Brooks v. Zorn et al

Filing 140

ORDER denying 128 Motion to Set Aside Judgment; adopting 130 Report and Recommendation, granting 72 Motion for Summary Judgment; and granting in part and denying in part 73 Motion for Summary Judgment. Signed by Honorable David C Norton on August 29, 2024. (juwh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ALTONY BROOKS,

)
)
Plaintiff,
)
)
vs.
)
)
SCOTT ALLAN ZORN, St. Stephen Police; )
and JOHN DOE, in his individual capacity, )
)
Defendants.
)
____________________________________)

No. 2:22-cv-00739-DCN-MHC
ORDER

This matter is before the court on Magistrate Judge Molly H. Cherry’s report and
recommendation (“R&R”), ECF No. 130, on resolution of three motions, ECF Nos. 72;
73; 110. Namely, the magistrate judge denied plaintiff Altony Brooks’s (“Brooks”)
motion to reopen discovery for purposes of identifying and serving process on defendant
John Doe (“Officer Doe”), ECF No. 110, 1 and recommended that the court grant in part
and deny in part defendant Scott Allan Zorn’s (“Officer Zorn”) motion for summary
judgment, ECF No. 73, and grant Officer Doe’s motion for summary judgment and
dismiss him from the case, ECF No. 72. ECF No. 130, R&R. For the reasons set forth
below, the court adopts the R&R in full. The court thereafter considers Brooks’s motion
to set aside this court’s prior order, ECF No.114. ECF No. 128. For the reasons set forth
below, the court denies that motion.

1

Brooks’s motion to reopen discovery is a nondispositive motion. See Fed. R.
Civ. P. 72(a) (defining a nondispositive motion as “a pretrial matter not dispositive of a
claim or defense of a party”); Legette v. Rollins, 2022 WL 16574339, at *2 (D.S.C. Nov.
1, 2022) (“Generally, discovery motions are nondispositive”). Nondispositive motions
may be disposed of by a magistrate judge. Consequently, while the R&R ruled on
Brooks’s motion to reopen discovery, this court need not review that conclusion.
1

I. BACKGROUND
The R&R ably recites the facts of the case, and the parties do not object to the
R&R’s recitation thereof. Therefore, the court will only briefly summarize material facts
as they appear in the R&R for the purpose of aiding an understanding of the court’s legal
analysis. 2
This dispute arises from a March 3, 2020 traffic stop. Brooks alleges that Officer
Zorn, an officer with the St. Stephen Police Department (“SSPD”), pulled Brooks over
for a traffic stop and demanded he get out of the car and on the ground. A contentious
discussion ensued, and the parties disagree over what exactly happened during the
discussion. Officer Zorn alleges that Brooks failed to comply with his directives,
whereas Brooks alleges that he was concerned about his own safety such that he was
trying to comply in ways that ensured his survival through the encounter. Ultimately,
Officer Zorn attempted to use his taser to get Brooks to comply. However, the taser
prongs stuck in Brooks’s jacket, and Brooks simply pulled them out. Brooks then fled to
a nearby wooded area and eventually returned to his vehicle. Thereafter, Officer Zorn
engaged his blue lights and followed Brooks home from the traffic stop. Brooks alleges
that, before returning home, he first drove toward the SSPD precinct to speak to the
mayor. However, when he did not see the mayor’s car, Brooks drove home.
Upon arriving at home, Brooks went into the house and informed his father that
the police had followed him home and were outside harassing him. Around the time that
Brooks ran into his home, Officer Zorn had drawn his service weapon and, apparently,

