistent” with the injuries reported by the examining medical personnel, where the medical personnel indicated that the injuries at issue were not accidental.
Additionally, there is nothing in the record to suggest that the veracity of Stanley was at issue at the time the warrants were issued. Plaintiff suggests that Stanley's veracity should have been questioned because Stanley stood accused of a felony arising from E.W.'s injuries, and one of E.W.'s treating physicians described Stanley as unsurprised by E.W.'s injuries. ECF No. 100 at 12-13 (citing United States v. Lull, 824 F.3d 109, 117 (4th Cir. 2016)). However, the case upon which Plaintiff relies involved an informant, not a witness. More importantly, the Lull case did not involve an instance where the only two witnesses agreed as to the perpetrator. The undisputed evidence shows that at the time the arrest affidavit was made, Plaintiff had told Defendants that Stanley was the best mother and that he had been too rough with E.W. On this record, no reasonable jury could conclude that Defendants omitted material information that would negate a finding of probable cause by not including a statement that Stanley “lacked reliability, veracity and corroboration.” Indeed, Plaintiff's own statements to Defendants corroborated Stanley.
For the foregoing reasons, the undersigned concludes that no reasonable jury could conclude that Defendants “deliberately or with a reckless disregard for the truth made material false statements in [the] 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.” See Miller, 475 F.3d at 627 (internal citation and quotation marks omitted).
ii. Defendants Had Probable Cause to Arrest Plaintiff
Even if the Court assumes the statements in the affidavit were false, material and misleading, the evidence submitted in this case belies Plaintiff's argument that there was not probable cause for his arrest. Specifically, the evidence indicates that, at the time the arrest warrants were issued, Plaintiff and Stanley were the parents of the child; there was no evidence anyone else had been with the children at the time of the injury that precipitated the visit to Summerville Medical Center; Plaintiff and Stanley both indicated Plaintiff had injured the child; medical personnel suspected abuse and contacted law enforcement; Plaintiff did not blame anyone else for E.W.'s injuries; and Plaintiff expressed sorrow for injuring his child. Although Plaintiff argues that no further investigation was conducted between March and April, he does not identify how any further investigation would have altered the aforementioned facts.
“A finding of probable cause as a matter of law based on the facts and circumstances within the knowledge of the arresting officers is a legal conclusion.” Bryant v. Town of Bluffton, No. 9:17-CV-0414-DCN, 2019 WL 4439435, at *5 (D.S.C. Sept. 17, 2019). Legal conclusions are within the sole purview of the court and are to be made without deference to any party. Id. Drawing the factual inferences most favorably to Plaintiff, the legal conclusion to be made from the facts and circumstances available to the arresting officers is that Defendants Jellico and Benton were justified in their determination of probable cause. Summary judgment is appropriate because Plaintiff has not presented evidence from which a reasonable jury could find to the contrary.
In reaching this conclusion, the undersigned does not rely on the arrest warrants or affidavits that were obtained to arrest Plaintiff. Generally, an arrest warrant issued by a neutral and detached magistrate would insulate an officer from a false arrest claim. See Porterfield, 156 F.3d at 568 (stating that an arrest made pursuant to a facially valid warrant will not support a claim for false arrest under the Fourth Amendment) (citing Brooks, 85 F.3d 178). However, for all the reasons detailed above, even without the insulation generally provided by a warrant, the undersigned concludes that Defendants had probable cause to arrest Plaintiff. See Brown, 278 F.3d at 367 (stating that to establish a claim for false arrest under the Fourth Amendment, a plaintiff needs to show that the officers decided to arrest him without probable cause).
