Crosby v. South Carolina Department of Public Safety et al

Filing 69

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION ADOPTING 65 Report and Recommendation of Magistrate Judge Bristow Marchant GRANTING IN PART 56 Defendant's Motion for Summary Judgment. Plaintiff's Fourth Cause of Action is DISMISSED as to all Defendants. The Court REMANDS this action to the Berkeley County Court of Common Pleas. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/30/2017. (sshe, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Harley David Crosby,

v.

Civil Action No. 2:15-1455-RMG

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Plaintiff,

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)
)
)

ORDER AND OPINION

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South Carolina Department of Public
)
Safety, South Carolina Highway Patrol, and)
James C. Filyaw,
)
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Defendants.

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This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending Defendants' motion for summary judgment be granted as to Plaintiff's
federal cause ofaction and that the case should then be remanded back to state court for disposition
of Plaintiffs state law claims. For the reasons set forth below, the Court adopts the Report and
Recommendation.

I.

Background

On November 24,2012, Plaintiff and another individual were involved in a traffic accident.
The responding officer, Trooper Towns ofthe South Carolina Highway Patrol, found neither driver
at fault. Plaintiff, for unsubstantiated reasons, believes Trooper Towns and the other driver knew
each other and that Trooper Towns was unwilling to find the other driver at fault for that reason.
Plaintiff testified that he went to Troop 6 headquarters of the South Carolina Highway Patrol
multiple times to complain about Trooper Towns. On February 21, 2013, Plaintiff again went to
Troop 6 headquarters to meet with Defendant Captain James C. Filyaw about the accident. That
meeting became confrontational, as described in detail in the Report and Recommendation (Dkt.

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No. 65 at 3-5). Plaintiff alleges that as he was being escorted from the building, he was shoved
or struck in a stairwell.
Plaintiff, represented by Jay S. Masty, filed the present action on February 12,2015 in the
Berkeley County Court of Common Pleas. He alleges many state law causes of action, including
assault, battery, negligence, and outrage, and violations of his rights under the Fourth Amendment.
(Dkt. No.1-I.) On March 7,2016, counsel moved to withdraw, and on March 22,2016, Plaintiff
consented to his counsel's withdrawal.

With his consent, he filed 22 pages of confidential

attorney-client communications about litigation strategy, consisting of lengthy, angry letters from
Plaintiff and highly professional responses from Mr. Masty. (Dkt. No. 19.) The Court granted a
thirty-day stay for Plaintiff to retain new counsel, and then granted a second thirty-day stay, but,
unsurprisingly, Plaintiff was unable to find new counsel.
Defendants moved for summary judgment on November 18, 2016. Plaintiff responded
with a motion for a sixty-day stay to accommodate a requested FBI investigation, with his 4I-page
"Brief to FBI" attached. After the Court denied his motion for a stay, Plaintiff responded in
opposition to the motion for summary judgment with a I45-page filing. On January 11, 2017, the
Magistrate Judge recommended granting Defendants' motion for summary judgment as to
Plaintiff's federal claim and remand of the remaining state law claims to state court. Plaintiff filed
objections to the Report and Recommendation totaling 108 pages with exhibits.

Plaintiff's

objections focus on personal attacks on the Magistrate Judge and are not responsive to the legal
issues discussed in the Report and Recommendation.

II.

Legal Standard
A.

Report and Recommendation of the Magistrate Judge

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
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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 and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.c. § 636(b)(1).
When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional evidence is committed to its discretion, and
any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002).
"[A ]ttempts to introduce new evidence after the magistrate judge has acted are disfavored," though
the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v.

Jackson, 831 F. Supp. 2d 911, 914 (M.D.N.C. 2010) (listing cases).

B.

Summary Judgment

Summary judgment is appropriate if a party "shows that there is no genuine dispute as to
any material fact" and that the movant is entitled to judgment as a matter oflaw. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities in
favor ofthe nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat 'J Red Cross, 101 F.3d 1005,
1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).

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Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.

Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that
give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do
not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case.
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v.
CSXTransp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

III.

Discussion
Plaintiffs only federal claim is that Captain Filyaw' violated his "constitutional rights in

violation of the Fourth Amendment of the United States Constitution by wrongfully using
excessive and unnecessary force" against him. (Dkt. No. 1-1 ~ 33 (Plaintiffs Fourth Cause of
Action).) "The Fourth Amendment covers only 'searches and seizures.'" County o/Sacramento
v. Lewis, 523 U.S. 833, 843 (1998). To establish a Fourth Amendment excessive force claim,
Plaintiff must have evidence that a "search" or "seizure" occurred. As the Magistrate Judge noted,
Plaintiff has no evidence of a seizure. A seizure of a person occurs when "in view of all the
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave." United States v. Slocumb, 804 F.3d 677, 681 (4th Cir 2015). Here, Plaintiff was
being expelled from the premises-he was not free to stay but was certainly free to leave.
Because there was no search or seizure, the Fourth Amendment is inapplicable. That is not
to say that police violence may give rise to a constitutional claim only where there is a search or
seizure. '" [O]utside the context of a seizure, ... a person injured as a result of police misconduct

I Plaintiffs identical claims against two state agencies, the South Carolina Department of Public
Safety and the South Carolina Highway Patrol, are barred by the Eleventh Amendment. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89,99 (1984).

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may prosecute a substantive due process claim under section 1983. '" Id. at 844 (quoting Evans v.
Avery, 100 F.3d 1033, 1036 (1st Cir. 1996)). Plaintiff, however, pleads no substantive due process
claim. He only pleads a Fourth Amendment claim. Certainly, pro se complaints are construed
liberally, and identification of the wrong constitutional amendment as the basis for an excessive
force claim under § 1983 would be too technical a fault to warrant dismissal of a pro se claim.
The complaint in this action, however, is not entitled to the liberal construction afforded pro se
pleadings because it was drafted by, signed by, and filed by a lawyer representing Plaintiff. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that a pro se complaint "must be held to less
stringent standards than formal pleadings drafted by lawyers" (internal quotation marks omitted
and emphasis added)). Defendant released his attorney over a year after his attorney commenced
this action. A litigant cannot obtain liberal construction of his professionally drafted complaint
simply by firing his lawyer after a year oflitigation.
There is, therefore, no genuine dispute that Defendants are entitled to judgment as a matter
of law regarding the only federal claim actually pleaded in the complaint. Defendant's remaining
claims are state law claims. When the federal claims presented in a case originally filed in state
court are dismissed before trial, any remaining state law claims generally should be remanded back
to state court for resolution. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Lovern v.
Edwards, 190 F.3d 648,655 (4th Cir. 1999) ("Put simply, the Constitution does not contemplate
the federal judiciary deciding issues of state law among non-diverse litigants."). The Court
therefore agrees with the Magistrate Judge that his case should be remanded to state court.

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation (Dkt. No.

65) as the Order ofthe Court and GRANTS IN PART Defendant's motion for summary judgment.

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Plaintiff's Fourth Cause of Action is DISMISSED as to all Defendants. The Court REMANDS
this action to the Berkeley County Court of Common Pleas.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
January 3 ~ 2017
Charleston, South Carolina

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