United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III, Magistrate Judge.
action arises out of Plaintiff's arrest on December 25,
2007. Pursuant to 42 U.S.C. Â§ 1983, Plaintiff alleges claims
of false arrest, excessive force, and cruel and unusual
punishment in violation of her rights under the Fourth and
Fourteenth Amendments. She further alleges state law claims
for malicious prosecution, abuse of process, defamation, and
civil conspiracy. Presently before the Court is
Defendant's Motion for Summary Judgment (Document # 105).
All pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(f), DSC. This
Report and Recommendation is entered for review by the
December 25, 2007, Defendant Robert Dale, an officer with the
Horry County Police Department, observed Plaintiff
"swerving all over the road from lane to lane, causing
vehicles to swerve out of the vehicle's path to keep from
being struck." See Arrest Report (Ex. 1 to Def.
Motion). In Officer Dale's experience, this
type of reckless driving often indicates that the person
driving is intoxicated. See Dale Aff. Â¶ 6. When Plaintiff
stopped her van, she immediately got out of the car. See
Arrest Video. She then leaned back into the car and appeared
to be moving something around. Id . She then looked
back at the police car, shut her door, and appeared to lock
it. Id . Officer Dale averred that this behavior
indicated to him that Plaintiff was probably hiding something
in the van, and that this behavior, coupled with Plaintiff
swerving on the road, often indicates that person is hiding
either drugs or alcohol. See Dale Aff. Â¶Â¶ 9-10. Officer Dale
averred that his mindset during this traffic stop was that
Plaintiff could be driving under the influence, carrying
illegal drugs, or leaving the scene of some other crime.
Id . at Â¶ 11. When Officer Dale approached
Plaintiff, he asked her why she was swerving all over the
road. See Arrest Video. She responded that she did not mean
to be swerving, and was just trying to get to a bathroom.
Id . Officer Dale asked to see her driver's
license, registration and proof of insurance. Id .
Plaintiff turned toward the door of her van, and then turned
back toward Officer Dale and began to walk past him, asking
if she could use the restroom first. Id . Officer
Dale responded that she was going to "stay right here,
" but Plaintiff continued walking, stating that she had
to use the restroom. Id . Officer Dale repeated that
she was going to "stay right here, " pulled her by
the arm back towards the van, and pinned her against
the van. Id . He then handcuffed Plaintiff and
placed her under arrest before escorting her to his patrol
car. Id . He told her she could use the bathroom
when she got to the jail. Id . Although outside the
view of the camera, Officer Dale can be heard telling
Plaintiff numerous times to "stop resisting, "
"get in the car, " and "put your feet in [the
car]." Id . Plaintiff can be heard repeatedly
stating that she has to use the bathroom. Id.
Dale charged Plaintiff with reckless driving, failure to give
proper signal, and resisting arrest. See Arrest Warrant for
Resisting Arrest (Ex. 4 to Def. Motion); Traffic Tickets (Ex.
5 to Def. Motion). At the time of the arrest, Officer Dale
did not know that Plaintiff was the Mayor of Atlantic Beach.
Dale Aff. Â¶ 16. A jury convicted Plaintiff of resisting
arrest, and the South Carolina Court of Appeals upheld
Plaintiff's conviction. See Sentencing Sheet (Ex. 6 to
Def. Motion); Ct. App. Opinion (Ex. 7 to Def. Motion). Her
tickets for reckless driving and failure to signal were
dismissed by Officer Dale because Plaintiff had been arrested
and later convicted of the resisting arrest charge. Dale Aff.
STANDARD OF REVIEW
moving party bears the burden of showing that summary
judgment is proper. Summary judgment is proper if there is no
genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is proper if the non-moving party fails to
establish an essential element of any cause of action upon
which the non-moving party has the burden of proof.
Celotex, 477 U.S. at 322. Once the moving party has
brought into question whether there is a genuine dispute for
trial on a material element of the non-moving party's
claims, the non-moving party bears the burden of coming
forward with specific facts which show a genuine dispute for
trial. Fed.R.Civ.P. 56(e); Matsushita Electrical
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). The non-moving party must come forward with enough
evidence, beyond a mere scintilla, upon which the fact finder
could reasonably find for it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The facts and
inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However,
the non-moving party may not rely on beliefs, conjecture,
speculation, or conclusory allegations to defeat a motion for
summary judgment. Barber v. Hosp. Corp. of Am., 977
F.2d 872, 874-75 (4th Cir. 1992). The evidence relied on must
meet "the substantive evidentiary standard of proof that
would apply at a trial on the merits." Mitchell v.
Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324. Rather, the
party must present evidence supporting his or her position by
"citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials."
Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications,
Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th
Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir.
1993); Local Rules 7.04, 7.05, D.S.C.
U.S.C. Â§ 1983
brings this action in part pursuant to 42 U.S.C. Â§ 1983.
Section 1983 "is not itself a source of substantive
rights, ' but merely provides a method for vindicating
federal rights elsewhere conferred.'" Albright
v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d
114 (1994) (quoting Baker v. McCollan, 443 U.S. 137,
144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal
action under Â§ 1983 allows "a party who has been
deprived of a federal right under the color of state law to
seek relief." City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143
L.Ed.2d 882 (1999). To be successful on a claim under Â§ 1983,
a plaintiff must establish two essential elements: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101
L.Ed.2d 40 (1988).
complaint, Plaintiff alleges that "Defendant did
imprison and prosecute the Plaintiff maliciously and without
probable cause." Compl. Â¶ 14. Plaintiff entitles this
cause of action "Violation of Fourth Amendment
Prosecution." However, both parties address false arrest
rather than malicious prosecution. The distinction between
the two causes of action turns on whether the arrest at issue
was warrantless or pursuant to a facially valid warrant. See
Dorn v. Town of Prosperity, 375 Fed.Appx. 284, 286
(4th Cir. 2010). "As a general rule, an unlawful arrest
pursuant to a warrant will be more closely analogous to the
common law tort of malicious prosecution. An arrest warrant
constitutes legal process, and it is the tort of malicious
prosecution that permits damages for confinement pursuant to
legal process. On the other hand, wrongful warrantless
arrests typically resemble the tort ...