iii. Directed Verdict Denial
Moreover, the undersigned notes that there is evidence in the record of at least one other relevant legal determination confirming the validity of the arrest and prosecution of Plaintiff, not purportedly tainted by the alleged false affidavits, specifically the trial judge's denial of a directed verdict. Indeed, the testimony by the medical experts, upon which Plaintiff relies, came out at trial. Plaintiff's criminal defense attorney argued a motion for directed verdict, yet the state criminal trial judge denied it, finding there was sufficient evidence to proceed to the jury. ECF No. 97-20. Under the circumstances, any allegedly improper taint by the arrest warrant affidavit in the grand jury indictment was cured at this time. See Scott v. Town of Kingstree, C/A No. 4:16-2901-CMC, 2018 WL 3583341, at *3 (D.S.C. July 26, 2018). As Plaintiff has failed to raise a genuine issue of material fact regarding the impact of the directed verdict, summary judgment for Defendants is appropriate as to Plaintiff's § 1983 claim for a Fourth Amendment violation.
Defendants argue that additional legal determinations support a finding that probable cause existed for Plaintiff s arrest and prosecution, including the (a) finding of probable cause at Plaintiff s preliminary hearing, (b) return of the indictments by the County Grand Jury for the charges upon which Plaintiff was originally arrested, (c) the solicitor's decision to prosecute the case, and (d) the Family Court order terminating Plaintiff s parental rights. See, e.g., United States v. Soriano-Jarquin, 492 F.3d 495, 502 (4th Cir. 2007) (“This court has long held that the probable cause requirement may be satisfied either by a preliminary hearing or by indictment by a grand jury.”). Plaintiff argues that these criminal proceedings were tainted by the submission of the false arrest warrant affidavits and, therefore, do not foreclose his right to pursue a Fourth Amendment claim and that the Family Court order should be stricken. With respect to the grand jury proceeding, the undersigned did not allow discovery into those records, ECF No. 88, and the only evidence in the record related to the grand jury indicates that only the North Charleston Police Department testified at the proceeding. ECF No. 97-14. It is fundamentally unfair to preclude Plaintiff access and then grant summary judgment for failure to prove the testimony before the grand jury. Accordingly, the undersigned has not considered the grand jury's indictments as additional evidence of probable cause. The undersigned notes, however, that Plaintiff was represented by counsel at the time of the preliminary hearing and had the opportunity to present evidence, even to contest Stanley's credibility. Plaintiff argues he did not know about the medical examiner testimony until trial; however, he was aware of Stanley and had the ability to attack her credibility, as well as the ability to make whatever other arguments that he did not commit the crime. See State v. Cunningham, 268 S.E.2d 289, 291 (S.C. 1980) (“The purpose of the preliminary hearing is to establish that probable cause exists to continue the criminal process.”). Moreover, the solicitor in the case made a decision to prosecute the case. Cf. McKinney v. Richland Cnty. Sheriff's Dept., 431 F.3d 415, 419 (4th Cir. 2005) (recognizing that “[both a prosecutor and a neutral and detached magistrate independently reviewed the evidence and concluded there was probable cause” such that a “reasonable officer would not second-guess these determinations unless probable cause was plainly lacking, which it was not”). Nevertheless, the undersigned did not and need not rely on the preliminary hearing or the solicitor's independent decision, either, in making recommendations in this matter. Moreover, for the reasons set forth in footnote 10, the undersigned did not rely upon the Family Court order, either.
3. Claim Against Defendants Jellico and Benton Based on the Fifth and Fourteenth Amendments
Plaintiff also generally references the Fifth and Fourteenth Amendments with regard to his claim under § 1983. To prove a claim for violation of the Fifth Amendment right against selfincrimination, Plaintiff must show he “has been compelled to be a witness against himself in a criminal case.” Bodle v. Linhardt, No. 12-2425, 2013 WL 2481250, at *7 (M.D. Pa. June 10, 2013) (quoting Chavez v. Martinez, 538 U.S. 760, 770 (2003)). Plaintiff has not set forth allegations in the Complaint supporting a Fifth Amendment claim. Moreover, neither party has addressed a claim under the Fifth Amendment, nor is the undersigned aware of any evidence supporting one.
