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Lail v. Horry County South Carolina

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

February 6, 2018

Rodney Lail; James B. Spencer; Irene Santacroce; Estate of Doris E. Holt; Nicholas C. Williamson, Plaintiffs,
v.
Horry County South Carolina; Johnny Morgan, Horry County Police Chief; John Does, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE

         This civil action was filed in April 2011 and is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). The court held a hearing on September 16, 2014 at which time it stayed this matter pending a ruling by the United States Court of Appeals for the Fourth Circuit in a related case, which the plaintiffs asserted could be dispositive of their claims in this case. (See Southern Holdings, Inc. et al v. Horry County et al, C/A No. 4:02-1859-RBH) (Court of Appeals Docket Nos. 14-1666 & 14-1678.) The Fourth Circuit issued two orders on the appeals on November 24, 2014 and June 10, 2016 and the respective mandates were issued February 10, 2015 and July 26, 2016.

         The court then directed the parties to show cause as to why this matter should not be dismissed based on the rulings of the Honorable R. Bryan Harwell, United States District Judge, issued June 11, 2014 and June 18, 2014 in C/A No. 4:02-1859-RBH, which were affirmed by the Fourth Circuit. (ECF No. 250.) In response, the defendants moved for this matter to be dismissed with prejudice as to all claims, arguing that (1) all plaintiffs are collaterally estopped from raising these claims, (2) the claims from the plaintiffs (except for Williamson) are subject to res judicata, and (3) the claims are barred by the statute of limitations.[1] The plaintiffs filed separate responses that included the following arguments: (1) the stay in this matter should continue (a) because they would be seeking an extension of time to file a petition for writ of certiorari with the United States Supreme Court with regard to the rulings by the Fourth Circuit, [2] and (b) to allow them time to present additional evidence to Judge Harwell in C/A No. 4:02-1859-RBH;[3] (2) they would be asking the court to reopen discovery; and (3) they did not have to respond to the merits of dismissing this matter because, allegedly, they were not given notice that the purpose of this response would be for anything other than a status report.[4] (See ECF Nos. 253-54, 258, 266, 267, 268.) The defendants replied. (See ECF Nos. 263, 269.)

         On October 17, 2017, the court lifted the stay and recommended that this matter be dismissed, finding that all the plaintiffs in this matter are collaterally estopped from continuing to repeatedly rehash these claims, and, independently, that res judicata would apply to all the plaintiffs except for Williamson. Following the grant of extension requests, Plaintiffs Holt and Spencer filed objections to the court's recommendation on November 7, 2017[5] (ECF No. 281), to which the defendants responded (ECF No. 283). On December 14, 2017, the assigned district judge vacated the court's Report and Recommendation and recommitted this matter to consider the objections filed by Plaintiffs Spencer and Holt. (ECF No. 288.) The defendants and Plaintiffs Lail and Santacroce filed responses to this order (ECF Nos. 293, 295, 298, & 299) and the defendants also filed a reply (ECF No. 300).

         Upon subsequent careful review of this matter, including the voluminous filings in this matter and in the related civil action, the court reaffirms that this matter should be dismissed. Plaintiffs Holt and Spencer's recently filed objections appear to argue that this matter should not be dismissed because collateral estoppel and res judicata should not be applied to their claims of denial of access to the courts. (ECF No. 281.) Based on the court's review of the lengthy record, this is the first mention of a claim based on an alleged denial of access to the courts. Significantly, at a hearing held in this case on September 27, 2013, the court specifically inquired of the plaintiffs as to what claims remained in the case. Counsel for Spencer and Holt confirmed that a § 1983 claim based on a denial of due process and equal protection was the only remaining federal claim, and the pro se plaintiffs agreed. No plaintiff mentioned any federal constitutional claim based on a denial of access to the courts.

         Further, the operative Complaint was filed in April 2011, and the court finds-even liberally construing the plaintiffs' Complaint, which was filed pro se and never amended after counsel was retained for Spencer and Holt-no such claim was included. (See ECF No. 1.) In support of their position that the 63-page Complaint included such a claim, Plaintiffs Spencer and Holt direct the court to the following excerpt:

The introduction of the fabricated evidence by the Federal Defendants in conjunction with the South Carolina Defendants hiding the FBI-NCIC's criminal misuse in this case and the fabricated test results on the video tapes by the Federal Defendants in conjunction with the South Carolina Defendants, including the concealment and hiding of a police car and video recorder and camera by Horry County Police Chief Defendant Johnny Morgan, resulted in Plaintiffs causes of action in Case No. 4:02-CV-01859-RBH to be undermined to such an extent, that the Plaintiffs Counsels resorted to participating into deceiving the Plaintiffs into a “pseudo-settlement”[] in order to not try the case. Without the introduction of the fabricated evidence and the hiding of non-fabricated evidence by the Federal and South Carolina Defendants, even the “pseudo-settlement”[] would not have been possible.

(Compl. ¶ 76, ECF No. 1 at 41.) Plaintiffs Spencer and Holt also reference paragraphs 36 and 84, which allege that the Horry County Defendants and others altered the videotape of Spencer's arrest and that the Federal Defendants acted in concert with the other defendants in failing to follow FBI procedures. (Id. at 18-19, 43.)

         Contrary to Plaintiffs Spencer and Holt's arguments, the court concludes that these sections do not allege facts sufficient to place the defendants on notice of a denial of access claim or in any way plausibly state such a claim. Therefore, a claim for denial of access to the courts is not properly before the court. See, e.g., Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (holding that a party may not expand its claims to assert new theories in response to summary judgment); White v. Roche Biomedical Labs., Inc., 807 F.Supp. 1212, 1216 (D.S.C. 1992) (noting that “a party is generally not permitted to raise a new claim in response to a motion for summary judgment”).

         Moreover, even if the court could discern such a claim in the Complaint, this claim would clearly be untimely because the factual allegations upon which the plaintiffs rely in support of this “claim” have existed in the plaintiffs' filings since the plaintiffs sought sanctions in the related civil action in February 2007 and since they first began filing motions for reconsideration in June 2007. (See ECF Nos. 283 at 7, 293 at 8-9.) Additionally, as argued by the defendants, such a claim would be barred by collateral estoppel and fail as a matter of law. (See generally ECF Nos. 283 at 3-7, 293 at 3-8.)

         With regard to the claims included in the Complaint that are still pending before the court, [6]the court reissues the findings from its previous Report and Recommendation and concludes that the plaintiffs in this matter are collaterally estopped from continuing to repeatedly rehash these claims for all the reasons succinctly stated by the defendants. (ECF No. 252.) With regard to all of the plaintiffs except for Williamson, res judicata would apply.

         To summarize, plaintiffs' objections to dismissal of this case rest upon a claim they never raised, or upon arguments already repeatedly rejected by the court, or upon claims against parties who are no longer defendants in this matter. Thus, despite ample opportunities, the plaintiffs have failed to show why this action should not be dismissed. Based on the foregoing, the court recommends that this matter be dismissed with prejudice.[7]

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n 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 ...


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