2

The court dispenses with citations throughout and notes that unless the court
states otherwise or cites to another source, the facts are gleaned from the complaint, ECF
No. 1, and the R&R, ECF No. 130.
2

had radioed the Berkeley County Sheriff’s Office (“BCSO”) for backup. BSCO officers,
which included Officer Doe, arrived at Brooks’s home. Officers Doe and Zorn (the
“Officers”) allegedly told Brooks that they were coming into the house. Brooks told
them that they did not have a search warrant, and, in response, the Officers allegedly said
they did not need one. Brooks then told them that if they came into his home, Brooks
would “defend himself at all means.” Compl. ¶ 6. Officer Zorn then allegedly stated he
would shoot into the home if Brooks did not come outside. Brooks’s father instructed
Brooks to go outside. Brooks subsequently exited onto the porch, and BCSO officers
grabbed him by the arm and put him in a police cruiser. The BCSO officers thereafter
took Brooks to the Hill-Finklea Detention Center, where he stayed for several days.
Brooks, proceeding pro se and in forma pauperis, filed a complaint against BCSO,
Officer Doe, SSPD, and Officer Zorn on March 7, 2022. ECF No. 1, Compl. Pursuant to
28 U.S.C. § 636(b)(1)(A) and (B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C), all pretrial
proceedings in this case were referred to Magistrate Judge Cherry. Brooks is currently
residing at the Hill-Finklea Detention Center on unrelated charges which occurred in or
around May 2023. On June 20, 2023, this court issued an order adopting the magistrate
judge’s recommendation to grant in part and deny in part defendants BCSO and Officer
Doe’s motion to dismiss, ECF No. 19, and adopting the recommendation to grant SSPD’s
motion to dismiss, ECF No. 21. ECF No. 64. Consequently, upon that order, defendants
BCSO and SSPD were dismissed from the case. Id. The court also dismissed Brooks’s
§ 1983 claim against Officer Doe in his official capacity. Id. The only remaining claims
are those against Officer Zorn and the remaining § 1983 claim against Officer Doe in his
individual capacity. Id.

3

On September 20, 2023, Officer Doe filed a motion for summary judgment, ECF
No. 72, and Officer Zorn also filed a motion for summary judgment, ECF No. 73. On
December 5, 2023, Brooks filed a response in opposition to Officer Doe’s motion, ECF
No. 101, to which Officer Doe replied on December 12, 2023, ECF No. 105. On April
30, 2024, Brooks filed a declaration, ECF No. 117, asserting that he never received a
copy of Officer Zorn’s motion for summary judgment that had been filed on September
20, 2023. ECF No. 119. The magistrate judge noted that she had twice communicated to
Brooks about the pending motions for summary judgment and further indicated that
Brooks had discussed his excessive force claim against Office Zorn in his response to
Officer Doe’s motion. Id. As such, she observed that Brooks had likely already
responded to Officer Zorn’s motion. Id. Nevertheless, she directed Officer Zorn to resend the motion for summary judgment to Brooks and she extended the deadline for
Brooks’s response. Id. On May 9, 2024, Brooks filed a response in opposition to Officer
Zorn’s motion, ECF No. 123, and filed a second response in opposition to that motion on
May 20, 2024, ECF No. 127.
On May 24, 2024, Magistrate Judge Cherry issued a report and recommendation
which recommended that the court grant Officer Doe’s motion for summary judgment
and dismiss Officer Doe from the case. ECF No. 130, R&R. She also recommended that
the court grant in part and deny in part Officer Zorn’s motion for summary judgment. Id.
On June 7, 2024, Brooks objected to the R&R, ECF No. 136, and he filed an amended
objection on July 1, 2024, ECF No. 138. The Officers neither objected to the R&R nor
responded to Brooks’s objections and the time to do so has since expired.

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On May 23, 2024, Brooks filed a motion to set aside judgment. ECF No. 128.
Responses were due by June 6, 2024, and the court received no responses. As such, the
motions are fully briefed and ripe for review.
II. STANDARD
A. Pro Se Litigants
Plaintiff is proceeding pro se in this case. Pro se complaints and petitions should
be construed liberally by this court and are held to a less stringent standard than those
drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A
federal district court is charged with liberally construing a complaint or petition filed by a
pro se litigant to allow the development of a potentially meritorious case. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980). Liberal construction, however, does not mean that the court
can ignore a clear failure in the pleading to allege facts that set forth a cognizable claim.
See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990).
B. Order on R&R
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270–71 (1976). The court may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge . . . or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).

