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Scott v. Town of Kingstree

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

July 25, 2018

Larry Scott, Plaintiff,
Town of Kingstree, Kingstree Police Department and Joseph Shaw, Defendants.



         Larry Scott (“Plaintiff”) brought this action against the Town of Kingstree, Kingstree Police Department, and Joseph Shaw (collectively “Defendants”)[1] claiming violation of his constitutional rights pursuant to 42 U.S.C. § 1983.[2] ECF No. 14, Am. Compl. This matter is before the court on Defendants' motion for summary judgment filed December 11, 2017. ECF No. 37. On December 21, 2017, 2017, Plaintiff filed a response in opposition. ECF No. 42. Defendants filed a reply. ECF No. 43.

         On May 11, 2018, the Magistrate Judge issued a Report and Recommendation, recommending Defendants' motion for summary judgment be granted as to the federal claim under § 1983, and the remaining state law claims be remanded to state court. ECF No. 44. 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 May 25, 2018, both parties filed objections to the Report. ECF Nos. 45, 46. Defendants filed a reply on June 8, 2018. ECF No. 48. This matter is ripe for the court's review.

         I. 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).

         II. Discussion

         Plaintiff has alleged five causes of action against Defendants in his Amended Complaint: (1) negligence and negligent supervision; (2) false arrest and imprisonment under state law; (3) intentional infliction of emotional distress (“IIED”); (4) malice under state law; and (5) a federal claim for false arrest and imprisonment and malicious prosecution under § 1983. ECF No. 14. The Report[3] recommends dismissal of Plaintiff's federal claim because Plaintiff's indictment by the Grand Jury on state charges of kidnapping, armed robbery, and possession of a weapon during the commission of a violent crime establishes probable cause for the arrest and prosecution, defeating Plaintiff's claim. ECF No. 44 at 8. The Magistrate Judge also recommends remand of Plaintiff's four[4] state law claims. Id. at 14. As Plaintiff has conceded the sole proper party for his state law claims is the Town of Kingstree (see ECF No. 42 at 9), the Report recommends dismissal of Kingstree Police Department[5] and Joseph Shaw, individually. Id. at 16. Plaintiff has also agreed to dismiss his state law claim for malicious prosecution as the South Carolina Tort Claims Act (“SCTCA”) bars the cause of action, and the Report recommends such a dismissal. ECF Nos. 42 at 11; 44 at 16.

         a. Federal § 1983 claim

         Plaintiff objects to the recommended dismissal of his § 1983 claim, arguing Defendant Shaw swore to a false statement in the arrest warrant affidavit and therefore no probable cause ever existed to arrest Plaintiff. ECF No. 45. He contends a question of fact exists as to whether Shaw made a false statement in the arrest affidavit and therefore the issuance of the arrest warrant by a magistrate and the grand jury indictment do not foreclose his claim. Plaintiff also argues the existence of a warrant is not an absolute bar to a claim of false imprisonment under Franks v. Delaware, 438 U.S. 154 (1978), and that proceedings were terminated in his favor when the prosecutor nolle prossed his charges. Id. at 4.

         Defendants replied to Plaintiff's objections, arguing Plaintiff cannot rebut the presumption of probable cause established by the grand jury indictment, as there is no evidence Shaw testified before the grand jury at all, much less provided false information. ECF No. 48. In addition, they contend the Magistrate Judge was not required to undertake an analysis pursuant to Franks v. Delaware, 438 U.S. 154 (1978), as Plaintiff argues, because determinations of probable cause by the grand jury, state trial judge and appeals court broke the chain of causation between Plaintiff's alleged unlawful arrest and his conviction. Id. at 3-5. Plaintiff's § 1983 claim is characterized as one for false arrest/imprisonment and malicious prosecution. As recognized by the Magistrate Judge, the false arrest claim ceased, at the latest, by the time of the grand jury indictment.[6] See ECF No. 44. After the indictment, Plaintiff's § 1983 claim can only be for malicious prosecution.[7]

