Washington v. Aiken County Sheriffs Office et al
ORDER AND OPINION adopting the 9 Report and Recommendation, dismissing all of Plaintiff's claims without prejudice and without issuance and service of process, and denying as moot 15 Plaintiff's second motion to proceed in forma pauperis. Signed by Honorable J. Michelle Childs on 7/18/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Aiken County Sheriffs Office; Inv. Brad
Wertz; Philism Newman; Marcus
Washington; Carol Thomas,
Civil Action No.:1:16-cv-001673-JMC
ORDER AND OPINION
This matter is before the court on review of Magistrate Judge Paige Gossett’s Report and
Recommendation (“Report”) filed June 15, 2016. (ECF No. 9), recommending that Plaintiff’s
claim be summarily dismissed without prejudice and without issuance of service of process.
Plaintiff timely objects. (ECF No. 11.)
For the following reasons the court ADOPTS the Magistrate Judge’s Report (ECF No.
9), DISMISSES Plaintiff’s § 1983 Complaint without prejudice and without issuance and
service of process (ECF No. 1), and DENIES AS MOOT Plaintiff’s second motion to proceed
in forma pauperis. (ECF No. 15.)
On May 23, 2016, Plaintiff filed his Complaint against Defendants and motioned for
leave to proceed in forma pauperis. (ECF Nos. 1, 2.) On June 15, 2016, Plaintiff’s motion to
proceed in forma pauperis was granted. (ECF No. 8.) Also on June 15, 2016, the Magistrate
Judge filed her Report and Recommendation. (ECF No. 9.) The parties were advised of their
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right to file objections to the Report. (Id.) Plaintiff has filed timely objections. (ECF No. 11.) On
October 6, 2016, Plaintiff filed a second motion to proceed in forma pauperis. (ECF No. 15.)
II. FACTUAL BACKGROUND
Plaintiff alleges that shortly after a shooting that allegedly took place on July 1, 2012,
Defendant Aiken County Sheriff’s Office was contacted by Co-Defendants Marcus Washington,
Carol Thomas, and Philisty (captioned as Philism) Newman. (ECF No. 1 at 2, ECF No. 11-2.)
Plaintiff alleges that Wertz and fellow officers initially found no evidence beyond bullet holes,
but that on July 23, 2012, Defendant Newman approached Defendant Wertz with what she
claimed to be a bullet she had found in her tub. (ECF No. 1.) Plaintiff indicates that on the
following day, Defendant Wertz obtained an arrest warrant for five counts of attempted murder
despite contradictory evidence from Newman, Thomas, and Marcus Washington, both in
reference to contradicting their own statements and those of their respective Co-Defendants.
(ECF No. 1 at 3, ECF No. 11-3.)
Plaintiff was later indicted in Georgia on October 9, 2012, along with Marcus
Washington for a second shooting that occurred in Richmond County on July 5, 2012. (ECF No.
1 at 2.) Plaintiff claims that during his trial in Georgia the trial judge allowed Defendants
Newman, Thomas, and Marcus Washington to make statements in connection with the shooting
occurring in South Carolina. Furthermore, in connection with an alleged shooting in Richmond
County, Georgia, that eventually resulted in Plaintiff’s initial conviction (ECF No. 1), Plaintiff
alleges that Defendants Marcus Washington, Carol Thomas, and Philisty (captioned as Philism)
Newman, all South Carolina residents, made false and conflicting statements to the Aiken
County Sheriff’s Department and Investigator Brad Wertz of said Department. (ECF No. 1 at 2.)
Plaintiff alleges that this evidence was “extremely harmful” and that the district attorney
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attempted to use this information to secure a guilty verdict. (ECF No. 1.) Plaintiff indicates that
on July 16, 2015, a Georgia appellate court issued a decision agreeing that Plaintiff’s right to due
process was violated, and remanded the case for clarification as to why certain evidence was
admitted. (ECF No. 1 at 3.)
Upon review of the relevant Georgia state cases referenced by
Plaintiff in his objections (ECF No. 11-1 at 2), a Georgia appellate court on the date above
specified did rule in Plaintiff’s favor that the trial court had abused its discretion in the manner in
which it declared a mistrial, but specifically chose not to rule on Plaintiff’s contention that the
trial court had improperly allowed evidence of bad acts into the trial. Washington v. State
(Washington I), 775 S.E. 2d. 719, 731 (Ga. Ct. App. 2015). Since this holding and the Magistrate
Judge’s initial recommendation, a Georgia trial court’s initial determination that Plaintiff’s
felony murder charge should be declared a mistrial without review of the jury verdict has been
ruled as an abuse of discretion and his indictment for felony murder in Georgia has been waived
for double-jeopardy concerns. Washington v. State (Washington II), 792 S.E. 2d. 479 (Ga. Ct.