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However, in the absence of a timely filed, specific objection, the court reviews the
R&R only for clear error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (citation omitted). Furthermore, “[a] party’s general objections are
not sufficient to challenge a magistrate judge’s findings.” Greene v. Quest Diagnostics
Clinical Lab’ys, Inc., 455 F. Supp. 2d 483, 488 (D.S.C. 2006) (citation omitted). When a
party’s objections are directed to strictly legal issues “and no factual issues are
challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982) (citation omitted). Analogously, de novo review is
unnecessary when a party makes general and conclusory objections without directing the
court’s attention to a specific error in a magistrate judge’s proposed findings. Id.
C. Summary Judgment
Summary judgment shall be granted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the

6

evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court should view the evidence in the light most
favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
D. Motion to Reconsider
A motion for reconsideration is generally raised via Rules 59 and 60 of the
Federal Rules of Civil Procedure. Rule 59(e) allows a party to file a motion to alter or
amend a judgment. Fed. R. Civ. P. 59(e). The rule provides an “extraordinary remedy
which should be used sparingly.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396,
403 (4th Cir. 1998) (internal quotation marks and citation omitted). When a motion to
reconsider brought pursuant to Rule 59(e) is untimely, courts construe the motion as one
filed under Rule 60(b). See Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 412
(4th Cir. 2010); see also J.C. v. Fairfax Cnty. Pub. Schs., 2023 WL 5032784, at *1 n.1
(4th Cir. Aug. 8, 2023) (explaining that plaintiffs’ motion was filed more than 28 days
after the district court entered its dismissal order, so the motion is properly construed
under Fed. R. Civ. P. 60(b)); Wriglesworth v. Esper, 765 F. App’x 6 (4th Cir. 2019) (per
curiam) (same). Accordingly, Brooks filed his motion for reconsideration as a Rule 60(b)
motion.
Federal Rule of Civil Procedure 60(b) states that,
the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);

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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
III. DISCUSSION
The court begins by considering the two dispositive motions considered by
Magistrate Judge Cherry: Officer Doe’s motion for summary judgment, ECF No. 72, and
Officer Zorn’s motion for summary judgment, ECF No. 73. The court thereafter
considers Brooks’s motion to set aside final judgment. ECF No. 128.
A. Motions for Summary Judgment
Brooks does not object to the R&R’s recommendation to grant summary
judgment as to Officer Doe. See generally ECF No. 138. In the absence of a timely
filed, specific objection, the court reviews the R&R only for clear error. Diamond, 416
F.3d at 315. A review of the record for clear error indicates that the R&R accurately
summarized this case and the applicable law. Accordingly, the court adopts the
magistrate judge’s R&R as to Officer Doe, grants Officer Doe’s motion for summary
judgment, and dismisses him from the case.
The magistrate judge recommended that the court grant summary judgment as to
Brooks’s § 1983 claim for false arrest/imprisonment and his state law claims for false
arrest and abuse of power he brings against Officer Zorn. R&R at 15, 27–32. The
magistrate judge also recommended that the court deny summary judgment as to
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Brooks’s § 1983 claim for excessive force and Brooks’s state law claim for assault and
battery that he brings against Officer Zorn. R&R at 15, 19–27, 30–31.
Initially, the court notes that neither party objects to the R&R’s recommendation
to grant summary judgment as to Brooks’s abuse of power claim brought against Officer
Zorn and neither party objects to the R&R’s recommendation to deny summary judgment
as to Brooks’s § 1983 excessive force claim and his state law assault and battery claim
brought against Officer Zorn. See generally ECF No. 138. In the absence of a timely
filed, specific objection, the court reviews the R&R only for clear error. Diamond, 416
F.3d at 315. A review of the record for clear error indicates that the R&R accurately
summarized this case and the applicable law. Accordingly, the court adopts the
magistrate judge’s R&R and dismisses Brooks’s abuse of power claim and denies
summary judgment as to Brooks’s § 1983 excessive force claim and his state law assault
and battery claim against Officer Zorn.
Brooks objects, however, to the magistrate judge’s recommendation that the court
grant in part Officer Zorn’s motion for summary judgment on other causes of action. See
generally ECF No. 138. Brooks has two objections to the R&R. Id. at 1. Generously
construed, Brooks’s first objection is that the magistrate judge erred by using the same
analysis of Brooks’s state law claim for false arrest that she used for his § 1983 claim for
false arrest/imprisonment. Id. The court liberally construes this objection to argue that
the R&R applied the improper legal standard to the analysis of Brooks’s state law claim
for false arrest. See Gordon, 574 F.2d at 1151.
Brooks’s second objection is that the R&R improperly concluded that Officer
Zorn had probable cause to arrest Brooks after he fled the traffic stop, such that the

