Jane Doe 202a v. McGowan et al

Filing 171

ORDER AND OPINION adopting 166 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting in part and denying in part 70 Motion for Partial Summary Judgment; granting in part and denying in part 117 Mot ion for Summary Judgment. Defendants' Motion for Summary Judgment as to Certain Claims based on Collateral Estoppel (Dkt. No. 117) is GRANTED as to claims regarding a warrantless entry into Plaintiff's home on the second, third and four th causes of action, and GRANTED as to the Plaintiff's thirteenth and fourteenth causes of action. The Motion is DENIED as to the twelfth cause of action. Defendants' Partial Motion for Summary Judgment on the Merits (Dkt. No. 70) is GRA NTED as to Plaintiff's § 1983 claims in her second, fourth and thirteenth causes of action, GRANTED as to Plaintiff's § 1983 claims against Defendants Wohlleb and Kouris in the tenth cause of action, and DENIED as to Plaintiff's § 1983 claims against Defendant McGowan in the tenth cause of action. Signed by Honorable Richard M Gergel on 9/8/2018.(ssam, )

IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Parker Meyer,
Plaintiff,
V.

Leigh Ann McGowan, individually;
Charles Francis Wohlleb, individually;
Anthony M. Doxey, individually;
Michael Kouris, individually;
City of North Charleston;
Defendants.

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Case No 2:16-cv-00777-RMG

ORDER AND OPINION

This matter is before the Court on the Report and Recommendation ("R & R") of ·the
Magistrate Judge (Dkt. No. 166) recommending that the Court grant in part and deny in part
Defendants' Partial Motion for Summary Judgment (Dkt. No. 70) and that the Court grant in part
and deny in part Defendants' Motion for Summary Judgment as to Certain Claims based on
Collateral Estoppel (Dkt. No. 117). 1 Plaintiff filed objections to the R & R, and Defendants filed
a reply. (Dkt. Nos. 167, 169.) For the reasons set forth below, the Court adopts the R & Ras the
order of the Court.

I.

Background and Relevant Facts
The Court adopts the relevant facts as outlined in the R. & R. (Dkt. No. 166 at 1 - 7.) 2 In

brief, Plaintiff alleges that on March 27, 2014, Defendants McGowan, Doxey and Wohlleb entered
her house without a warrant and then proceeded to assault and arrest her in her own home. Plaintiff

1

There is an additional R & R (Dkt. No. 168) on Defendants' Motion for Summary Judgment on All
Remaining Claims (Dkt. No. 120). The deadline for Defendants ' Reply to Plaintiffs Objections (Dkt. No.
170) to that R & R is September 13, 2018.
2

Plaintiffs objections to the factual findings in the R & Rare discussed with the relevant legal arguments.

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further alleges that Defendant Kouris, also an officer, transported Plaintiff to jail and defamed the
Plaintiff by telling jail staff that she had abused her mother, who has dementia.
II.

Legal Standard
A. Summary Judgment
To prevail on a motion for summary judgment, the movant must demonstrate that there is

no genuine issue of any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying
the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file,
together with the affidavits, if any, which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The Court will construe all inferences and ambiguities against the
movant and in favor of the non-moving party. US. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-moving party's position is
insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 4 77
U.S. 242, 252 (1986). However, an issue of material fact is genuine ifthe evidence is such that a
reasonable jury could return a verdict in favor of the non-movant. Id. at 257.
"When the moving party has carried its burden under Rule 56( c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts." Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with 'specific facts showing that there is a genuine issue
for trial."' Id. at 587. "Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue for trial."' Id. (quoting First Nat '! Bank

ofAriz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

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B. Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270 - 71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). In
the absence of any specific objections, "a district court need not conduct a de nova 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." See Diamondv. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (internal quotation omitted).
Plaintiff filed objections to certain recommendations in the R & R, as outlined below, and
therefore those portions of the R & Rare reviewed de nova. (Dkt. No. 167.) All other portions of
the R & Rare reviewed for clear error. Defendants have not filed objections.

III.

