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Tice v. Adger

United States District Court, D. South Carolina, Columbia Division

March 7, 2017

Joseph Charles Tice, Plaintiff,
v.
Jerry B. Adger, Head Probation Officer; Lisa Baker, Probation Officer, Defendants.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Joseph 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 (“Baker”), (collectively “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.

         I. Procedural Background

         On or about November 27, 2015, Plaintiff filed this action alleging Defendants violated his rights under the Fourth Amendment to the United States Constitution.[1] 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.[2] 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.

         Although the parties did not file objections to the Report and Recommendation, [3]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.

         Thus, 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.[4] 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.[5] ECF No. 65. Defendants did not respond to Plaintiff's objections. Thus, this matter is ripe for the court's review.

         II. 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 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).

         III. Discussion

         The Report set forth in detail the relevant facts and standards of law[6] 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.[7]

         First, Plaintiff objects to the Report's qualified immunity discussion[8] 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.[9] 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.

         As 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 prevail.

         a. Willful Violation of Probation

         It was 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 ...


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