United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
Plaintiff, Rufus Rivers, proceeding pro se and in forma
pauperis, filed a lawsuit seeking monetary damages and
injunctive relief for alleged violations of his
constitutional rights and violations of state law by the
named Defendants. At the time Plaintiff filed this action, he
was incarcerated with the South Carolina Department of
Corrections (SCDC), but he has now been released from
custody. See Court Docket No. 11.
original Complaint, Plaintiff's claims concerned his
February 2009 arrest for "stealing money" and for
the revocation of his probation. Plaintiff alleged claims
against the Berkeley County Sheriff, arresting officer G.
Alteri, and arresting officer Shuler for false arrest, false
imprisonment, misrepresentations, and defamation; against
Alteri and Shuler for malfeasance and negligent
misrepresentation; against the Berkeley County Public
Defender and Chad Shelton (public defender) for nonfeasance
and misrepresentation; against the South Carolina Attorney
General ("SCAG") and William Myrick (an assistant
South Carolina attorney general) for abuse of power and
"intentional emotional distress"; against [then]
Defendant Department of Probation, Parole and Pardon Services
("SCDPPPS") and Kimberly Manning (a SCDPPPS
employee) for malicious prosecution and negligence; and
against the SCDC and SCDC Director Bryan Stirling for
unlawful imprisonment following the revocation of his
Report and Recommendation issued August 19, 2014, the
undersigned recommended summary dismissal of Plaintiff's
case on various grounds. See Court Docket No. 17. Plaintiff
thereafter filed a motion to amend his Complaint on September
8, 2014, and by Order issued March 30, 2015, Plaintiff's
motion to amend was granted. The following day, an Order was
entered adopting in part and rejecting in part the Report and
Recommendation. In that Order, the Court 1) found that
Plaintiff's federal claims against the Defendants Alteri
and Shuler for false arrest, false imprisonment and malicious
prosecution arising out of Plaintiff's initial arrest and
detainment were subject to dismissal under Heck v.
Humphrey, 512 U.S. 477 (1994), 2) that Plaintiff's
federal claims against the Defendant Shelton (Plaintiff's
Public Defender) were subject to dismissal because Shelton
was not a state actor for purposes of a claim under 42 U.S.C.
Â§ 1983, 3) that Plaintiff's federal claims against the
Defendant Myrick (a Prosecutor) were subject to dismissal
based on prosecutorial immunity, and 4) that Plaintiff's
federal claims against the Defendant Manning (a probation
officer) were subject to dismissal based on quasi-judicial
immunity. With respect to the Defendant Stirling, however,
the Court held that Plaintiff's federal claims against
Stirling to the extent they arose out of his incarceration
for violating the conditions of his probation were not
subject to dismissal under Heck at that time because
Plaintiff had appealed his probation revocation. Further, as
this federal claim was not being dismissed, the Court found
that Plaintiff's various pendant state law causes of
action were also not subject to dismissal at that time. See
generally, Order (Court Docket No. 24).
January 15, 2016, the Defendants filed a motion for summary
judgment pursuant to Rule 56 Fed.R.Civ.P. As the Plaintiff is
proceeding pro se, a Roseboro Order was entered by the Court
on January 19, 2016, advising Plaintiff of the importance of
a dispositive motion and of the need for him to file an
adequate response. Plaintiff was specifically advised that if
he failed to respond adequately, the Defendants' motion
may be granted, thereby ending his case. However,
notwithstanding the specific warning and instructions as
contained in the Court's Roseboro order, Plaintiff failed
to file any response to the Defendants' motion, or to
contact the Court in any way. Therefore, on February 29,
2016, a Report and Recommendation was entered recommending
dismissal of the case for lack of prosecution.
entry of the Report and Recommendation, a motion for
extension of time to respond was received from the Plaintiff.
That motion was granted, and Plaintiff thereafter filed a
response in opposition to the motion for summary judgment on
March 21, 2016. The Defendants filed a reply memorandum on
March 29, 2016, to which Plaintiff filed a sur reply on April
motion is now before the Court for disposition.
respect to Plaintiff's remaining federal claim against
the Defendant Stirling arising out of his incarceration for
violating the conditions of his probation, Plaintiff alleged
in his Amended Complaint that following his conviction on
felony charges in July 2010 he received a sentence of ten
years, suspended to five years probation for obtaining
property under false pretenses, and five years, suspended to
five years probation, for exploitation of a vulnerable adult.
Complaint, Â¶ Â¶ 30-31, 33. Plaintiff alleges his probation was
then transferred to Orangeburg County from Berkeley County.