Discussion
A. Collateral Estoppel
The Magistrate Judge found that two prior rulings precluded Plaintiff from litigating

already decided issues. First, a prior state court action, Jane Doe 202 v. City ofNorth Charleston

et al., 2014-CP-10-4591 ("the state case"), brought by Plaintiffs mother, Jane Doe, against the
same Defendants as the case here. Second, this Court's Order on a Motion to Dismiss in the
Plaintiffs companion case, Meyer v. Cannon et al., 2: 16-cv-530-RMG-MGB ("the 530 case").

I. Prior State Court Action

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The Magistrate Judge determined that the state case precluded re-litigation of the issue of
warrantless entry into her mother's home in Plaintiffs second (warrantless entry), third (trespass),
fourth (invasion of privacy) and thirteenth(§ 1983 against the City of North Charleston) causes of
action. (Dkt. No. 166 at 13; Dkt. No. 54.) The Magistrate Judge concluded the state case did not
preclude other issues in those causes of action, such as the alleged warrantless entry into Plaintiffs
bedroom, stating that "the remaining claims brought under these causes of action are not
precluded." (Dkt. No. 166 at 13.) The Magistrate Judge held that the state case did not preclude
Plaintiffs defamation claim in her twelfth cause of action. (Dkt. No. 166 at 13.)
As the Magistrate Judge correctly found, federal courts use state law to determine
preclusion where the prior judgment was from a state proceeding. Ayers v. Cont'! Cas. Co. , 2007
WL 1960613, *4 (N.D.W. Va. 2007) (citation omitted). Under South Carolina state law, the party
asserting collateral estoppel must show that the issue of fact or law in the present lawsuit was: " (1)
actually litigated in the prior action; (2) directly determined in the prior action; and (3) necessary
to support the prior judgment." Carolina Renewal, Inc. v. SC Dep 't ofTransp., 385 S.C. 550,
554 (S.C. Ct. App. 2009). All three elements of collateral estoppel are met in this case. In the
state case, the Plaintiffs mother asserted§ 1983 claims against the same Defendants as the current
case, and a following a two week trial the state jury reached a verdict that the Plaintiffs mother
failed to prove that Defendants made a warrantless entry into her house. (Dkt. No. 80-1 at 5, 7, 9.)
Plaintiff in her objections seemingly argues that these issues were not actually litigated or
directly determined in the prior action. Plaintiff argues that the "state court" applied an "incorrect
standard for warrantless entry" and that issues in the prior cases were not "identical" because this
Court has "permitted a broader scope of discovery" and in general " [Defendant] McGowan's
credibility was not tested . .. ." (Dkt. No 167 at 5 - 6.)

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Neither of these arguments are persuasive. First, the state court and Magistrate Judge
applied the correct standard for warrantless entry in a civil action. While in a criminal proceeding
the government must prove that entry was reasonable, in a § 1983 action and other civil cases, it
is the plaintiffs burden to establish that she was deprived of a right. See Lee v. City of Richmond,
Va. , 100 F. Supp. 3d 528, 535 (E.D. Va. 2015), aff'd sub nom. Lee v. Bevington, 647 F. App' x 275
(4th Cir. 2016) ("Thus, to prevail, [the plaintiff] must establish that he was ' deprived of a right
secured by the Constitution or laws of the United States, and that the alleged deprivation was
committed under color of state law."') (citation omitted). Second, the issue precluded was actually
litigated. To begin with, the R & R only recommended precluding the issue that was decided in
the prior action; namely, the entry into the home. All other issues, such as entry into the bedroom,
are not precluded. Further, the issue was undoubtedly litigated and decided in the prior action after
a two week trial in which the jury returned a verdict form on this precise issue. Plaintiffs argument
that this case involves broader discovery and an opportunity to test Defendant McGowan's
testimony is unavailing. See Doe v. SC Bd. of Educ., No. 8:14-CV-02061-BHH, 2016 WL
1274041 , at *5 (D.S.C. Mar. 31 , 2016) (finding that issues were actually litigated where plaintiff
argued that their attorney in the prior state case "was prohibited from using a line a [of] questioning
to impeach Defendants.").
Finally, Plaintiff objects that she did not have any control over the state case and therefore
did not have an opportunity to actually litigate the issue. (Dkt. No. 167 at 7.) While the traditional
test for collateral estoppel required the same parties, modem courts allow a defendant to assert
collateral estoppel against a non-party "when the party against whom estoppel is asserted had a
full and fair opportunity to previously litigate the issue." Carolina Renewal, Inc. v. S. C. Dep 't of
Transp., 385 S.C. 550, 555, 684 S.E.2d 779, 782 (Ct. App. 2009).

