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Avoki v. City of Chester

United States District Court, D. South Carolina, Rock Hill Division

August 27, 2019

Ekoko K. Avoki; Francisco K. Avoki, Plaintiffs,
City of Chester, South Carolina; Police of Chester, South Carolina; PTL Covington; Doe I-XXX, Defendants.



         The 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.[1]


         The 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.)[2] 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.)

         On December 15, 2015, the Avokis' property was sold at public auction to Kenneth Marsh for $1, 031.36.[3] (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.[4] (Id., Ex 3(b), ECF No. 313-1 at 34-35.)

         The 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 retaliation.[5]


         A. Summary Judgment Standard

         Summary 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).

         In 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.

         The 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).

         B. Motions for Summary JUDGMENT

         1. Fourteenth Amendment Claim

         The 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 claim.

         A legal 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).

         The Due 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 and ...

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