9

recommendation incorrectly recommended that the court grant summary judgment as to
Brooks’s § 1983 false arrest/imprisonment claim. See ECF No. 138 at 2–4. Specifically,
Brooks suggests that the R&R’s conclusion is an “oxymoron” in that, on the one hand, it
concluded that there was a genuine dispute of material fact as to Officer Zorn’s use of
excessive force but, on the other hand, it concluded that there was not a genuine dispute
of material fact as to false imprisonment. Id. at 3. Brooks argues this conclusion was
erroneous because a person “has a right to resist an unlawful arrest.” Id. at 2. Thus, once
Officer Zorn attempted to taze him, Brooks argues that his subsequent alleged violations
of South Carolina law—namely, fleeing from the traffic stop, refusal to stop for blue
lights, and apparent resisting arrest—should be considered as pursuant to his right to
resist an unlawful arrest such that Officer Zorn purportedly did not have probable cause
to subsequently arrest Brooks. See id. at 4. Brooks argues that, under South Carolina
law, the issue of probable cause is a question of fact ordinarily reserved for the jury. Id.
at 3.
Thus, the court reviews de novo the magistrate judge’s recommendations and the
parties’ arguments as to Brooks’s § 1983 false arrest and false imprisonment claims as
well as his state law claims of false arrest. See R&R at 15, 27–30.
1. 42 U.S.C. § 1983: False Arrest/False Imprisonment
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

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under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, Brooks
argues that Officer Zorn falsely imprisoned him during the traffic stop because the
duration of the stop was not reasonable, and he further argues that Officer Zorn falsely
arrested him after Brooks fled the scene.
Section 1983 actions premised on false arrest are analyzed as actions claiming
unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v.
Gilmore, 278 F.3d 362, 367–68 (4th Cir. 2002) (recognizing that a plaintiff alleging a
§ 1983 false arrest claim needs to show that the officer decided to arrest him without
probable cause to establish an unreasonable seizure under the Fourth Amendment);
Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and
false imprisonment “are essentially claims alleging a seizure of the person in violation of
the Fourth Amendment”). The Fourth Amendment protects “[t]he right of the people to
be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const.
amend. IV. Whether an arrest was reasonable is generally determined by whether the
arresting officer had probable cause. See Michigan v. Summers, 452 U.S. 692, 700
(1981) (“[E]very arrest, and every seizure having the essential attributes of a formal
arrest, is unreasonable unless it is supported by probable cause.”); District of Columbia v.
Wesby, 583 U.S. 48, 56 (2018) (“A warrantless arrest is reasonable if the officer has
probable cause to believe that the suspect committed a crime in the officer’s presence.”).
Thus, “there is no cause of action for ‘false arrest’ under section 1983 unless the arresting
officer lacked probable cause.” Street v. Surdyka, 492 F.2d 368, 372–73 (4th Cir. 1974);
see also Brown, 278 F.3d at 367 (same); Harrison v. Deane, 426 F. App’x 175, 181 (4th