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Plaintiff's Memorandum of Law to the Magistrate Judge and Objections to this Court both
make the conclusory statement that "plaintiff had zero control over her mother's [state] case."
(Dkt. No. 167 at 7.) However, the Magistrate Judge correctly found that Plaintiff had a full and
fair opportunity to previously litigate the issue. Plaintiff chose the same counsel in this case as the
state case, was the source of all facts for the prior case, was generally the person with the "most
knowledge" of her mother's affairs, was the only fact witness in the state case, and controlled her
mother's finances during the majority of the pendency of the state case. (Dkt. No. 17-1; 17-3 at 2
- 5.) Further, the Plaintiff's interests here and her mother's in the state case are identical; both
argue that the police entered their home without a warrant. Carolina Renewal, Inc. v. S. C. Dep 't

ofTransp., 385 S.C. 550, 555 - 556, 684 S.E.2d 779, 782 (Ct. App. 2009) (finding contractor had
"full and fair" opportunity to litigate issue in prior action brought by its sole officer and shareholder
where contractor was not a party but their interests were "identical"). Therefore, Plaintiff had a
"full and fair" opportunity to litigate the issue in the state case and collateral estoppel applies here.
The Court therefore grants summary judgment to the Defendants solely on the issue of warrantless
entry to the house in Plaintiff's second, third, fourth and thirteenth causes of action.
Neither Plaintiff nor Defendants objected to the Court's finding that Plaintiff's twelfth
cause of action for defamation is not precluded because the state case disposed of the issue with a
summary order lacking any analysis. (Dkt. No. 166 at 13 -14.) The Court agrees with the R & R,
and the twelfth cause of action is not precluded.

2. 530 Case Order on Motion to Dismiss
Neither Plaintiff nor Defendants objected to the Magistrate Judge's recommendation that
the this Court's order in the companion 530 case precludes re-litigation of Plaintiff's fourteenth
cause of action for defamation. The cause of action is related to emails sent by Defendants'

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attorney in the state case. The Magistrate Judge further found that an absolute litigation privilege
extended to the litigants, the Defendants here. The Court agrees with the Magistrate Judge ' s
analysis and the Defendants are entitled to summary judgment on the fourteenth cause of action.
B. Motion on the Merits

The Magistrate Judge recommended granting summary judgment on Plaintiffs second
cause of action under§ 1983 for warrantless entry, fourth cause of action under§ 1983 for invasion
of privacy, tenth cause of action under § 1983 for false imprisonment as to Defendants Wohlleb
and Kouris, and thirteenth cause of action under § 1983 against the City of North Charleston. (Dkt.
No. 166 at 16 - 26.) The Magistrate Judge recommended that the summary judgment not be
granted on Plaintiffs tenth cause of action under§ 1983 against Defendant McGowan. (Dkt. No.
166 at 23 - 25 .)

1. Second Cause ofAction for Warrantless Entry
Plaintiff first objects extensively to the R & R' s statement of the facts, arguing that the
Magistrate Judge failed to construe all inferences and ambiguities "in favor of the non-moving
party." (Dkt. No. 167 at 2-3.) To begin with, Plaintiff argues over a variety of non-material
facts, such as whether the bag outside Plaintiffs was a purse or a gardening bag, the location of
Plaintiffs shoes outside the house, or whether the light was on or off in her car when the officers
arrived. (Dkt. No. 167 at 2 - 3.) These non-material facts do not impact the Court' s grant of
summary judgment. See Fed. R. Civ. P. 56(a).
Plaintiff also focuses on the nature of the blood that the Defendant officers saw on
Plaintiffs bag outside her house, and insists that any blood on the bag was dried, rather than fresh
as alleged by the officers. (Dkt. No. 167 at 3 - 5, 8-9.) Plaintiff argues that since she alleges the

