United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
Charles Tice (“Plaintiff”), proceeding pro
se and in forma pauperis, brought this action
against Jerry B. Adger, Head Probation Officer
(“Adger”), and Lisa Baker, Probation Officer
“Defendants”) claiming a violation of his
constitutional rights pursuant to 42 U.S.C. § 1983. ECF
No. 1. This matter is before the court on motions for summary
judgment by Defendants. ECF Nos. 20, 44.
about November 27, 2015, Plaintiff filed this action alleging
Defendants violated his rights under the Fourth Amendment to
the United States Constitution. ECF No. 1 at 1. In addition,
Plaintiff moved for leave to proceed in forma
pauperis under 28 U.S.C. § 1915, ECF No. 2, which
was granted on December 10, 2015, by Magistrate Judge Paige
J. Gossett, ECF No. 8. On April 12, 2016, Defendants filed a
motion for summary judgment. ECF No. 20. Because Plaintiff is
proceeding pro se, the Magistrate Judge entered an
order pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), advising him of the importance of the motion
and of the need for him to file an adequate response. ECF No.
22. On April 21, 2016, Plaintiff filed a response in
opposition to Defendants' motion for summary judgment.
ECF No. 29. On April 28, 2016, Plaintiff filed a supplemental
response. ECF No. 32. Plaintiff filed an additional
supplemental response on June 21, 2016; however, this
document was untimely and did not add any new arguments to be
considered. ECF No. 40. On August 19, 2016, the Magistrate
Judge issued a Report and Recommendation, recommending
Defendants' motion for summary judgment be granted to the
extent Plaintiff raised claims against Defendants in their
official capacities, but denied as to the remaining grounds
raised by Defendants. ECF No. 42. It was further recommended
that Defendants be granted leave to refile a motion for
summary judgment properly supported by materials.
Id. at 8.
the parties did not file objections to the Report and
Recommendation, Defendants filed another motion for summary
judgment on September 8, 2016, which did not address all of
the positions argued in their previous motion. ECF No. 44.
Plaintiff filed a response in opposition to the second motion
on October 14, 2016. ECF No. 49.
in an effort to streamline this matter, the court adopted the
Magistrate Judge's recommendation to grant leave for
Defendants to refile a properly supported motion for summary
judgment; however, the court referred the case back to the
Magistrate Judge to address both of Defendants' motions
for summary judgment simultaneously. ECF No. 54. On December
9, 2016, due to Defendants' second motion for summary
judgment, the Magistrate Judge entered an additional order
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising Plaintiff of the importance of the
motion and of the need to file an adequate response. ECF No.
57. On or about December 19, 2016, Plaintiff timely filed a
supplemental response in opposition with a memorandum in
support. ECF No. 59. On December 22, 2016, the Magistrate
Judge issued a Report and Recommendation
(“Report”), recommending summary judgment on all
of Plaintiff's claims. ECF No. 62. The Magistrate Judge
advised the parties of the procedures and requirements for
filing objections to the Report and the serious consequences
if they failed to do so. On or about January 12, 2017,
Plaintiff filed objections to the Report. ECF No. 65.
Defendants did not respond to Plaintiff's objections.
Thus, this matter is ripe for the court's review.
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 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 to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an
objection. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of a timely filed objection, a
district court need not conduct a de novo review,
but instead must ‘only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.'”) (quoting Fed.R.Civ.P. 72
advisory committee's note).
Report set forth in detail the relevant facts and standards
of law on this matter, and this court
incorporates those facts and standards here. Plaintiff makes
five objections to the Report; however, many of his
objections contain the same arguments already raised in his
responses in opposition. In addition, four of these
objections are based in part on Plaintiff's
misunderstanding of the South Carolina Court of Appeals'
decision regarding a violation of his constitutional right at
the probation revocation hearing.
Plaintiff objects to the Report's qualified immunity
discussion because he argues Baker knew he was unable
to pay when she issued his arrest warrant, and, thus, Baker
was “abusing her power” when she issued an arrest
warrant for Plaintiff's failure to pay. ECF No. 65 at
1-2. Second, Plaintiff objects to the Report's statement
that Defendants provided copies of the arrest warrant and
affidavit which indicate he failed to pay fees and stay
enrolled in counseling as required by the terms of his
probation because, he contends, “[i]f probation
conditions violate Constitution Law then it should not be
used.” Id. at 3. Third, Plaintiff objects to
the Report's reference to the transcript of his probation
revocation hearing in which Plaintiff admitted he violated
the terms of his probation, because he was terminated from
counseling due to his inability to pay and it was not a
willful violation. Id. Fourth, Plaintiff objects to
the Report's recommendation that summary judgment be
granted because Baker knew Plaintiff was unable to pay, did
not attempt to reduce his fine payments as his previous
probation agent did, forced him to switch to a doctor he
could not afford, and failed to explore other alternatives.
Id. at 4-5. Finally, in one sentence, Plaintiff
objects to the Report's recommendation that Defendants
are entitled to immunity under the Eleventh Amendment.
Id. at 4.
evidenced above, Plaintiff's objections generally consist
of arguments made in his previously filed briefs and can be
boiled down to two basic objections: (1) Plaintiff did not
willfully violate his probation, so he should not have been
arrested, and (2) Defendants are not entitled to immunity
under the Eleventh Amendment. Neither of these objections
Willful Violation of Probation
the duty of the court, not Plaintiff's probation agent,
to determine whether or not Plaintiff willfully violated the
terms of his probation. In fact, as the transcript from the
probation revocation hearing makes quite clear, the probation
agent present at the hearing actually asserted Plaintiff had
not willfully violated his probation. ECF No. 44-1 at 6
(stating “we definitely would like to assert that
it's not a willful choice not to pay, it's that he
can't afford it . . . Again, I'd just like to
emphasize that it wasn't a willful choice not to
pay”). Moreover, the agent objected to the revocation
of probation and cited ...