El v. Lippe et al
ORDER granting 37 Motion to Dismiss for Failure to State a Claim; adopting in part 42 Report and Recommendation. Signed by Honorable David C Norton on September 7, 2017.(span, ) (Main Document 55 replaced on 9/7/2017) (jbry, ). Modified on 9/7/2017 to replace with corrected document from chambers (jbry, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Bakha Yawuti El, a/k/a Brandon
Matthew Wean, Diane Turner,
and B. Wade,
Plaintiff Bakha Yawuti El (“plaintiff”), proceeding pro se, filed this action against
three Charleston County Sheriff’s Deputies (“defendants”) alleging a variety of claims
arising out of a traffic stop that occurred on November 29, 2015. 1 This matter is before
the court on United States Magistrate Judge Bristow Marchant’s report and
recommendation (“R&R”) recommending that the court grant in part defendants’ motion
to dismiss, ECF No. 37. Specifically, the R&R recommends the court find that plaintiff
had properly alleged false arrest and excessive force, but that any other potential claims
which plaintiff may have intended be dismissed. ECF No. 42. For the reasons set forth
below, the court adopts in part and rejects in part the R&R, and grants defendants’
motion to dismiss in full. Additionally, the court adopts those portions of the R&R that
are not inconsistent with this order.
Plaintiff originally included the “Ninth Judicial Circuit General Sessions Court,
Charleston County” and Deputy Clerk of Court, Sarah Lippe, in his complaint. These
two Defendants were dismissed by Order of the Court on January 2, 2017. ECF Nos. 30,
The R&R ably recites the relevant facts, and it is unnecessary to review the details
of the factual record to this point. In short, on November 29, 2015, plaintiff was arrested
and charged with the possession of a stolen vehicle, driving under suspension, failure to
appear as required by a uniform traffic citation, use of license plate other than for vehicle
which it was issued, possession of marijuana or hash, violation of open container laws,
and unlawful use of license or fraudulent application of license. ECF No. 42 at 2. On
April 13, 2016, plaintiff filed a complaint against defendants alleging a variety of claims
under 42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina, the matter was referred to United States Magistrate Judge
Bristow Marchant for pretrial matters. On March 10, 2017, the Magistrate Judge issued a
R&R recommending that plaintiff had properly alleged false arrest and excessive force,
but that any other potential claims which plaintiff may have intended should be
dismissed. ECF No. 42. On March 24, 2017, defendants filed objections to the R&R.
ECF No. 44. Specifically, defendants object to the R&R’s conclusion that plaintiff
adequately pled allegations of false arrest and excessive force. Id. at 1. On June 20,
2017, plaintiff filed a document entitled “reply to defendants’ objections” that seems to
function as an objection to the R&R. ECF No. 54. In this objection, plaintiff objects to
the R&R’s conclusion that there was no false arrest, conspiracy, and excessive force
claims. 2 Id. The matter is now ripe for the court’s review.
Plaintiff’s objections misinterpret the R&R, as the R&R concluded that plaintiff
had properly alleged a false arrest and excessive force claim.
II. STANDARDS OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s report to which specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28
U.S.C. § 636(b)(1). The magistrate judge’s recommendation does not carry presumptive
weight, and it is the responsibility of this court to make a final determination. Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). A party’s failure to object may be treated as
agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S.
140, 150 (1985).
Pro Se Plaintiff
Childress appears pro se in this case. Federal district courts are charged with
liberally construing complaints filed by pro se litigants to allow the development of a
potentially meritorious case. See Haines v. Kerner, 404 U.S. 519, 521 (1972). The
requirement of liberal construction does not mean that the court can ignore a clear failure
in the pleadings to allege facts that set forth a cognizable claim, nor does it mean the
court can 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).
Motion to Dismiss
A Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . .
does not resolve contests surrounding the facts, the merits of a claim, or the applicability
of defenses.”). To be legally sufficient, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears certain that the
plaintiff can prove no set of facts that would support his claim and would entitle him to
relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When
considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations
as true and should view the complaint in a light most favorable to the plaintiff.
Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id
Defendants’ first objection concerns the R&R’s conclusion that plaintiff has
alleged a plausible claim for false arrest. Specifically, defendants assert that it is
impossible to accept that plaintiff properly alleged false arrest because the basis of his
allegation is that his non-state-issued “Allodial American National Identification Card”
was sufficient to give notice to defendants that he cannot be arrested. ECF No. 44.