With regard to Plaintiff's claims under the Fourteenth Amendment, the United States Supreme Court has explained that “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S 266, 273 (1994) (internal quotation marks omitted) (citing Graham v. Connor, 490 U.S. 386 (1989)). Accordingly, “[t]he Due Process Clause does not constitute a catch-all provision that provides a remedy whenever a state actor causes harm.” Evans v. Chalmers, 703 F.3d 636, 646 n.2 (4th Cir. 2012). “Because the Fourth Amendment provides an explicit textual source for § 1983 malicious prosecution claims, the Fourteenth Amendment provides no alternative basis for those claims.” Id.; see Zelarno v. Taylor, No. 092860, 2011 WL 3794143, at *3 (D.S.C. Aug. 24, 2011) (explaining that “the Fourteenth Amendment essentially extends the federal right of due process, as provided in the Fourth Amendment, to state and local levels of government”); see also Safar v. Tingle, 859 F.3d 241, 245 (4th Cir. 2017) (“Compared to the more generalized notion of due process, the Fourth Amendment provides an explicit textual source of constitutional protection against unreasonable seizures and arrests, and defines the process that is due for seizures of persons or property in criminal cases.”) (internal quotation marks and citations omitted).
For the foregoing reasons, the undersigned finds that Plaintiff has not established a cognizable § 1983 claim based on violations of the Fifth or Fourteenth Amendment. Accordingly, the undersigned recommends granting summary judgment in Defendants' favor on Plaintiffs First Cause of Action.
4. Qualified Immunity
The individual Defendants are also entitled to qualified immunity from Plaintiff's claim. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendants Benton, Jellico and Butler. The Supreme Court has 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 v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth in detail above, Plaintiff has failed to establish a genuine issue of material fact on any of his allegations of constitutional violations. Because none of the individual Defendants violated Plaintiff's constitutional rights, they are also shielded from liability by qualified immunity.
B. Second Cause of Action against Defendant City of North Charleston, 42 U.S.C. § 1983/ Monell v. DSS , 436 U.S. 658 (1978)
Plaintiff next brings a claim against the City of North Charleston under § 1983 for municipal liability. Specifically, the Amended Complaint alleges that the City of North Charleston “allow[ed] its police officers to execute probable cause affidavits that contained materially false information, ” “allow[ed] its police officers to execute probable cause affidavits that omitted material information, ” “allow[ed] its police officers without personal knowledge to prepare and execute probable cause affidavits on behalf of other officers, ” and “failed to implement policies” to prevent such behavior. ECF No. 55 at 9 ¶ 27.
The City cannot be held responsible solely because Defendants Jellico and Benton are police officers for the City. See Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978) (governmental entity cannot be held liable under § 1983 merely because it employs an alleged tortfeasor). Rather, the City may be held liable under § 1983 for the violation of Plaintiff s constitutional rights “only where the constitutionally offensive actions of city employees are taken in furtherance of some municipal ‘policy or custom.'” Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citing Monell, 436 U.S. at 694); see Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993) (“[A] municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury.”).
As set forth above, there is no constitutional violation as to any of the individual Defendants in this case. Accordingly, there is no basis for holding the City of North Charleston liable pursuant to Monell or the doctrine of supervisory liability. See, e.g., Ryu v. Whitten, 684 Fed.Appx. 308, 311 (4th Cir. 2017) (“[B]ecause there was no Fourth Amendment violation, both Ryu's Fourth Amendment claim against Whitten in his individual capacity and his Monell claim against Warren County fail.”); Peters v. Caplan, 672 Fed.Appx. 327, 328 (4th Cir. 2017) (“Peters has failed to allege a deprivation of constitutional right, so his [Monell] claim against the City must fail as well.”); Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir. 2012) (“Because we hold that all plaintiffs failed to state predicate § 1983 claims against the individual officers, we must also hold that all plaintiffs have failed to state supervisory liability [and] Monell liability . . . claims.”); Wilson v. Flynn, 429 F.3d 465, 469 n.* (4th Cir. 2005) (“The lack of a constitutional violation also disposes of Wilson's claim against the Town of Ayden.”); Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999) (“Appellant's claims against Fairfax County also fail. As there are no underlying constitutional violations by any individual, there can be no municipal liability.”). Thus, Defendant City of North Charleston is entitled to summary judgment on Plaintiff's § 1983 claim.
