United States District Court, D. South Carolina
Catherine B. Newkirk, Plaintiffs,
James B. Enzor, individually and as an officer of the South Carolina Highway Patrol and the South Carolina Department of Public Safety, Defendants.
AMENDED ORDER 
Richard Mark Gergel United States District Court Judge
filed this action pursuant to 42 U.S.C. § 1983 and the
South Carolina Tort Claims Act, alleging that Defendants, an
officer of the South Carolina Highway Patrol and the South
Carolina Department of Public Safety, are liable for
constitutional violations and certain torts during a traffic
stop on October 14, 2012. Defendants filed a Motion for
Summary Judgment on November 25, 2014 (Dkt. No. 64) and
December 1, 2014 (Dkt No. 65) respectively. Plaintiff filed a
Response to both motions on December 18, 2014 (Dkt. No. 74),
and Defendants filed a Reply on January 5, 2015 (Dkt. No.
case is now before this Court on the Report and
Recommendation ("R&R") of the Magistrate Judge,
submitted April 8, 2015 (Dkt. No. 80), which recommends that
both Defendant Enzor's Motion for Summary Judgment (Dkt.
No. 64) and Defendant South Carolina Department of Public
Safety ("SCDPS")'s Motion for Summary Judgment
(Dkt. No. 65) be granted. Defendant Enzor filed objections to
the R&R on May 7, 2015 (Dkt. No 86). Plaintiff filed
objections to the R&R on May 7, 2015 (Dkt. No. 86), and
Defendant SCDPS filed a reply to Plaintiffs objections on May
26, 2015 (Dkt, No. 88). For the reasons stated herein, the
Court declines to adopt the R&R except as to the
background facts given at pages 2-3 and the analysis of
Eleventh Amendment immunity at page 20. The Court GRANTS in
part and DENIES in part the Motion for Summary Judgment as to
Defendant SCDPS, and GRANTS in part and DENIES in part the
Motion for Summary Judgment as to Defendant Enzor.
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 brief, Plaintiff Catherine Newkirk
was driving, with her husband Jerome Newkirk, on Interstate
95, when Ms. Newkirk was pulled over by Defendant Enzor for
exceeding the speed limit in a work zone. After reviewing her
license and registration, Enzor wrote a ticket, walked back
to the Newkirks' car, and passed the license and
registration back to the driver, holding the ticket itself in
his hand. Although he did not give the ticket to Ms. Newkirk,
he described it as being written for 64 mph, rather than the
77 mph (in a 55 speed limit zone). (Dkt. No. 64-2 at
disputing the ticket and asking if she had been pulled over
because of racial discrimination, not speeding, Ms. Newkirk
was removed to the side of the road and arrested. Mr.
Newkirk, who remained in or just to the side of the
Newkirks' vehicle while speaking to his wife and the
officer, was also arrested by Enzor. Much of the encounter
was captured on video, although the sound quality is poor and
statements by the parties are difficult to hear. (Dkt. Nos.
64-2; 64-3; 64-4). Both of the Newkirks filed suit against
Enzor and SCDPS, and both cases were removed to this Court by
Defendants. (See Dkt. No. 1; Civil Action No.
4:13-cv-1634). Both complaints allege that both Defendants
are liable for violation of the Plaintiffs'
constitutional rights pursuant to 42 U.S.C, § 1983. Ms.
Newkirk also brought seven claims against SCDPS, arguing that
SCDPS is vicariously liable for assault; battery; negligence,
gross negligence, and recklessness; intentional infliction of
emotional distress; malicious prosecution; and false
imprisonment; and directly liable for negligent supervision
and training of Enzor. As the intentional infliction of
emotional distress claim was voluntarily dismissed in the
summary judgment pleadings, the R&R and this order
address the constitutional allegations against Enzor and the
six remaining tort claims against SCDPS.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1). To the extent
Petitioner fails to point to a specific error in the R &
R and simply makes conclusory objections, the Court need not
conduct a de novo review. Smith v. Washington
Mut. Bank FA, 308 F.App'x 707, 708 (4th Cir. 2009)
("The court need not conduct de novo review ...