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blood was dried, the Defendants had no reason to believe anyone was in danger of imminent injury
and therefore acted unreasonably in entering the house without a warrant. Plaintiff is incorrect.
First, there is substantial uncontroverted evidence in the record that there was blood on the
bag. The Plaintiffs expert found that there was blood on the bag. (Dkt. No. 79-4.) Furthermore,
Plaintiff conceded at a deposition that it was possible that during the night of March 27, 2014, the
bag had "something that look[ed] like blood on it." (Dkt. No. 70-3.) Finally, the R & R made no
determination regarding whether the bag actually had blood on it. Instead, the Magistrate Judge's
discussed what the Defendant officers perceived when outside the home on March 27, 2014, during
a time period at which Plaintiff was asleep. There is therefore no dispute of fact in the record that
the officers saw a substance that reasonably looked like blood on the Plaintiffs bag when they
arrived at the home. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (in analyzing Fourth
Amendment claims, courts "analyze this question from the perspective '"of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight."') (citation omitted).
Plaintiff further objected that the Defendant officer's warrantless entry into both the home
and eventually her bedroom was unreasonable. (Dkt. No. 167 at 7 - 10.) As the Magistrate Judge
correctly held, "law enforcement officers may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from imminent injury." Brigham City,

Utah v. Stuart, 547 U.S. 398, 403 (2006). In determining whether an officer's entry into a home
is justified under this doctrine, "we ask whether the circumstances known to [the officer] would
create an 'objectively reasonable belief that an emergency existed that required immediate entry
to render assistance or prevent harm to persons or property within."' Hunsberger v. Wood, 570
F.3d 546, 555 (4th Cir. 2009) (citation omitted). "To determine whether a law enforcement officer

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faced an emergency that justified acting without a warrant, [the court] looks to the totality of
circumstances." Missouri v. McNeely, 569 U.S . 141 , 149 (2013).
The Defendant officer' s acted in an objectively reasonable manner when they entered the
home without a warrant. The Defendants were aware of the nature of a 911 call when they arrived
on the

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and Defendant McGowan testified in a deposition that the dispatcher told her that a

female had been pounding on the door to a home and screaming, and that the woman was possibly
"the daughter that resided in the house." (Dkt. No. 70-1 at 4.) The Defendants further saw a bag
that seemed to have blood on it that had been left unattended in the yard. (Dkt. No. 70-1 at 6 - 7.)
These factors would lead an objectively reasonable officer to believe that there may be an ongoing
emergency in the house.

The Plaintiff argues that once the Defendants spoke to the Plaintiffs

mother they should have left the house. (Dkt. No. 167 at 10.) However, again, it would be
reasonable for the officers to want to check on the person they had reason to believe may be in
danger. Namely, a "daughter that resided in the house. " Finally, as the Magistrate Judge correctly
noted, Plaintiffs allegations regarding the actual arrest in her bedroom after Defendant McGowan
entered the room supports her wrongful arrest claim rather than her warrantless entry claim.
Plaintiff cites to Mincey v. Arizona, 43 7 U.S. 385 (1978), to argue that Defendants in this
case exceeded the reasonable scope of their warrantless entry since such a search must be "strictly
circumscribed by the exigencies which justify its initiation." Id. at 393 (finding that warrantless
search was unreasonable where police initiated a four-day search of an apartment).

While

Mincey ' s facts are distinguishable, the Court finds that the Defendants here followed its
exhortation to make sure their search was tailored to the exigencies of the situation.

The

Defendants here had an objectively reasonable concern that a woman, likely a daughter who lived

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in the house, was distressed and possibly bleeding and it was therefore reasonable for them to
remain in the home until they discovered that the Plaintiff was safe.
Plaintiff additionally objects to the Magistrate Judge' s recommendation that the
Defendants are entitled to qualified immunity. (Dkt. No. 167 at 10 - 11.) "Qualified immunity
shields government officials from civil liability insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known."

Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).

Plaintiff argues that qualified immunity is not warranted here because the Defendants

allegedly "fabricated evidence." (Dkt. No. 167 at 10.) However, outside of Plaintiff's conclusory
assertions, there is no evidence that the Defendants fabricated evidence. Instead, Plaintiff seems
to argue that since the Court must construe all ambiguities in favor of the Plaintiff, any assertion
to the contrary by the Defendants (e.g. , that there was fresh blood on the bag) is "fabricated
evidence." (Dkt. No. 167 at 5, 9.) That is simply not the case, and instead Defendants have
demonstrated that they did not violate any clearly established statutory or constitutional right, and
indeed were acting reasonably. Summary judgment therefore is granted on the Plaintiff's second
cause of action under§ 1983 for warrantless entry.

