United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
matter is before the court on United States Magistrate Judge
Mary Gordon Baker's report and recommendation
(“R&R”), ECF No. 42, that the court grant in
part plaintiff Garland River Baker's
(“Baker”) partial motion for summary judgment,
ECF No. 33, and deny in part defendant Town of Turbeville
(“Turbeville”), Town of Turbeville Police Chief
David Jones (“Chief Jones”), and Town of
Turbeville Police Lieutenant Grant Cannon's
(“Cannon”) motion for summary judgment, ECF No.
29. For the reasons set forth below, the court adopts the
R&R, grants in part and denies in part Baker's motion
for partial summary judgment, and denies in part
Turbeville's motion for summary judgment. Additionally,
the court adopts those portions of the R&R which are not
inconsistent with this Order.
Garland River Baker brings this action against the
above-captioned defendants under 42 U.S.C. § 1983 for
violations of his First Amendment right to Free Speech which
allegedly occurred during his arrest pursuant to Turbeville
Town Turbeville Ordinance 15-9 (“Turbeville
Ordinance”). Baker additionally seeks a declaratory
judgment that the Turbeville Ordinance is unconstitutional on
its face and as applied to him pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201 et seq. Finally,
Baker brings tort claims against the defendants under South
Carolina law for abuse of criminal process, malicious
prosecution, civil conspiracy, intentional infliction of
emotional distress, and respondeat superior. This matter is
before the court on the parties' cross motions for
summary judgment. Specifically, Baker moves for partial
summary judgment on the constitutionality of the Turbeville
Ordinance and, to the extent the Turbeville Ordinance is
unconstitutional, on his cause of action under 42 U.S.C.
§ 1983. See ECF No. 33. Defendants Lieutenant
Grant Cannon, Chief of Police David Jones, and the Town of
Turbeville move for summary judgment on all of Baker's
claims. See ECF No. 29.
R&R ably recites the relevant facts, and it is
unnecessary to review the details of the complaint,
depositions, and arrest reports that constitute the factual
record to this point. In short, Baker resides in Turbeville,
South Carolina and was arrested by Chief Jones for the
violation of the Turbeville Ordinance. ECF No. 42-1. The full
text of the Turbeville Ordinance states that:
It shall be unlawful for any person or persons willfully to
approach nearer than twenty (20) feet to any town employee
for the purpose of interfering or stopping that employee from
carrying out his/her duties.
ECF. No. 30.
arrest was based on an incident between Baker and Cannon, a
lieutenant with the Turbeville Police Department, on February
15, 2013. ECF No. 21 ¶ 13. Much of the encounter was
captured on video from the dashboard camera, although the
sound quality is poor and statements by the parties are
difficult to hear. ECF No. 35-3. The video shows Cannon
approaching a motorist and informing him of the reason for
the traffic stop, and Baker walking up to the motorist's
open window and having a discussion with him. Id. At
this point, Cannon approached Baker to ask if he needs
assistance and Baker refused, instead asking Cannon if the
Turbeville town administrator had talked to him about
speeding as per Baker's request and then requesting that
Cannon come with him, ostensibly to Turbeville Town Hall.
Id. Cannon then informed Baker that he needed to
leave or he would be arrested, at which point Baker left.
Id. Cannon did not arrest Baker for violating the
reported the incident to Chief Jones, ECF Nos. 29-2 ¶ 9;
29-3 ¶ 5, who reviewed the video from the dashboard
camera and concluded that he had probable cause to charge
Baker with violating the Turbeville Town Ordinance. ECF No.
29-3 ¶ 8. At no point did Chief Jones confer with Cannon
on the decision to obtain an arrest warrant for Baker.
Id. ¶ 23. Chief Jones arrested Baker on March
8, 2013. Id. ¶¶ 16-17. Chief Jones then
dismissed the warrant by asking the presiding judge to
nolle prosse Baker's warrant, again without
conferring with Cannon. Id. ¶¶ 22-23.
magistrate judge's R&R recommends the following
disposition of the parties' motions: (1) grant
Baker's motion for partial summary judgment on the
unconstitutionality of the Turbeville Ordinance facially and
as applied to Baker; (2) deny Baker's motion as it
pertains to Chief Jones and Cannon; (3) grant defendants'
motion for summary judgment as to Baker's state law
claims against all defendants and as to Baker's §
1983 claim against Cannon and Chief Jones; (4) deny
defendants' motion as to Turbeville's § 1983
liability and as to the constitutionality of the Turbeville
Ordinance facially and as applied to Baker.
filed timely objections to the R&R, ECF No. 43, and Baker
filed a response, ECF No. 46, to which Turbeville replied,
ECF No. 48. The matter is now ripe for the court's
STANDARDS OF REVIEW
court is charged with conducting a de novo review of
any portion of the magistrate judge's report to which
specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations
contained in that report. 28 U.S.C. § 636(b)(1). The
magistrate judge's recommendation does not carry
presumptive weight, and it is the responsibility of this
court to make a final determination. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). A party's
failure to object may be treated as agreement with the
conclusions of the magistrate judge. See Thomas v.
Arn, 474 U.S. 140, 150 (1985).
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[S]ummary judgment will not lie if the dispute
about a material fact is ‘genuine, ' that is, if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
“[A]t the summary judgment stage the judge's
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The
court should view the evidence in the light most favorable to
the nonmoving party and draw all justifiable inferences in
its favor. Id. at 255.
party seeking summary judgment shoulders the initial burden
of demonstrating to the district court that there is no
genuine issue of material fact.” Major v.
Greenville Hous. Auth., No. 6:12-cv-183, 2012 WL
3000680, at *1 (D.S.C. Apr. 11, 2012). Nevertheless,
“when a properly supported motion for summary judgment
is made, the adverse party ‘must set forth specific
facts showing that there is a genuine issue for
trial.'” Id. (quoting Fed.R.Civ.P. 56(e)).
The plain language of Federal Rule of Civil Procedure 56(c)
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“[C]onclusory allegations or denials, without more, are
insufficient to preclude the granting of the summary judgment
motion.” Major, 2012 WL 2000680, at *1.