Moreover, there is no evidence to support a Monell claim against the City of North Charleston based upon its policy to allow hearsay in arrest warrant affidavits. See Monell, 436 U.S. at 692 (“[Section 1983] plainly imposes liability on a government that, under color of some official policy, ‘causes' an employee to violate another's constitutional rights.”) Plaintiff argues that the policies and procedures of the North Charleston Police Department permit the use of hearsay of any degree in probable cause affidavits. ECF No. 100 at 16. While Plaintiff concedes hearsay can be used in probable cause affidavits, he contends it must be accompanied with statements confirming the hearsay declarant's veracity and reliability and that multiple layers of hearsay are impermissible. Id.
As noted above, however, the Lull case upon which Plaintiff relies involves an informant, not witnesses or officers, and the case does not stand for the proposition that there cannot be multiple layers of hearsay in an arrest warrant affidavit. See Lull, 824 F.3d at 117. Moreover, hearsay, even multiple levels of hearsay, is generally permitted in arrest warrant affidavits. See U.S. v. Welebir, 498 F.2d 346, 349 n.2 (4th Cir. 1974); State v. Dunbar, 603 S.E.2d 615, 620 (S.C. Ct. App. 2004).
Nevertheless, according to Plaintiff, this policy affords officers the ability to “wash” false or misleading testimony through multiple witnesses before it is fixed in the probable cause affidavit by the declarant. Even if Plaintiff had established that Defendants violated his constitutional rights by including hearsay in the arrest warrant affidavits for him, he would have established, at best, an isolated incident. “[I]solated incidents” of unconstitutional conduct by subordinate employees are not sufficient to establish a custom or practice for § 1983 purposes. Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir. 2003). “Rather, there must be ‘numerous particular instances' of unconstitutional conduct in order to establish a custom or practice.” Id. (quoting Kopf v. Wing, 942 F.2d 265, 269 (4th Cir.1991)). Under the circumstances and on the record before the Court, Plaintiff has not established a violation of 42 U.S.C. § 1983 by Defendant City of North Charleston.
C. Third Cause of Action against Defendant City of North Charleston: Negligence/Gross Negligence/Recklessness/Wantonness
Plaintiff has alleged a state law tort claim for negligence, gross negligence, willfulness and wantonness against the City of North Charleston pursuant to the South Carolina Tort Claims Act (TCA), § 15-78-10 et seq. ECF No. 55 at 11. The TCA is a limited waiver of governmental immunity. Moore v. Florence Sch. Dist. No. 1, 444 S.E.2d 498, 500 (S.C. 1994); S.C. Code Ann. § 15-78-20(a). The TCA provides that, subject to limitation, a governmental entity is “liable for [its] torts in the same manner and to the same extent as a private individual under like circumstances.” Moore, 444 S.E.2d at 500; S.C. Code Ann. § 15-78-40.
Plaintiff claims that the City of North Charleston is “liable for the acts of its employees, as they were acting within the course and scope of their official duties.” ECF No. 55 at ¶ 33. He specifically argues that the City of North Charleston was negligent for allowing its officers to execute probable cause affidavits that contained material false statements and omitted material information, as well as for failing to implement policies that would prevent such actions and failing to properly train officers on how to prepare probable case affidavits. Id. at ¶ 34.
To maintain an action for negligence, “a plaintiff must show: (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached that duty by a negligent act or omission; (3) the defendant's breach was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damages.” Roddey v. Wal-Mart Stores E., LP, 784 S.E.2d 670, 675 (S.C. 2016) (citation omitted). “Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.” Etheredge v. Richland Sch. Dist. One, 534 S.E.2d 275, 277 (S.C. 2000) (citation omitted). It is the failure to exercise even “slight care.” Id.