11

Cir. 2011) (same); Sowers v. City of Charlotte, 659 F. App’x 738, 739 (4th Cir. 2016)
(same); Henderson v. McClain, 2022 WL 704353, at *4 (4th Cir. Mar. 9, 2022) (same).
Probable cause exists if the “facts and circumstances within the officer’s
knowledge . . . 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.” United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)
(quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Probable cause “deals with
probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, 540
U.S. 366, 371 (2003). The United States Supreme Court has stressed that “[p]robable
cause ‘is not a high bar.’” Wesby, 583 U.S. at 57 (quoting Kaley v. United States, 571
U.S. 320, 338 (2014)). “To prove an absence of probable cause, [the plaintiff] must
allege a set of facts which made it unjustifiable for a reasonable officer to conclude” that
the plaintiff had violated the relevant statute. Brown v. Gilmore, 278 F.3d 362, 368 (4th
Cir. 2002).
Brooks’s Fourth Amendment false imprisonment/false arrest claims stem from the
initial traffic stop and from Brooks’s subsequent arrest after fleeing from that stop. First,
Officer Zorn was justified in initiating the traffic stop because there was probable cause
that Brooks had committed a traffic violation. It is undisputed that Brooks was driving a
vehicle that did not have a license plate displayed. 3 This constitutes a violation of state

3

The court echoes the magistrate judge’s recommendation in observing that while
South Carolina treats probable cause as a question of fact that must ordinarily go to the
jury, see, e.g., Jones v. City of Columbia, 389 S.E.2d 662, 663 (S.C. 1990), probable
cause can “be decided as a matter of law when the evidence yields but one conclusion,”
Law v. S.C. Dep’t of Corr., 629 S.E.2d 642, 649 (S.C. 2006). Neither party disputes that
Brooks violated three state laws. See S.C. Code Ann. §§ 56-3-1240 (driving vehicle with
no license plate displayed), 56-5-750 (failure to stop when signaled by law enforcement
12

law. S.C. Code Ann. § 56-3-1240 (“It is unlawful to operate or drive a motor vehicle
with the license plate missing”). Officer Zorn personally observed this violation,
meaning that he had probable cause to initiate the traffic stop for this violation. See
Gray, 137 F.3d at 769.
Second, there is no genuine issue of material fact that Officer Zorn had
sufficiently reasonable information to believe that Brooks was committing an offense
when he ultimately arrested Brooks. See Gray, 137 F.3d at 769. It is undisputed that
after fleeing from the location of the traffic stop, Brooks failed to yield for Officer Zorn’s
blue lights and continued traveling down the road without pulling over for approximately
one and a half miles. A motorist’s failure to stop as directed for law enforcement is a
violation of state law. See S.C. Code Ann. § 56-5-750 (establishing the criminal offense
of failing to stop when signaled by a law enforcement vehicle by means of a siren or
flashing light). It is further undisputed that when Brooks did finally pull over, he stopped
at his father’s house and ran inside of it. While inside of the house, Brooks refused
Officer Zorn’s and the two other officers’ commands to exit the house because Brooks
was under arrest. Resisting arrest is also a violation of state law. See S.C. Code Ann.
§ 16-9-320(A) (establishing the criminal offense of resisting arrest). Officer Zorn
personally witnessed Brooks’s violation of two state laws and therefore had probable
cause to arrest Brooks. See Gray, 137 F.3d at 769.

