United States District Court, D. South Carolina, Rock Hill Division
Ekoko K. Avoki; Francisco K. Avoki, Plaintiffs,
City of Chester, South Carolina; Police of Chester, South Carolina; PTL Covington; Doe I-XXX, Defendants.
ORDER AND REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
self-represented plaintiffs, Ekoko K. Avoki and Francisco K.
Avoki, filed this civil rights action in forma pauperis under
28 U.S.C. § 1915. This matter is before the court
pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.) for a Report and Recommendation on the
parties' cross motions for summary judgment. (ECF Nos.
304, 327.) Pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the court advised the Avokis of the summary
judgment and dismissal procedures and the possible
consequences if they failed to respond adequately to the
defendants' motion. (ECF No. 306.) The parties each filed
a response in opposition to the motions (ECF Nos. 313, 334),
and a reply (ECF Nos. 318, 336). Additionally, the court
directed the parties to brief the issue of whether the court
should stay or hold in abeyance the parties' motions as
to the plaintiffs' Fourth Amendment claims. (See ECF Nos.
340, 349, 354.) Having reviewed the record presented and the
applicable law, the court finds that the Avokis' motion
for summary judgment should be denied in part and the
defendants' motion for summary judgment be granted in
part. The court also finds the parties' motions should be
held in abeyance as to the plaintiffs' Fourth Amendment
and retaliation claims.
following facts are either undisputed, or are taken in the
light most favorable to the non-moving party to the extent
they find support in the record. The Avokis, a married
couple, formerly resided in an owner-occupied house with
their five children in Chester, South Carolina. (Pl.'s
Mot. Summ. J., ECF No. 327 at 2.) This dispute arises out of
the sale of the Avokis' house by the City of Chester at
public auction, during which the Avokis claim the City
violated their right to due process by failing to give them
sufficient notice of the sale. (1st Am. Compl. ¶¶
19-25, ECF No. 10 at 8-9.) In 2014 or 2015, the Avokis and the
City of Chester disagreed over the proper valuation of the
Avokis' house for property tax purposes. (Id.
¶¶ 18-19, ECF No. 10 at 7-8.) At some point, the
City of Chester determined that the Avokis were delinquent in
paying their property taxes. On July 10, 2015, the City of
Chester sent Francisco Avoki notice that the property would
be sold at a public auction on November 10, 2015 if the
delinquent taxes were not paid by August 28, 2015.
(Defs.' Mot. Summ. J., Watkins Aff. ¶¶ 3-4, ECF
No. 304-2 at 1-2; Ex. A, ECF No. 304-3 at 2.) The notice was
sent through the United States Postal Service via certified
mail with delivery restricted to the addressee, Francisco
Avoki. (Defs.' Mot. Summ. J., Ex. A., ECF No. 304-3 at
2.) The receipt for the notice indicates that the notice was
received and signed for by Francisco Avoki. (Id.)
The City also advertised the tax sale of the Avokis'
property in a local newspaper twice in October. (Pls.'
Resp. Opp'n Summ. J., F. Avoki Aff. ¶ 2, ECF No.
313-1 at 40.)
December 15, 2015, the Avokis' property was sold at
public auction to Kenneth Marsh for $1, 031.36. (Defs.' Mot.
Summ. J., Watkins Aff. ¶ 6, ECF No. 304-2 at 2; Ex. C.,
ECF No. 304-5 at 2.) The City of Chester deeded the property
to Marsh on April 15, 2016. (Pls.' Resp. Opp'n Summ.
J., Exs. 3(a) & 3(c), ECF No. 313-1 at 32, 36-38.) The
Avokis bought the property back from Marsh on July 20,
2016. (Id., Ex 3(b), ECF No. 313-1 at
Avokis filed this lawsuit on May 2, 2017. By order dated
November 20, 2017, the court construed the Second Amended
Complaint as asserting claims pursuant to 42 U.S.C. §
1983 for denial of due process in violation of the Fourteenth
Amendment, false arrest and illegal search and seizure in
violation of the Fourth Amendment, and
Summary Judgment Standard
judgment is appropriate only if the moving party “shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to
particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
the evidence of the non-moving party is to be believed and
all justifiable inferences must be drawn in favor of the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). However, “[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id. at 248.
moving party has the burden of proving that summary judgment
is appropriate. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322.
Further, while the federal court is charged with liberally
construing a complaint filed by a pro se litigant to allow
the development of a potentially meritorious case, see, e.g.,
Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of
liberal construction does not mean that the court can ignore
a clear failure in the pleadings to allege facts which set
forth a federal claim, nor can the court assume the existence
of a genuine issue of material fact where none exists. Weller
v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Motions for Summary JUDGMENT
Fourteenth Amendment Claim
parties both move for summary judgment as to the Avokis'
claim pursuant to 42 U.S.C. § 1983 that the City of
Chester violated their right to due process by failing to
provide them with sufficient notice of the tax sale. As
explained below, the court concludes that summary judgment
should be granted in favor of the City of Chester as to this
action under 42 U.S.C. § 1983 allows “a party who
has been deprived of a federal right under the color of state
law to seek relief.” City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a
claim under § 1983, a plaintiff must allege: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
Process Clause of the Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const.
amend. XIV. The Due Process Clause provides two areas of
constitutional protection-procedural due process and
substantive due process. “To state a procedural due
process violation, a plaintiff must (1) identify a protected
liberty or property interest and (2) demonstrate deprivation
of that interest without due process of law.” Prieto v.
Clarke, 780 F.3d 245, 248 (4th Cir. 2015). Based on their
briefing, the parties appear to agree that the Avokis'
claim concerns procedural due process because the issue here
is whether the Avokis were given sufficient notice of the tax
sale. See Snider Intern. Corp. v. Town of Forest Heights,
Md., 739 F.3d 140, 146 (4th Cir. 2014) (“[P]rocedural
due process requires fair notice of impending state action