Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parson v. Miles

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

March 27, 2018

Arnold Parson, Jr., Plaintiff,
v.
Darren Miles, Danny Lee Herring, John Doe 1-18, Jane Doe 1-2, and County of Marion, Defendants.

          ORDER

          R. Bryan Harwell United States District Judge

         Plaintiff Arnold Parson, Jr., proceeding pro se, filed this action in this Court pursuant to 42 U.S.C. § 1983 against the above-captioned Defendants. The matter is before the Court for consideration of the parties' objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Kaymani D. West, who recommends (1) granting the motion to dismiss filed by Defendant Danny Lee Herring and (2) granting in part and denying in part the motion to dismiss filed by Defendants Darren Miles, John Doe 1-18, Jane Doe 1-2, and the County of Marion.[1] See ECF Nos. 95, 102, & 103.

         Legal Standards

          I. Review of the R & R

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         II. Federal Rule of Civil Procedure 12(b)(1)

When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.

Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (internal citations omitted); see also Balfour Beatty Infrastructure, Inc. v. Mayor & City Council of Baltimore, 855 F.3d 247, 251 (4th Cir. 2017) (“A Rule 12(b)(1) motion to dismiss should be granted only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” (internal quotation marks omitted)).

         III. Federal Rule of Civil Procedure 12(b)(6)

It is established that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). [The Fourth Circuit] ha[s] recognized that “facial plausibility is established once . . . the complaint's factual allegations produce an inference . . . strong enough to nudge the plaintiff's claims ‘across the line from conceivable to plausible.'” See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570). In assessing the sufficiency of a complaint, [a court must] assume as true all its well-pleaded facts and draw all reasonable inferences in favor of the plaintiff. Id. at 253. Thus, to satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft “to allow a court, drawing on ‘judicial experience and common sense, ' to infer ‘more than the mere possibility'” of that which is alleged. Id. at 256 (quoting Iqbal, 556 U.S. at 679).

Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017). When considering a Rule 12(b)(6) motion, a court “may properly take judicial notice of matters of public record.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         Discussion[2]

         In 2013, the special referee for Marion County entered an order and judgment of foreclosure and sale for property located at 3546 Quail Roost Road in Mullins, South Carolina; the order identified Plaintiff Arnold Parson, Jr. as one of the defendants in the foreclosure action. See ECF Nos. 45-1, 45-2, 45-3. In 2014 and 2015, the South Carolina Court of Appeals and the South Carolina Supreme Court rejected Plaintiff's appeal of the foreclosure action. See ECF Nos. 45-4 & 45-5. Also in 2014 and 2015, the special referee issued a writ of assistance identifying Plaintiff and the 3546 Quail Roost Road property and commanding the Sheriff of Marion County to “go to and enter upon said land and . . . eject and remove [Plaintiff]” and “all personal property of [Plaintiff].” See ECF Nos. 45-6, 45-7, 45-8, 45-9, & 45-10. Plaintiff was served with a copy of the writ of assistance on October 1, 2015. See ECF No. 45-10. On October 30, 2015, Plaintiff appealed the writ of assistance, and both the South Carolina Court of Appeals and the South Carolina Supreme Court rejected the appeal.[3] See ECF No. 45-11; see also ECF No. 103-2 at pp. 1-5. On November 2, 2015, the Marion County Sheriff's Office executed the writ of assistance at Plaintiff's residence at 3546 Quail Roost Road, and Plaintiff was arrested.[4] See ECF Nos. 49-2 & 49-3.

         Then, on March 15, 2017, Plaintiff filed this § 1983 action in this Court alleging his constitutional rights were violated when “Marion County Special Opts Officers” unlawfully entered his property at 3546 Quail Roost Road on November 2, 2015 (during a state of emergency), searched his house, arrested him with excessive force, took him to jail, and caused his family's personal belongings to be destroyed. See ECF No. 1; Second Amended Complaint [ECF No. 24].[5] Plaintiff sues the following Defendants: Danny Lee Herring, Darren Miles, Marion County, as well as John Does 1-18 and Jane Does 1-2 (“the Doe Defendants”). Plaintiff alleges that Defendant Herring is the owner of a construction company, that Defendant Miles is the “Lieutenant for [the] Marion County Special Opts Unit, ” and that the Doe Defendants are “unknown Marion County Special Opts Officers.” See Sec. Am. Compl. at ¶¶ 5, 15-16.

         Defendant Herring has filed a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure and has submitted court documents from the state foreclosure proceedings, and Defendants Miles, Marion County, and the Does (collectively, “the Remaining Defendants”) have filed a motion to dismiss pursuant to Rule 12(b)(6). See ECF Nos. 36 & 45. Plaintiff has filed responses in opposition to both motions and has submitted documents related to his November 2, 2015 arrest. See ECF Nos. 49, 77, 84, & 85. The Magistrate Judge has entered an R & R recommending that the Court grant Defendant Herring's motion and that the Court grant in part and deny in part the Remaining Defendants' motion. See R & R [ECF No. 95] at p. 22. The Remaining Defendants and Plaintiff have filed objections to the R & R, and Plaintiff has filed a reply to the Remaining Defendants' objections. See ECF Nos. 102, 103, 104, & 107.

         I. Defendant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.