Plaintiff's negligence claims against the City of North Charleston hinge on whether there was improper conduct by the individual Defendants, specifically faulty probable cause affidavits. As set forth above, no reasonable jury could find that there were material false statements or omissions in the probable cause affidavits. Accordingly, Plaintiff's claim for negligence fails. Moreover, even if the affidavits at issue were somehow faulty, there was still probable cause for the arrest of Plaintiff and the continued prosecution of the charges against him. The hallmark of a negligence claim is that any breach of duty be the actual and proximate cause of one's injury. See Roddey, 784 S.E.2d at 675. The injury Plaintiff is claiming in this case was caused by an allegedly false arrest and malicious prosecution. Thus, the existence of probable cause for Plaintiff's arrest and prosecution, separate and independent from any alleged falsity in the arrest warrant affidavits, bars any negligence claim based upon the alleged faulty affidavits. Accordingly, the undersigned recommends that summary judgment be granted and the third cause of action be dismissed.
In light of the recommendation for summary judgment, the undersigned declines to address the remaining arguments by the City of North Charleston.
III. MOTION TO STRIKE
Plaintiff moves to strike certain exhibits from Defendants' Motion for Summary Judgment, arguing the evidence is not admissible. ECF No. 101; See Fed.R.Civ.P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact [in a motion for summary judgment] cannot be presented in a form that would be admissible in evidence.”).
A. Exhibits 11 & 12 - Two Family Court Orders
Plaintiff moves to strike two Family Court orders cited by Defendants, ECF 97-12 and 97 13, which this Court previously ordered the South Carolina Department of Social Services to provide, subject to a confidentiality order. ECF No. 24. Defendants submitted at least one of the orders as support for their argument that probable cause existed for Plaintiff's arrest. ECF No. 97-1 at 14-15. Plaintiff argues this evidence invades the province of the jury to determine probable cause in this case and is, thus, inadmissible. ECF No. 101 at 2.
The undersigned notes that the Family Court order at issue contains specific language that the stipulation upon which Defendants are relying shall not “be used against [Plaintiff] in any way in any other Court.” Accordingly, the undersigned did not rely upon that Family Court order in recommending summary judgment.
Plaintiff also contends the admission of these orders would only serve to confuse the jury as they determine whether probable cause to arrest Plaintiff existed. See Fed.R.Evid. 403. A motion to strike pursuant to Fed.R.Evid. 403, on the ground that the probative value of the testimony or report is outweighed by the danger of unfair prejudice or confusion, is not appropriate in the context of summary judgment, where matters are not presented to a jury and the court does not weigh credibility or resolve disputed issues of material fact, except in extraordinary circumstances not present here. Whitney v. Wal-Mart Stores, Inc., No. 03-65-P-H, 2003 WL 22961210 (D. Maine Dec. 16, 2003) (citing Adams v. Ameritech Servs., Inc., 231 F.3d 414, 428 (7th Cir. 2000); Hines v. Consolidated Rail Corp., 926 F.2d 262, 274 (3d Cir. 1991)). The denial of Plaintiff's Motion to Strike on other grounds will not preclude Plaintiff from raising this issue with the trial judge if the case proceeds to trial.
Plaintiff has not cited to any authority for his position that the Family Court orders at issue are inadmissible evidence, other than general law addressing probable cause determinations. The cases cited by Plaintiff do not prohibit, or even address, the admissibility of Family Court orders. There is no basis to strike the Family Court orders from consideration by the Court at the summary judgment stage.
Plaintiff also argues that Defendants' quote from one of the Family Court orders violates the Confidentiality Order entered in this case, ECF No. 101 at 3, such that the quoted language in Defendants' summary judgment memorandum should be stricken. The Court disagrees.