App. 2016). In Washington II, the court, despite ruling in Plaintiff’s favor on his double jeopardy
claim against his retrial for murder, ruled against Plaintiff on his claim of improper admittance of
evidence of prior bad acts, stating that “[Plaintiff] has failed to identify precisely which evidence
he now challenges.” Washington II, 792 S.E. 2d. at 487 (quoting to Washington I, 775 S.E. 2d. at
734 (McFadden, J., dissenting)).
Plaintiff also alleges that, at some point prior to his Georgia indictment, the Aiken
County Sheriff’s Office repeatedly targeted him with frivolous charges (that were subsequently
dropped), and racially motivated traffic stops. (ECF No. 1.)
LEGAL STANDARD AND ANALYSIS
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
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Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
The court is charged with making a de novo determination of those portions of the Report to
which specific objections are made. Diamond v. Colonial Life & Acc. Ins. Co., 46 F.3d 310, 315
(4th Cir. 2005).
Plaintiff requests relief under a civil rights claim pursuant to 42 U.S.C. § 1983 for
defamation, false arrest, violation of his constitutional and civil rights and for deliberate
indifference amounting to a violation of the Eighth Amendment. (ECF No. 1 at 4.) Plaintiff cites
as evidence contradictory and “extremely harmful” witness statements as well as a recent
Georgia appellate court decision which recognized Plaintiff was deprived of due process rights
and was not given a fair trial. (ECF No. 1 at 4.) Plaintiff requests relief in the form of monetary
damages, attorney’s fees and court costs, a restraining order against Aiken County, and an arrest
warrant against Defendants. (ECF No. 1 at 4.)
Plaintiff is a pro se litigant filing a Complaint pursuant to 28 U.S.C. §§ 1915, 1915A, and
the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996). Pro se
complaints such as this one must be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106
(1976). These complaints must be held to a lower standard than “formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
Claims Against Investigator Wertz
To succeed on a § 1983 false arrest claim, Plaintiff must demonstrate that Defendant
Wertz could not have reasonably believed that he had probable cause to arrest. Smith v. Reddy,
101 F.3d 351, 356 (4th Cir. 1996). Probable cause is formed when there is a “fair probability”
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under the totality of the circumstances that criminal activity has occurred. Illinois v. Gates, 462
U.S. 213, 246 (1983). When applying for an arrest warrant, an officer’s actions are measured
against how a reasonable person, provided with the same information of the officer at that time,
would act. Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017). A failure to obtain sufficient
information prior to pursuing a warrant is enough to find against an officer for false arrest. Id.
However, according to the Magistrate Judge, Plaintiff has failed to sufficiently plead facts
indicating that Investigator Wertz lacked probable cause in seeking the arrest warrant. (ECF No.
Plaintiff objects to dismissal of this claim on the grounds police had previously been told
there was no physical evidence initially beyond bullet holes, that it was not until 22 days later
that Investigator Wertz was given a bullet by Co-Defendant Philisty Newman, and that Wertz’
request for a warrant (ECF No. 11-3) was based solely on Philisty’s account of the events
generally and failed to consider contradictory evidence. (ECF No. 11.) The court agrees with the
Magistrate Judge that mere awareness of contradictory evidence is insufficient to show that
Wertz lacked probable cause at the time of his request for a warrant. (ECF No. 9, p. 6.) This
objection is insufficient to warrant de novo review of this issue by the trial court pursuant to Rule
72(b)(3) of the Federal Rules of Civil Procedure, as Plaintiff has failed to make specific
objections to the Report (ECF No. 9) and instead merely restates his initial complaint.
Therefore, the court must “only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond, 46 F.3d at 315 (quoting an advisory
committee note in Fed. R. Civ. P. 72). Upon review of the record, no clear error was found, the
Magistrate Judge’s Report as to the claims against Investigator Wertz is ADOPTED and
Plaintiff’s claims against Investigator Wertz are DISMISSED without prejudice.
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Claims Against Aiken County Sheriff’s Office
Plaintiff’s initial Complaint requesting a restraining order against the Aiken County
Sheriff’s Office “failed to plead any facts.” (ECF No. 9, p. 7.) Furthermore, to the extent that
Plaintiff is attempting to make a claim under respondeat superior for the alleged claimable
actions of Inv. Wertz, the Sheriff’s Office is not amenable through respondeat superior to suit
under § 1983, but only amenable to suit as a “person” in its own right for constitutional
violations where said violations are the “official policy” of the municipal government or
governmental unit. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
This claim may also be evaluated as Plaintiff’s “deliberate indifference” claim (see ECF
No. 9, p. 8-9) for the violation of the Eighth Amendment under § 1983 for failure to care for a
pretrial detainee or inmate’s health and safety. See Estelle, 429 U.S. at 104-05 (deliberate
indifference to an inmate’s illness or injury constitutes a cause of action); see also Helling v.
