United States District Court, District of South Carolina
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
MARY G. LEWIS UNITED STATES DISTRICT JUDGE
This case was filed as a 42 U.S.C. § 1983 action. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Defendants’ motion for summary judgment be granted with respect to Defendant City of Spartanburg (Defendant City) and Defendant Spartanburg City Police Department (Defendant Department), but denied with respect to Defendant Jonathan Lawson (Defendant Lawson). The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on October 2, 2014, and Defendants filed their objections on October 20, 2014. Plaintiff failed to file any objections. Therefore, as to any portion of the Report with which Plaintiff might disagree, “in 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, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee’s note). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).
As detailed in the Report:
Plaintiff filed this § 1983 action alleging an unconstitutional detainment and search of his automobile. On the evening of February 1, 2013, Plaintiff and three companions stopped at the QuikTrip on West Main Street in Spartanburg, South Carolina. While parked, Ty, the cousin of Plaintiff’s friend, approached the car and tried to initiate a fight with Plaintiff. Plaintiff grabbed a metal baton and told Ty to move away from the car. Ty stated, “you gone have to shoot me.” Plaintiff told the driver of the car, “Man bump him let’s go.”
During this exchange, Spartanburg City Police Officer Valentin pulled up to the QuikTrip. Officer Valentin pulled Plaintiff’s car over, drew his gun, and told everyone to exit the car. Plaintiff and his companions got out of the car and were placed in handcuffs. As Plaintiff was being placed in handcuffs, other officers arrived at the scene, including Officer Jonathan Lawson . . . and his police dog, Tinka. Plaintiff advised the officers that he was the owner of the car and that he did not consent to any search. The officers questioned Plaintiff and his companions about the presence of a gun in the car; all denied any knowledge of a gun. Lawson then retrieved Tinka from his patrol car and walked her around to the back door on the passenger’s side of Plaintiff’s car. Lawson commanded Tinka to sit, and she obeyed. Lawson and Tinka began the open air sniff, and Tinka jumped into the open passenger’s side door. The officers claimed Tinka alerted [while inside the car as well as two other times as she walked around the perimeter of the car] and proceeded to search the car, but found no illegal substances or contraband. Plaintiff and his companions were then released.
Report 2-3 (citations omitted) (errors in original documents). Plaintiff seeks both monetary and injunctive relief.
As a preliminary matter, the Court notes that Plaintiff failed to file any objections regarding the Magistrate Judge’s suggestion that Defendants motion for summary judgement as to Defendant City and Defendant Department be granted. Thus, because the Court has satisfied itself that there is no clear error on the face of the record, Diamond, 416 F.3d at 315, the Court will grant Defendants motion as to these two defendants. As such, Defendants’ objections are limited to whether the Court should grant summary judgment as to Defendant Lawson.
First, Defendants object to the Magistrate Judge’s “finding that Defendant Lawson was not entitled to summary judgment because there is a factual dispute as to whether the drug dog, Tinka, was directed into Plaintiff’s vehicle or jumped instinctively.” Objections 1. The Court disagrees with Defendant’s objection.
As stated by Defendants’, “[a] trained canine’s sniff inside of a car after instinctively jumping into the car is not a search that violates the Fourth Amendment as long as the police did not encourage or facilitate the dog’s jump.” Objections 1-2 (citing United States v. Sharp, 689 F.3d 616 (6th Cir. 2012); United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir. 2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989)).
So then the question presented here is whether Tinka jumped into the car on her own accord or Defendant Lawson encouraged her to do so. Plaintiff submitted affidavits to the Court stating that Defendant Lawson pulled Tinka into the car. Defendant Lawson, however, states that Tinka instinctively jumped into the car. The Court is unable to make a factual finding based upon these contradictory affidavits. See Raines v. United States, 423 F.2d 526, 503 (4th Cir. 1970) (holding that resolution of a credibility dispute can rarely be made on affidavits alone).
As Defendants note, “[a]n affidavit used to oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant [or declarant] is competent to testify on the matter[s] stated.” Defendant’s Reply to Plaintiff’s Response to Defendants’ Motion for Summary Judgment 4 (quoting Fed.R.Civ.P. 56(c)(4).
The crux of Defendants’ argument is that Defendant Lawson, as the dog handler, is more or less an expert on the proper handling of Tinka, and so his affidavit is the final word on whether he actually pulled Tinka into Plaintiff’s car. And, according to Defendants’, because the affiants have not been trained in the proper procedures of handling a trained canine, their affidavits should be ...