United States District Court, D. South Carolina, Greenville Division
Gregory T. Christian, Plaintiff,
City of Greenville, South Carolina; Greenville Police Officer K.A. Payne Defendant.
Timothy M. Cain, United States District Judge
Gregory T. Christian, proceeding pro se, filed this
action pursuant to 42 U.S.C. § 1983 alleging a violation
of his constitutional rights. In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02, D.S.C., this
matter was referred to a magistrate judge for pretrial
handling. Before the court are the magistrate judge's
Report and Recommendation (“First Report”) (ECF
No. 56), issued October 18, 2016, recommending that the court
grant defendant City of Greenville's (“City”)
motion to dismiss amended complaint against City (ECF No.
33), the magistrate judge's Report and Recommendation
(“Second Report”) (ECF No. 63), issued October
25, 2016, recommending that the court deny Plaintiff's
motion for default judgment against defendant Greenville
Police Officer K.A. Payne (“Payne”) (ECF No. 59),
and Plaintiff's fourth motion to amend his complaint (ECF
No. 86). The parties were advised of their right to file
objections to the Reports. (ECF Nos. 56 at 8 and 63 at 3). On
October 28, 2016, Plaintiff filed objections to the First
Report (ECF No. 65) and objections to the Second Report (ECF
recommendations set forth in the Reports have no presumptive
weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The court is
charged with making a de novo determination of those portions
of the Reports 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).
However, the court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
magistrate judge summarized the facts of this action in his
First Report (ECF No. 56 at 1-3). Briefly, in Plaintiff's
second amended complaint, Plaintiff alleges that he was
improperly searched by officers of the City of Greenville
Police Department in violation of the Fourth Amendment to the
United States Constitution after being accused by a property
owner of stealing a ring at a yard sale. (ECF No. 73). As
noted above, Plaintiff seeks relief pursuant to 42 U.S.C.
§ 1983. Id. In his original complaint,
Plaintiff named City as the only defendant. (ECF No. 1).
Subsequently, on June 24, 2016, Plaintiff moved to amend his
complaint to add defendant Payne (ECF No. 18) and the
magistrate judge granted Plaintiff's motion on July 7,
2016 (ECF No. 22). The amended complaint (ECF No. 26) was
served on Payne on September 22, 2016. (ECF No. 59-1).
21, 2016, defendant City filed a motion to dismiss for
failure to state a claim based upon Plaintiff's failure
to identify any policy or custom of the city that caused a
deprivation of his rights. (ECF No. 33). On August 16, 2016,
Plaintiff filed a motion to amend the amended complaint (ECF
No. 38) which the magistrate judge denied, noting that
Plaintiff had not yet responded to City's motion to
dismiss (ECF No. 43). On September 16, 2016, Plaintiff filed
his response in opposition to City's motion to dismiss.
(ECF No. 46). Plaintiff filed his third motion to amend his
complaint on September 22, 2016 (ECF No. 49), to which
defendant City filed a response in opposition on October 10,
2016 (ECF No. 50). The magistrate judge granted
Plaintiff's third motion to amend his complaint on
October 18, 2016 (ECF No. 56) and Plaintiff filed his Second
Amended Complaint on October 28, 2016 (ECF No. 73). Finally,
Plaintiff filed a fourth motion to amend his complaint on
January 23, 2017. (ECF No. 86). Before the court are the
magistrate judge's Reports on City's motion to
dismiss Plaintiff's claims against City (ECF No. 33) and
Plaintiff's motion for default judgment against Payne
(ECF No. 59), and Plaintiff's fourth motion to amend his
complaint (ECF No. 86).
Second Amended Complaint, Plaintiff raised a claim against
defendants City and Payne alleging that his Fourth Amendment
rights had been violated under the color of state law
pursuant to § 1983. The magistrate judge determined that
Plaintiff failed to assert sufficient factual allegations
against defendant City to support a § 1983
claim. (ECF No. 56 at 8). Specifically, he found
that Plaintiff did not adequately allege that City maintained
a policy or custom that led to the alleged deprivation of his
rights nor did he allege facts demonstrating that the acts of
the police officers were the result of such a policy or
custom. (ECF No. 56 at 6).
objections contain a recitation of the arguments contained in
his response to City's motion to dismiss rather than
specific objections to the magistrate judge's findings.
(ECF Nos. 65). However, the court gleans that Plaintiff
objects to the magistrate judge's conclusion on two
grounds. First, Plaintiff argues that the
magistrate judge failed to acknowledge his allegation that he
was denied access to defendant City's relevant policy.
(ECF No. 65 at 1). Second, Plaintiff argues that City's
actions subsequent to the complaint establish the existence
of an official policy or custom adequate to overcome
City's motion to dismiss. (ECF No. 65 at 1- 2).
municipality may be subject to suit under § 1983,
Monell v. New York City Dep't of Social
Services, 436 U.S. 658, 690 (1978), but liability
attaches “only where the municipality itself
causes the constitutional violation at issue.” City
of Canton v. Harris, 489 U.S. 378, 385 (1989). A viable
§ 1983 Monell claim has two elements: (1) the
municipality had an unconstitutional policy or custom and (2)
the unconstitutional policy or custom caused a violation of
the plaintiff's constitutional rights. See, e.g.,
Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir.
1994) (holding that “plaintiffs seeking to impose
liability on a municipality must, therefore, adequately plead
and prove the existence of an official policy or custom that
is fairly attributable to the municipality and that
proximately caused the deprivation of their rights.”);
Monell, 436 U.S. at 694 (holding that plaintiff must
prove that “execution of a government's policy or
custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official
policy, inflicts the injury.”). Thus, to survive a Rule
12 motion for dismissal, a plaintiff's pleadings must
identify a specific policy or custom “fairly
attributable to the municipality as its own” that
caused the alleged Constitutional violation and allege that
as a result of deliberate conduct, the municipality was the
“moving force” behind the injury. Spell v.
McDaniel, 824 F.2d 1380, 1387 (4th Cir.
1987); Bd. of Cty. Comm'rs v. Brown, 520 U.S.
397, 403 (1997).
official policy often refers to ‘formal rules or
understandings . . . that are intended to, and do, establish
fixed plans of action to be followed under similar
circumstances consistently and over time, ' and must be
contrasted with ‘episodic exercises of discretion in
the operational details of government.'” Semple
v. City of Moundsville, 195 F.3d 708, 712
(4th Cir. 1999) (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 480 (1986)). “Outside of
such formal decision making channels, a municipal custom may
arise if a practice is so ‘persistent and
widespread' and ‘so permanent and well settled as
to constitute a ‘custom or usage' with force of
law.'” Carter v. Morris, 164 F.3d 215, 218
(4th Cir. 1999) (quoting Monell, 436 U.S. at 691). A
custom “may be attributed to a municipality when the
duration and frequency of the practices warrants a finding of
either actual or constructive knowledge by the municipal
governing body that the practices have become customary among
its employees.” Spell, 824 F.2d at 1387.
“municipalities are not liable pursuant to
respondeat superior principles for all
constitutional violations of their employees simply because
of the employment relationship.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). A
municipality may not be held liable under § 1983 solely
because it employs the tortfeaser. See Bd. of Cty.
Comm'rs, 520 U.S. 397. Accordingly, liability will
not “be inferred merely from municipal inaction in the
face of isolated constitutional deprivations by municipal
employees.” Milligan v. City of Newport News,
743 F.2d 227, 230 (4th Cir. 1984). Rather, to be actionable,