McKinney, 509 U.S. 25, 35–36 (1993) (deliberate indifference to activity of fellow inmates
endangering health and safety also constitutes a cause of action). Here again, the Magistrate
Judge recommends dismissal on the grounds that Plaintiff’s claim is “devoid of any facts relating
to a deprivation of Plaintiff’s health or safety.” (ECF No. 9, p. 9.)
Plaintiff has timely objected and has provided alleged facts. (ECF No. 11, p. 2.)
Allegations against the Aiken County Sheriff’s Office include a history of “discrimination and
harassment” following the false arrest, as well as the bringing of numerous charges, which
Plaintiff alleges are frivolous, and none of which has resulted in conviction, and a DUI stop that
Plaintiff believes was motivated due to stereotypes about his race and age contrasting with the
make of his car. (ECF No. 11, p. 2.) He alleges that the Department has been aided by local
media and used the jail report news book to damage his reputation, making it more difficult to
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pursue employment or education. (ECF No. 11, p. 2.) He further alleges that the Department’s
“pursuit of false statements” (see defamation claim below) directly led to his detainment.
While Plaintiff has alleged facts in this case, Plaintiff has failed to sufficiently answer the
Magistrate Judge’s recommendation of dismissal on the grounds that the Aiken County Sheriff’s
Office did not commit these actions in their official capacity rather than as individual officers
and civilians. For these reasons, Plaintiff has failed to sufficiently object pursuant to Rule
72(b)(3) of the Federal Rules of Civil Procedure, and is therefore not entitled to de novo review
of this issue.
Under the appropriate “clear error” review, Diamond, 46 F.3d at 315, no clear error was
found, the Magistrate Judge’s Report is ADOPTED, and Plaintiff’s claims against the Aiken
County Sheriff’s Office are DISMISSED without prejudice.
To the extent Plaintiff is attempting to clarify that his initial intent was to bring § 1983
claims for Eighth Amendment violations against Newman, Washington, and Thomas, such
claims are DISMISSED without prejudice since Plaintiff does not allege that Newman,
Washington, or Thomas are acting “under the color” of state law. 42 U.S.C. § 1983; (ECF No.
Claims Against Newman, Washington, and Thomas
Plaintiff alleges Defendants Philisty Newman, Marcus Washington, and Carol Thomas
gave contradictory statements to law enforcement informally, in formal police reports, and on the
witness stand. He claims these contradictory statements and alleged perjuries contributed to his
arrest and initial conviction. The court construes this allegation as an attempt to state a claim for
defamation under state law. The Magistrate Judge reports that Plaintiff’s Complaint is
insufficiently pled and recommends dismissal; Plaintiff timely objects. (ECF Nos. 9 & 11.)
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South Carolina’s defamation law1 requires a showing of (1) a false defamatory statement;
(2) unprivileged publication to a third party; (3) fault on the part of the publisher; and (4) special
harm or the actionability of the statement irrespective of special harm. (ECF No. 9, p. 8.) While
Plaintiff’s objections partially answer the Magistrate Judge’s initial recommendation that his
claim be dismissed under South Carolina law by asserting facts and providing evidence, Plaintiff
has not alleged sufficiently specific facts to overcome the Magistrate Judge’s reasoning for
dismissing his claim. (ECF Nos. 9 & 11.)
In his objections, Plaintiff alleges general damages of injury to reputation and mental
suffering, and asserts that he has shown, through a number of court transcripts and other
documents, that witnesses’ statements contradicted both their own previous statements and the
statements of their fellow witnesses. (ECF Nos. 11-2, 11-3, 11-11 through 11-17.) However, he
has failed to allege which statements were false and defamatory and the unprivileged manner in
which they were allegedly published or communicated, their only known “publication” being
read or spoken in court or to a police officer for the purpose of producing a police report, both of
which are, for this purpose, privileged. He is therefore not entitled to de novo review pursuant to
Rule 72(b)(3) of the Federal Rules of Civil Procedure.
Here the Magistrate Judge has not committed clear error, see Diamond, 43 F.3d at 315.
The Magistrate Judge’s Report is ADOPTED, and Plaintiff’s defamation claims against Philisty
Newman, Marcus Washington, and Carol Thomas are DISMISSED without prejudice.
Plaintiff’s Second Motion to Proceed in forma pauperis
Plaintiff’s second motion to proceed in forma pauperis (ECF No. 15) is moot as the
Magistrate Judge has already granted Plaintiff’s motion of the same nature on June 15, 2016.
The defamation laws of South Carolina and Georgia are nearly identical; where there is no conflict of law, there is
no need for a conflict of law analysis. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 838 (1985) (Stevens, J.,
concurring in part and dissenting in part)
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(ECF No. 8.)
For the above reasons, the court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 9), DISMISSES all of Plaintiff’s claims without prejudice and
without issuance and service of process, and DENIES AS MOOT Plaintiff’s second motion to
proceed in forma pauperis. (ECF No. 15.)
IT IS SO ORDERED.
United States District Judge
July 18, 2017
Columbia, South Carolina
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