The Confidentiality Order specifically addresses filing confidential materials. ECF No. 42 at 4 ¶ 6. Defendants originally filed redacted versions of the Family Court orders, in compliance with the provisions of the Confidentiality Order. After Plaintiff raised a concern, Defendants removed the redacted versions and submitted the Family Court orders for in camera review. As detailed in this Court's Order on Defendants' Motion to Seal, however, there is no prohibition against referencing the Family Court orders, nor is the language quoted by Defendants confidential, particularly given the allegations in Plaintiff s Complaint, including his claim that part of the injuries he has suffered in this matter are having “his parental rights wrongfully abridged and curtailed.” ECF No. 55 at 7 ¶ 18b.
Plaintiff s Motion to Strike Exhibits 11 and 12 from Defendants' Motion for Summary Judgment, as well as any reference to or quotes from these Exhibits, is denied.
B. Exhibit 17 - Affidavit of Magistrate Judge Priscilla Baldwin
Plaintiff moves to strike the affidavit of retired magistrate judge, Priscilla Baldwin, ECF No. 97-18, who was the magistrate judge who reviewed the March 23, 2016 probable cause affidavit. ECF No. 101 at 3. According to this affidavit, Magistrate Baldwin would have found the March 23, 2016, affidavit would have supported a finding of probable cause, even if certain sentences were removed.
Plaintiff argues that the affidavit is based on conjecture and speculation and does not address adequately the challenges he has raised regarding the issue of probable cause. ECF No. 101 at 4. Plaintiff also argues that this testimony consists solely of opinions on ultimate issues in this case, and, to the extent Magistrate Baldwin is being presented as an expert, this type of testimony is inadmissible. See Brown v. Dennis, No. 3:15-3334-JMC-PJG, 2016 WL 4618892, at *2 (D.S.C. Sept. 6, 2016) (“Courts have frequently found such expert reports or testimony opining as to the law governing the case or containing legal conclusions to be inadmissible under Rule 702 and controlling case law.”); see also Cameron v. City of New York, 598 F.3d 50, 62 (2d Cir. 2010) (“[T]he issue of whether or not probable cause to arrest exists is a legal determination that is not properly the subject of expert opinion testimony.”) (internal quotation marks omitted).
For the reasons set forth in footnote 10, the Court does not address Plaintiff's argument under Fed.R.Evid. 403.
Defendants argue that Magistrate Baldwin is not an expert witness but, instead, as the magistrate judge who made the initial probable cause decision in the underlying case, is a “material” witness who may be called to testify in this case. ECF No. 109 at 2-3 (citing Breslin v. Dickinson Twp., No. 1:09-CV-1396, 2011 WL 3359638, at *3 (M.D. Pa. Aug. 3, 2011)). The Court disagrees.
Magistrate Baldwin made the initial probable case determination with regard to the arrest warrant affidavit in her role as a judge, and she made it based upon the affidavit submitted to her at the time. She has retired from that position and is offering an opinion as to how she would have ruled, had she been presented with a different set of facts. Under these circumstances, this testimony is akin to, if not specifically, expert testimony based upon the experience a judicial officer obtains in making probable cause determinations. This type of testimony is not admissible. See Brown, 2016 WL 4618892, at *2. Accordingly, Plaintiffs Motion to Strike the affidavit of Magistrate Baldwin, ECF No. 97-18, is granted.
C. Exhibit 21 - Affidavit of Lt. Andrew Glover
Plaintiff seeks to strike the affidavit of Lt. Andrew Glover, ECF No. 97-22, on the basis that it seeks to invade the jury's role of determining probable cause. However, as Defendants explain, the affidavit provides testimony by a competent witness to address Plaintiff's allegations pertaining to training and policies within the North Charleston Police Department. ECF No. 109 at 3-4. Plaintiff has not cited to any authority to support striking the affidavit of Lt. Andrew Glover, such that the Motion to Strike this exhibit is denied.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion for Summary Judgment, ECF No. 97, be GRANTED and this action against all Defendants be DISMISSED. It is further ORDERED that Plaintiff's Motion to Strike, ECF No. 101, is GRANTED, in part, and DENIED, in part, as set forth herein.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).