United States District Court, D. South Carolina, Charleston Division
Gary M. and Garyonna M., minors, by and through their next friends, April Zealous and Gary McDaniel, and April Zealous and Gary McDaniel, Plaintiffs,
City of North Charleston, Officer Bradley Woods, Captain Scott Perry, Sergeant Charity Prosser, Deputy Chief Coyle Kinard, Detective Karen MacDonald, Lieutenant Wade Humphries, Lieutenant Bowman, Sergeant Rob Kruger, Sergeant Skip Allen, MPO Winston Williams, PFC Clarence Habersham, PFC Christopher Gorman, PFC Charles Champion, PCC Justin Fogle, PFC Jeremy Stevens, and PFC Joshua Quick, Defendants.
C. NORTON, UNITED STATES DISTRICT JUDGE
matter is before the court on United States Magistrate Judge
Mary Gordon Baker's report and recommendation
("R&R"), ECF No. 32, that the court grant in part
and deny in part defendants' motion for partial summary
judgment, ECF No. 25. For the reasons set forth below, the
court adopts in part and rejects in part the R&R and grants
in part and denies in part defendants' motion for partial
Gary M. and Garyonna M., minors, by and through their next
friends, April Zealous and Gary McDaniel, (the
"children"), Gary McDaniel ("McDaniel"),
and April Zealous ("Zealous") (collectively,
"plaintiffs") bring this action against the
above-captioned defendants under 42 U.S.C. § 1983 for
the alleged excessive or unnecessary destruction of property
in the course of a search as secured by the Fourth and
Fourteenth Amendments and a state law claim for negligence
and gross negligence solely against the City of North
Charleston. This matter is before the court on
defendants' motion for partial summary judgment.
Specifically, defendants move for partial summary judgment on
the following grounds: (1) defendants deny any constitutional
violation and assert that they are entitled to summary
judgment on the federal cause of action; (2) individual
defendants are entitled to summary judgment on the state law
claim for negligence/gross negligence; and (3) defendants are
entitled to summary judgment for all claims asserted on
behalf of the children. Mem. in Supp. of Mot. for Summ. J. 2.
ably recites the relevant facts, and it is unnecessary to
review the details of the complaint, incident report, and
depositions that constitute the factual record to this point.
In short, on April 3, 2013, defendant Officer Bradley Woods
("Woods") conducted a traffic stop of a vehicle,
which led to a chase that ended with the driver crashing his
car and fleeing on foot. Incident Report, ECF No. 25-2.
Defendant Sergeant Charity Prosser ("Prosser"), who
was Woods's supervisor, obtained information from the
driver's vehicle that it belonged to Jason Drayton (the
"suspect") with the address of 1801 English Street,
Apartment 5. Id.
unit tracked the suspect to 1801 English Street, Apartment 5.
Id. In addition to receiving consent from the
occupant of Apartment 5, a warrant was obtained to search it.
Johnson Dep. 30:6-8, ECF No. 25-11. Thereafter, an officer
went to Apartment 6, which was occupied by Zealous, McDaniel,
and four children, and received confirmation that Apartment 6
shared a common attic space with Apartment 5. Zealous Dep.
27:24-28:1, 76:16-19. In response to Lieutenant Tammy Lynn
Sad's ("Sad") request to search plaintiffs'
attic, Zealous and McDaniel consented. Id. at
2S:2-A, 31:5-11; Sad Dep. 14:6-13, ECF No. 25-7.
approximately 2:00 a.m., defendant Captain Scott Perry
("Perry"), the Commander of the Special Weapons and
Tactics Team ("SWAT"), received a call from
dispatch that they needed to come to the English Street
address. Perry Dep. 11:10-20, ECF No. 25-9. The SWAT team of
eleven officers-defendants Lieutenant Wade Humphries
("Humphries"), Lieutenant Bowman
("Bowman"), Sergeant Rob Kruger
("Kruger"), Sergeant Skip Allen
("Allen"), MPO Winston Williams
("Williams"), PFC Clarence Habersham
("Habersham"), PFC Christopher Gorman
("Gorman"), PFC Charles Champion
("Champion"), PCC Justin Fogle ("Fogle"),
PFC Jeremy Stevens ("Stevens"), and PFC Joshua
Quick ("Quick") (collectively, the "SWAT
team")-arrived at the scene. Id. at 12:9-19,
13:4-8. Before they entered the apartments or conducted the
search, Zealous, McDaniel, and the four children moved from
Apartment 6 to another apartment downstairs. Zealous Dep.
33:21-25; McDaniel Dep. 31:11-13. Thereafter, the SWAT team
entered Apartments 5 and 6, some entering Apartment 5 and
others entering Apartment 6. Perry Dep. 47:12-17.
the SWAT team completed its sweep and search of the
apartments, they cleared the scene. Perry Dep. 34:1-20. At
this time, plaintiffs returned to their apartment, claiming
that it had been "ransacked and a multitude of personal
property items were unnecessarily destroyed and/or
damaged." Am. Compl. ¶ 11, ECF No. 1-1. Sad and
defendant Deputy Chief Coyle Kinard ("Kinard")
observed the condition of the apartment and were upset.
Thereafter, Kinard told Perry to prepare a search warrant for
Apartment 6, so that plaintiffs would have some type of
documentation that the officers had been there. Kinard Dep.
18:2-11, 23:8-13, ECF No. 25-10; Perry Dep. 21:1-2.
magistrate judge's R&R recommends the following
disposition of defendants' motion for partial summary
judgment: (1) grant as to Perry, Humphries, Bowman, Allen,
Williams, Gorman, Champion, Fogle, Stevens, Quick, Woods,
Prosser, MacDonald, Kinard, and the City of North Charleston
with respect to the § 1983 claim; (2) deny as to
defendants Kruger and Habersham; and deny as to the state law
claims brought against the individual defendants as no such
claims are alleged. Both parties filed timely objections to
the R&R, ECF Nos. 33 and 34, to which both parties filed
responses thereto, ECF Nos. 35 and 36. The matter is now ripe
for the court's review.
STANDARDS OF REVIEW
court is charged with conducting a de novo review of
any portion of the R&R to which specific, written objections
are made, and "may accept, reject, or modify, in whole
or in part, " the recommendations contained therein. 28
U.S.C. § 636(b)(1). The magistrate judge's
recommendation does not carry presumptive weight, and it is
the responsibility of this court to make a final
determination. Mathews v. Weber, 423 U.S. 261,
270-71 (1976). A party's failure to object may be treated
as agreement with the conclusions of the magistrate judge.
See Thomas v. Arn, 474 U.S. 140, 150 (1985).
judgment shall be granted "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 248
(1986). "[S]ummary judgment will not lie if the dispute
about a material fact is 'genuine, ' that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id.
"[A]t the summary judgment stage the judge's
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial." Id ...