         “The Fourth Amendment prohibits law enforcement officers from making unreasonable seizures, and the seizure of an individual effected without probable cause is unreasonable.” Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 183 (4th Cir. 1996). To establish a Fourth Amendment claim for “malicious prosecution, ” Plaintiff must demonstrate Defendant “seized the plaintiff pursuant to legal process that was not supported by probable cause” and that the criminal proceedings terminated in his favor.[8] Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012). A grand jury indictment, “fair on its face . . . conclusively determines the existence of probable cause.” Id. However, “a grand jury's decision to indict will not shield a police officer who deliberately supplied misleading information that influenced the decision.” Massey v. Ojaniit, 759 F.3d 343, 356-57 (4th Cir. 2014). False statements or omissions violate the Fourth Amendment only if they are material, or necessary to the finding of probable cause, and “made deliberately or with a reckless disregard for the truth.” Id. at 357. “While intervening acts of other participants in the criminal justice system, such as an exercise of prosecutorial discretion or the return of an indictment, generally insulate a police officer from liability, officers may be liable to a wrongfully indicted defendant when they have, e.g., lied to or misled the prosecutor.” Id. at 357 (internal citations omitted).

         Plaintiff argues Shaw made a false statement that Plaintiff was identified on the video “deliberately or with reckless disregard for the truth” to obtain the arrest warrant in violation of the Fourth Amendment. Franks, 438 U.S. at 155; Miller v. Prince George County, MD., 475 F.3d 621, 631 (4th Cir. 2007).[9] However, even if Plaintiff survives the first hurdle of showing the arrest warrant was issued due to the deliberate or reckless false statement, there are still several other instances in which probable cause was found: the grand jury indictment, the prosecutor's decision to charge, the trial judge's denial of a directed verdict, and the South Carolina Court of Appeals' affirmance of his conviction. Plaintiff argues the grand jury indictment was tainted by the submission of the false statement, and therefore does not foreclose his right to pursue a Fourth Amendment claim. However, he has presented no evidence the grand jury indictment was actually influenced by the alleged false statement in the affidavit. Plaintiff notes “the testimony before the grand jury would have been whether they agreed or disagreed with the information contained in the arrest warrant, ” citing Shaw's deposition at 130:17-22. However, this does not prove what was actually testified to before the grand jury, and Shaw's deposition merely shows agreement, in a general sense, that the grand jury “gives an indictment” “that is either agreeing or disagreeing with [the] arrest warrant.” ECF No. 42-1 at 34, Shaw dep. 130:19-22. Plaintiff's arguments in a brief to the court regarding what the grand jury testimony would have been do not meet his burden of showing false testimony was submitted to the grand jury and was the basis for his indictment. See, e.g., ECF No. 45 at 3 (“[T]he probable cause presented to the grand jury would have been the statement that Plaintiff was positively identified in video surveillance, an untrue statement.” (emphasis added)). Further, other testimony could have been elicited in the grand jury proceedings to support the warrant. The unsupported arguments provided by Plaintiff regarding what “would have” happened at the grand jury simply are not enough to create a genuine issue of fact. See Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (“The burden of rebutting the presumption of probable cause requires the plaintiff to establish what occurred in the grand jury, and to further establish that those circumstances warrant a finding of misconduct sufficient to erode the premise that the grand jury acts judicially.”) As noted by the Magistrate Judge, this failure means Plaintiff is unable to avoid summary judgment on either a false arrest or malicious prosecution[10] claim.

         Further, even assuming the grand jury indictment was tainted by the alleged false statement, the trial judge's denial of a directed verdict, the jury verdict of guilty, and the Appeals Court's affirmance of that verdict all establish probable cause for Plaintiff's arrest. Officer Neville agreed in his testimony at trial the photographs from the store video bore similarities to the mug shots of Plaintiff and his co-defendant, but he could not testify the mug shot photograph and the photograph from the robbery depicted the same individuals. ECF No. 37-5 at 142-144, Trial Tr. at 199:14-19; 201:8-16. Despite this testimony, Plaintiff's directed verdict motion was denied and the jury found him guilty. Any alleged improper taint in the warrant or grand jury indictment was cured by these subsequent actions.

         As Plaintiff has failed to raise an issue of material fact regarding the grand jury indictment (or other points in the process where probable cause was found), summary judgment for Defendants is appropriate. ...

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