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Newkirk v. Enzor

United States District Court, D. South Carolina

February 7, 2017

Catherine B. Newkirk, Plaintiffs,
v.
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 [1]

          Richard Mark Gergel United States District Court Judge

         Plaintiff 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. 75).

         The 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.

         Background

         The 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 8:20-8:30).[2]

         After 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.

         Analysis

         A. Legal Standard

         The 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)).

         Summary 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).

         Once 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)).

         B. Discussion

         1. Unlawful Arrest Claim Against Defendant Enzor

         With 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.

         The 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.

         The 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 arrest cases.[3]

         Hartman's 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 ...


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