'when a party makes general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.'") (quoting Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
judgment is appropriate if a party "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). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts, " Pulliam
Inv. Co. v. Cameo Props,, 810 F.2d 1282, 1286 (4th Cir,
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp, v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp, Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
Unlawful Arrest Claim Against Defendant Enzor
respect to Plaintiffs Section 1983 unlawful arrest claim,
Defendant Enzor first argues that because he had probable
cause to arrest Ms. Newkirk based on her violation of the
speed limit, it would be impossible for him to have violated
her civil rights to be free of unreasonable arrest and
excessive force in retaliation for her comment that she felt
Enzor's treatment of her was discriminatory. Second, he
argues that even if there is a constitutional right to be
free of unreasonable arrest that perseveres in a case where
probable cause exists to arrest on a validly observed legal
violation, such a constitutional right has not been clearly
established by the Fourth Circuit or the Supreme Court, and
he is therefore entitled to qualified immunity. (Dkt. No.
64-1 at 5-6). The Court finds that Plaintiff has submitted
evidence of facts sufficient to support a claim that she was
subject to a retaliatory, unconstitutional arrest, despite
the existence of probable cause for an arrest for breaking
the speed limit.
Supreme Court has indeed established that even a very minor
traffic violation committed in the presence of an officer, or
probable cause that such a violation occurred, can provide a
legal basis for a detainment. Atwater v. City of Lago
Vista, 532 U.S. 318, 354 (2001). If Plaintiff were found
to have been speeding, and if Enzor were to be found, as a
matter of fact, to have arrested Plaintiff only for speeding,
Plaintiffs claim would certainly fail. And of course, if
Enzor were found by a jury to have arrested Plaintiff because
she questioned whether she was being discriminated against,
and no separate and alternate probable cause for the arrest
existed, Plaintiff would prevail. Hartman v. Moore,
547 U.S. 250, 256 (2006) (finding that as a general matter,
"the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including
criminal prosecutions, for speaking out"); City of
Houston, Tex. v. Hill, 482 U.S. 451, 471 (1987)
(referencing "the constitutional requirement that, in
the face of verbal challenges to police action, officers and
municipalities must respond with restraint"); Hayes
v. City of Seat Pleasant, Md, 469 F.App'x 169 (4th
Cir. 2012) (finding that a verbal inquiry or challenge may
not sustain a defendant's motion for summary judgment on
the grounds that the plaintiff was "hindering" an
officer's work); McCoy v. City of Columbia, 929
F.Supp.2d 541 (D.S.C. 2013) (finding that a city ordinance
barring interference with a police officer's duties was
unconstitutionally vague, and that a plaintiff who argued
with a police officer arresting an individual had a valid
First Amendment claim despite probable cause for violation of
the unconstitutional law). The question here is whether,
taking all facts in a light most favorable to Plaintiff,
Enzor violated her rights by coming to a clear decision
not to arrest her based on the speeding violation
and then, upon hearing Plaintiffs opinion of him,
effectuating a retaliatory arrest based solely on her speech.
The Court finds that Plaintiff has alleged facts sufficient
to support such a Constitutional claim.
Supreme Court has not addressed the question of whether
independent probable cause cures an otherwise retaliatory
arrest, but it has found that plaintiff may not plead a
retaliatory prosecution claim against a law enforcement
officer without also pleading an absence of probable cause
for the charge. Hartman v. Moore, 547 U.S. 250
(2006). The Court explained that "[s]ome sort of
allegation, then, is needed both to bridge the gap between
the nonprosecuting government agent's motive and the
prosecutor's action, and to address the presumption of
prosecutorial regularity. And at the trial stage, some
evidence must link the allegedly retaliatory official to a
prosecutor whose action has injured the plaintiff. The
connection, to be alleged and shown, is the absence of
probable cause." Hartman, 547 U.S. at 263.
Lower courts have since split as to whether
Hartman's analysis is applicable to retaliatory
underlying concern, which is a substantial one, is that to
generally allow First Amendment challenges to legal actions
that are supported by probable cause and therefore would have
taken place regardless of any First Amendment speech would
invite the expenditure of significant legal resources looking
behind the motives of legally valid or even necessary