Defendants contend that plaintiff’s refusal to recognize the law does not give him a valid
claim for false arrest, and therefore object to the R&R’s recommendation that a plausible
claim for false arrest can be derived from Plaintiff’s complaint.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons . . . against unreasonable . . . seizures.” U.S. Const. Amend. IV. To demonstrate
false arrest, a plaintiff must show that he was arrested without probable cause. See
Brown v. Gilmore, 278 F.3d 362, 367–68 (4th Cir. 2002). Probable cause “to justify an
arrest means facts and circumstances within the officer's knowledge that are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an offense.”
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
Plaintiff was arrested on November 29, 2015, and charged with a number of
crimes including possession of a stolen vehicle and possession of marijuana. ECF No. 42
at 4. In the relevant part of his complaint, plaintiff alleges only that “Deputy Matthew
Wean took part in and assaulted me during a false arrest, searched and seized my
property against my will without due process.” ECF No. 1-6 at 6–7. The R&R states that
plaintiff has alleged he was unlawfully arrested and thus has stated a claim under the
Fourth Amendment. ECF No. 42 at 2. However, at no point in his complaint does
plaintiff provide any facts to explain what, exactly, defendants did to lead to his false
arrest. In comparison, in Wirtz v. Oconee Cty. Sheriff's Dep’t, 2013 WL 5372795, at *4
(D.S.C. Sept. 24, 2013) the court found that plaintiff had stated a plausible claim of false
arrest where the plaintiff alleged that the defendant police officer falsely planted evidence
and allowed a confidential informant to illegally plant evidence. Here, plaintiff does not
even allege that defendants did not have probable cause to arrest him, let alone allege any
facts to support this assertion. For example, plaintiff does not allege that he was actually
driving a vehicle registered in his name or that he was not, in fact, in possession of
A bald assertion that defendants conducted a false arrest does not rise to the level
of specificity required under the Iqbal/Twombly pleading standard. Because there are no
facts alleged in the complaint to support a finding that plaintiff has stated a plausible
claim for relief on his false arrest claim, the defendants’ motion to dismiss the false arrest
claim is granted.
Defendants’ second objection is in regard to the R&R’s conclusion that plaintiff
plausibly alleged a claim of excessive force. The basis for this objection is defendants’
assertion that plaintiff failed to allege facts that the defendants used more force than
necessary. Additionally, Defendants argue that the claim for excessive force is founded
on plaintiff’s premise that the arrest itself was illegal.
An excessive force claim that “arises in the context of an arrest or investigatory
stop of a free citizen . . . is most properly characterized as one invoking the protections of
the Fourth Amendment,” which guarantees the right to be free from unreasonable
searches and seizures. Graham v. Connor, 490 U.S. 386, 394 (U.S. 1989). A claim of
excessive force by police during an arrest is properly analyzed under the Fourth
Amendment by a determination of whether the officer's conduct was “objectively
reasonable.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (quoting Graham, 490
U.S. at 397). Plaintiff must allege enough facts relevant to the reasonableness of the
officers’ actions to “raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
Plaintiff alleges that Defendant Deputy Wade “assaulted him on a public
roadway” during the course of his arrest. ECF No. 1-6, at 6–7. He has alleged no facts
that would support a plausible claim of objectively unreasonable force. To compare, in
Wiggins v. Quesenberry, 222 F. Supp. 3d 490, 500 (E.D. Va. 2016) the court found that
plaintiff had pled a plausible excessive force claim where he pled that the defendant
officer “yanked” plaintiff by the groin from his seated position in his vehicle and
“forcibly ripped” his foot from the ground, leading to a mandibular fracture of the jaw
and the loss of several teeth. Without any facts pled about what defendants did during
the course of the arrest to constitute excessive force, the court must grant defendants’
motion to dismiss on the excessive force claim.
Finally, defendants object to the R&R’s possible reference to a potential civil
conspiracy allegation. Defendants assert that any potential civil conspiracy allegation is
founded on the false premise that the law does not apply to Plaintiff. A closer look at the
R&R reveals that the R&R states that “Defendant Deputy Wade illegally conspired with
Wean to deprive him of his constitutional rights by participating in the same false arrest
and assault . . . .” ECF 42 at 2.
In reviewing the R&R, the court finds that any civil conspiracy allegation
potentially alluded to was unintentional. The word “conspired” is mentioned only once
in the R&R, and briefly. Additionally, the R&R states that “[l]iberally construed, Plaintiff
has alleged claims against these Defendants for false arrest and excessive force under the
Fourth Amendment.” ECF No. 42 at 4. By not including a civil conspiracy allegation in
the summary of the claims, it is evident that the R&R did not intend to include civil
conspiracy as a plausible or potential allegation.
For the reasons set forth above, the court ADOPTS IN PART AND REJECTS
IN PART the R&R, GRANTING IN FULL defendants’ motion to dismiss, ECF No.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 7, 2017
Charleston, South Carolina
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