United States District Court, D. South Carolina
Bennett K. Long, Plaintiff,
South Carolina Highway Patrol; Officer Jeremy Pickens; Officer Adam Warren, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
Plaintiff Bennett K. Long, a self-represented litigant, filed this action pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights by the defendants. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the defendants' motion for summary judgment. (ECF No. 42.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Long was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motion. (ECF No. 43.) Long filed a response in opposition to the defendants' motion (ECF No. 46) and the defendants filed a reply (ECF No. 48). Having carefully considered the parties' submissions and the applicable law, the court concludes that the defendants' motion should be granted.
The following facts are either undisputed or taken in the light most favorable to Long. (See generally, Compl., ECF No. 1-3 at 3-4.) Long alleges that he attempted to avoid a driver's license check on December 15, 2011, resulting in a traffic chase by the Highway Patrol. Long claims that Defendants Warren and Pickens, both officers with the Highway Patrol, used excessive force during Long's arrest by shooting into his vehicle multiple times. Long alleges that his vehicle was stopped at the time the shots were fired. When the shooting ended, Long states that he backed away and "took off again." Long alleges that one bullet shattered his left shoulder and another his left middle finger, requiring reconstructive surgery and leaving Long scarred and with limited mobility in those areas. Long alleges that patrol car videos, which were not produced, would have shown that Long was attempting to surrender when the gunshots were fired. Thus, Long asserts that the defendants conspired to conceal their actions. Long seeks formal criminal charges against the defendants, termination of the defendants' jobs, payment of all medical bills, and monetary damages. Long also seeks restoration of his driving privileges in South Carolina.
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Defendants' Motion for Summary Judgment
1. Official Capacity Claims
The defendants assert that Long's claims against them in their official capacities fail as a matter of law because the defendants are immune from suit under the Eleventh Amendment. (ECF No. 42-1 at 10-12.) Long's response in opposition to the defendant's motion does not dispute or address this ground for summary judgment. (ECF No. 46.) The Eleventh Amendment states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Sovereign immunity protects both the State itself and its agencies, divisions, departments, officials, and other "arms of the State." See Will v. Michigan Dep't of State Police, 491 U.S. 58, 70 (1989); see also Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 (1997) ("[I]t has long been settled that the reference [in the Eleventh Amendment] to actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities."). Although a State may waive sovereign immunity, Lapides v. Board of Regents, 535 U.S. 613 (2002), the State of South Carolina has specifically denied this waiver for suit in federal district court. See S.C. Code Ann. § 15-78-20(e).
As arms of the state, the defendants in this case are entitled to sovereign immunity and do not constitute "persons" under § 1983. See Will, 491 U.S. at 70-71. Accordingly, the court concludes that the defendants' motion for summary judgment should be granted as to Long's official capacity claims. Id.; see also Quern v. Jordan, 440 U.S. 332, 343 (1979) (recognizing that Congress did not override ...