2. Fourth Cause ofAction for Invasion of Privacy
Plaintiff objects to the Magistrate Judge' s recommendation that the Court grant summary
judgment on the Plaintiff's fourth cause of action for invasion of privacy. (Dkt. No. 167 at 11.)
Plaintiff's invasion of privacy cause of action is largely duplicative of her warrantless entry claim,
and implicates the same rights. See Payton v. N Y. , 445 U.S. 573, 588 (1980) (holding that invasion
of privacy and warrantless entry rights "implicate the same interest in preserving the privacy and
the sanctity of the home, and justify the same level of constitutional protection" under the Fourth

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Amendment). Therefore, for the same reasons as stated above, the Defendants are entitled to
summary judgment on Plaintiff's fourth cause of action under§ 1983.

3. Tenth Cause ofAction for False Imprisonment
Neither Plaintiff nor Defendants objected to the Magistrate Judge ' s recommendation that
the this Court grant summary judgment on Plaintiff's tenth cause of action for false imprisonment
against Defendants Wohlleb and Kouris and deny summary judgment as to Defendant McGowan.
To establish a § 1983 claim based on a Fourth Amendment violation for false arrest or false
imprisonment, a plaintiff must show that a seizure was effected without probable cause. See

Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014). There is a dispute of material fact regarding
what occurred prior to Plaintiff being arrested in her bedroom, and therefore Defendant McGowan
is not entitled to summary judgment on the tenth cause of action. Regarding Defendants Wohlleb
and Kouris, the Magistrate Judge was correct that they cannot be held liable for relying on
Defendant McGowan ' s decision to arrest Plaintiff. See Mattox v. City of Beaufort, No. 9:14-cv0384 DCN, 2015 WL 4488036, at *10 (D.S.C. July 22, 2015) (officer's actions were objectively
reasonable when she helped a fellow sworn officer serve a facially valid arrest warrant even though
the fellow sworn officer had falsified facts to establish probable cause to obtain the warrant).
Therefore, summary judgment is granted on the tenth cause of action as to Defendants Wohlleb
and Kouris, and denied as to Defendant McGowan.

4. Thirteenth Cause ofAction under § 1983 against the City
Plaintiff objects to the Magistrate Judge' s recommendation that the Court grant summary
judgement on the Plaintiff's claim that the City of North Charleston maintained a policy and
practice of allowing unconstitutional warrantless entries into residences. A city "is only liable
under section 1983 if it causes such a deprivation through an official policy or custom." Carter v.

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Morris, 164 F.3d 215, 218 (4th Cir. 1999) citing Monell v. Dep't ofSoc. Servs., 436 U.S. 658, 690-

91, (1978). Plaintiff failed to demonstrate a deprivation of rights based on a warrantless entry, and
therefore this claim fails. Defendants are therefore entitled to summary judgment on Plaintiffs
thirteenth cause of action.

IV.

Conclusion

For the reasons set forth above, this Court adopts the R & R as the order of the Court.
Plaintiffs objections are OVERRULED. Defendants' Motion for Summary Judgment as to
Certain Claims based on Collateral Estoppel (Dkt. No. 117) is GRANTED as to claims regarding
a warrantless entry into Plaintiffs home on the second, third and fourth causes of action, and
GRANTED as to the Plaintiffs thirteenth and fourteenth causes of action.

The Motion is

DENIED as to the twelfth cause of action. Defendants' Partial Motion for Summary Judgment

on the Merits (Dkt. No. 70) is GRANTED as to Plaintiffs§ 1983 claims in her second, fourth and
thirteenth causes of action, GRANTED as to Plaintiffs § 1983 claims against Defendants Wohlleb
and Kouris in the tenth cause of action, and DENIED as to Plaintiffs § 1983 claims against
Defendant McGowan in the tenth cause of action.
AND IT IS SO ORDERED.

United States District Court Judge
September ~ , 2018
Charleston, South Carolina

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