Id., Â¶ 34.
alleges that, subsequently, his probation was revoked on
September 15, 2010 for non-payment of restitution, and he was
sentenced to ninety days in prison. Plaintiff alleges that he
posted bail while he appealed this ruling, following which he
was violated again on November 10, 2010 for willful
non-payment of restitution and sentenced to three years.
Plaintiff alleges that this occurred while his previous
appeal was still pending, and that on or about January 11,
2011 his attorney appealed the second revocation as well.
Plaintiff alleges that he posted bond and was released from
prison after service of one hundred and three (103) days.
Id., Â¶ Â¶ 43-46. Plaintiff alleges that thereafter,
on March 7, 2012, his probation was again revoked for
non-payment and he was sentenced to six months in prison even
"while the previous appeals were be[ing] decided".
Id., Â¶ 48. Plaintiff alleges that after serving this
six month sentence he was released from prison. Plaintiff
further alleges that on July 2, 2012 his previous revocations
were reversed and remanded on appeal, but that on March 13,
2013, even "after presenting to the court the appeals
court's decisions", his probation was revoked and he
was sentenced to two years in prison for willful nonpayment
of restitution. Id., Â¶ Â¶ 49-51. Plaintiff alleges
that the Defendant Stirling is liable to him for monetary
damages because he "failed to act when Plaintiff
produced documentation to confirm Plaintiff's right to be
released". Id., Â¶ Â¶ 57, 60; see also, Request
for Relief [Sixth Cause of Action], at p. 9.
support of summary judgment on this claim, the Defendants
have submitted a copy of Plaintiff's probation violation
citation of August 12, 2010, as well as part of the
transcript from Plaintiff's probation revocation hearing
of September 15, 2010, wherein the Court revoked
Plaintiff's probation and sentenced him to ninety days.
See Court Docket Nos. 61-11 and 61-12. Defendants have also
submitted a copy of Plaintiff's second probation
violation citation dated September 24, 2010, as well as part
of the transcript from Plaintiff's second probation
violation hearing on November 10, 2010, wherein the Court
revoked Plaintiff's probation and reinstated three years
of Plaintiff's ten year sentence, following which
Plaintiff would be back on probation to make restitution. See
Court Docket Nos. 61-13 and 61-14.
Plaintiff notes in his amended Complaint, he appealed both of
these rulings, and on July 11, 2012 the South Carolina Court
of Appeals found that the lower court had erred by revoking
Plaintiff's probation without making the necessary
findings of fact as to whether the violation of failure to
pay restitution was willful, and reversed and remanded the
matter back to the circuit court with instructions to make
the findings required by State v. Spare, 647 S.E.2d
706 (S.C.Ct. App. 2007). See State v. Coker, 723
S.E.2d 619, 620 (S.C.Ct. App. 2012) [Holding that "the
circuit court may not revoke probation solely on the basis of
a failure to pay money unless the record reflects made"
certain findings outlined by Spare]. See also Court Docket
No. 61-15. Defendants have provided evidence to show that,
following this remand, counsel for the Department of
Probation, Parole and Pardon Services requested that a
hearing be scheduled so that the circuit court could make the
findings required by Spare, and that this hearing was held on
March 6, 2013. At the conclusion of that hearing the Circuit
Judge issued orders finding that Plaintiff had willfully made
a choice not to pay his restitution, thereby violating the
terms of his probation, and revoking Plaintiff's
probation and ordering that he serve two years of the
original sentence, suspended upon payment of $2, 250 towards
restitution. See Court Docket No. 61-17. Plaintiff appealed
this decision on March 11, 2013; however, his appeal was
dismissed on November 6, 2013 for failure to comply with the
required procedural requirements for perfecting the appeal.
See Court Docket Nos. 61-18 and 61-19. There is no record of
Plaintiff ever pursuing, or attempting to pursue, any habeas
relief (state or federal) with respect to any of these
probation violation decisions.
the Defendants have submitted evidence to show that on
January 22, 2015, orders were entered by the state circuit
court finding that Plaintiff had violated the terms of his
probation, that he had served a total of thirty-three months
in prison, that a civil judgment should be entered for fees,
fines and restitution, and that Plaintiff's probation was
being reduced to time served and Plaintiff was released from
supervision. See Court Docket No. 61-20.
opposition to the Defendants' motion for summary
judgment, Plaintiff has provided an affidavit (undated).
However, Plaintiff does not address in this affidavit the
issues or his claims relating to ...