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Fulton v. Nisbet

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

November 1, 2017

Leroy Fulton, Plaintiff,
v.
Christopher Nisbet, in his individual capacity, Defendant.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on the Report and Recommendation of the Magistrate Judge, recommending denial of Defendant's motion for summary judgment. For the reasons set forth below, the Court adopts in part and declines to adopt in part the Report and Recommendation. The Court declines to adopt the Report and Recommendation only insofar as it addresses state-law claims Plaintiff has since abandoned. The Court otherwise fully adopts the Report and Recommendation.

         I. Background

         Plaintiff alleges that on that on August 25, 2015, he was awoken by John Mauldin knocking on his door, who told Plaintiff that he was there to repossess a vehicle. Plaintiff told him to leave his property. Plaintiff testified that Mr. Mauldin did not present any paperwork or documentation, and that he informed Mr. Mauldin that he did not have permission to repossess Plaintiffs vehicle. Plaintiff also testified that he then entered his vehicle. At that time, Mr. Mauldin called 911 and told the dispatcher that Plaintiff had pointed a handgun at him. Plaintiff testified that he never pointed a gun at Mr. Mauldin.

         While Mr. Mauldin was on the phone with 911 dispatch, Defendant, who was then the Coroner for Dorchester County, South Carolina, approached Mr. Mauldin, identified himself as the Coroner, and offered to assist Mr. Mauldin with the repossession. Mr. Mauldin told Defendant that Plaintiff had pointed a gun at him. Although Mr. Maudlin had already contacted police, Defendant called Captain Douglas Wright of the Summerville Police Department and was recorded telling him "there's a repo guy across the street from my house at the damn, damn niggers that live across the street and they there trying to repo his truck and they pulled a gun on him and all kind of shit over here." (Dkt. No. 44-5.)[1]

         Plaintiff then left his house in his vehicle, and the Defendant, in his official county vehicle, followed the Plaintiff and activated his vehicle's blue lights and siren. Plaintiff testified that when he stopped, Defendant pointed his county-issued firearm him and told him to "get out of the car you little black mother fucker." (Dkt. No. 44-4.) Police officers then arrived on the scene. They found Defendant wearing pajama pants, holding a gun, and smelling of alcohol. (Dkt. No. 44-15.) Officers directed Defendant to drop his weapon, which he did after a delay of about 15 to 20 seconds. (Id.) No parties were charged with any crime that night. Responding officers noted that the repossession company had been trying to repossess Plaintiffs vehicle for eight months "and there could be a vendetta against the owner." (Id.) Ultimately, Defendant was charged with misconduct in office and breach of the peace. He pleaded no contest to breach of the peace and the misconduct in office charge was dropped nolle prosequi. The Governor suspended him from office after his indictment, and he resigned on February 3, 2016.

         On October 27, 2015, Plaintiff filed the present action, asserting claims under 42 U.S.C. § 1983 and South Carolina law. Plaintiff alleges that Defendant conducted an unlawful and unreasonable stop and seizure and used excessive force in violation of Plaintiffs constitutional rights, falsely imprisoned him, and committed assault. Plaintiff seeks monetary damages. On May 9, 2017, Defendant moved for summary judgment. On October 13, 2017, the Magistrate Judge recommended denial of Defendant's motion for summary judgment. Both parties have filed objections to the Report and Recommendation. In his objections, Plaintiff abandons his state-law claims and seeks leave to amend the complaint to remove those claims.

         I. Legal Standard

         A. Report and Recommendation of the Magistrate Judge

         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).

         When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010) (listing cases).

         B. Summary Judgment

         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. ...


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