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Rivers v. Alteri

United States District Court, D. South Carolina

May 31, 2016

Rufus Rivers, Plaintiffs,
v.
G. Alteri, Bobby Shuler, Chad Shelton, William Myrick, Kimberly Manning, and Bryan Stirling, Defendants.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, Magistrate Judge.

         The 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.

         In his 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 probation.

         In a 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. § 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).

         On 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.

         Following 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 12, 2016.

         Defendants' motion is now before the Court for disposition.[1]

         Background and Evidence

         With 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, ¶ ¶ 30-31, 33.[2] Plaintiff alleges his probation was then transferred to Orangeburg County from Berkeley County. Id., ¶ 34.

         Plaintiff 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., ¶ ¶ 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., ¶ 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., ¶ ¶ 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., ¶ ¶ 57, 60; see also, Request for Relief [Sixth Cause of Action], at p. 9.

         In 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.

         As 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.[3]

         Finally, 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.

         In 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 ...


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