vehicle when signaled by siren or flashing lights), 16-9-320(A) (resisting arrest). The
first violation established probable cause for the traffic stop and the subsequent two
violations each established probable cause for the arrest. Brooks has neither identified
nor provided any evidence which undermines this finding.
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In his objections, Brooks does not challenge the R&R’s conclusions as to
probable cause but emphasizes that a person has the right to resist and unlawful arrest.
ECF No. 138 at 2–4. Brooks is correct that under South Carolina law, “[a] person has a
right to resist an unlawful arrest even to the extent of taking the life of the aggressor if it
be necessary in order to regain his liberty.” State v. Poinsett, 157 S.E.2d 570, 571 (S.C.
1967). South Carolina law also holds that “when an officer holds a valid warrant for the
arrest of a person, and when it is being served in accordance with law, it is the duty of the
person whose arrest is sought to submit peaceably.” See id. Additionally, “an officer
may arrest for a misdemeanor without a warrant when the facts or circumstances
observed by him provide probable cause to believe a crime has been freshly committed.”
State v. Grate, 423 S.E.2d 119, 120 (S.C. 1992). Taken together, the court must conclude
that even though there is a right to resist an unlawful arrest under South Carolina law,
when such an arrest is undertaken with probable cause for that arrest, the arrest is not
unlawful, and the arrestee should submit peaceably. See Poinsette, 157 S.E.2d at 571;
Grate, 423 S.E.2d at 120.
The court agrees with the magistrate judge and concludes that because both the
traffic stop and the subsequent arrest were supported by probable cause, there is no
genuine issue of material fact that Brooks has not established a § 1983 claim for false
arrest or false imprisonment.
2. State Law: False Arrest
False arrest in South Carolina is also known as false imprisonment. Carter v.
Bryant, 838 S.E.2d 523, 527 (S.C. Ct. App. 2020). The elements of the tort are
intentional restraint of another without lawful justification. See Jones v. City of

14

Columbia, 389 S.E.2d 662, 663 (S.C. 1990); see also Zimbelman v. Savage, 745 F. Supp.
2d 664, 683 (D.S.C. 2010) (“To establish a cause of action for false imprisonment, the
Plaintiff must prove that: (1) the Defendant restrained the Plaintiff; (2) that the restraint
was intentional; and (3) that the restraint was unlawful”).
It is well established that one arrested pursuant to a facially valid warrant has no
cause of action for false arrest. Bushardt v. United Inv. Co., 113 S.E. 637, 639 (S.C.
1922); see also Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (“[W]e recognized
implicitly that a claim for false arrest may be considered only when no arrest warrant has
been obtained”) (applying South Carolina law). If a plaintiff suing for false arrest “has
shown that the arrest and imprisonment of which he complains was made under legal
process, regular in form, and lawfully issued and executed, then he has proved himself
out of court.” McConnell v. Kennedy, 7 S.E. 76, 78 (S.C. 1888). To reiterate, “an officer
may arrest for a misdemeanor without a warrant when the facts or circumstances
observed by him provide probable cause to believe a crime has been freshly committed.”
Grate, 423 S.E.2d at 120. “Probable cause is not an exacting standard. It only requires
evidence that would cause ‘an ordinarily prudent and cautious person’ to have a good
faith belief that the arrestee is guilty of a crime.” Seabrook v. Town of Mount Pleasant,
853 S.E.2d 508, 511 (S.C. Ct. App. 2020) (quoting Wortman v. Spartanburg, 425 S.E.2d
18, 20 (S.C. 1992)).
Brooks objects to the R&R for using the same analysis in its review of the state
law claim of false arrest as it did for its analysis of the § 1983 false arrest/false
imprisonment. ECF No. 138 at 1. However, a de novo review prompts the court to
conclude that such an analysis would be redundant because of the substantial overlap

15

between the federal and state law claims. See Brooks v. City of Winston-Salem, 85 F.3d
178, 181–84 (4th Cir. 1996) (considering a violation of the plaintiff’s Fourth Amendment
rights because his arrest was not supported by probable cause and the authorities
continued his prosecution after it was apparent he was innocent by incorporating the
elements of the analogous common law torts under state law); see also Lambert v.
Williams, 223 F.3d 257, 262 (4th Cir. 2000) (“By incorporating the common law into our
§ 1983 analysis, we follow a consistent line of authority which has looked to common
law torts bearing similarity to the constitutional rights at issue and incorporated into those
claims common law elements of damages, prerequisites for recovery, and immunities”).
Relevant here, where probable cause existed for the federal claim, it also existed for the
state law claim, and the existence of probable cause for the arrest negates the state false
arrest causes of action because the restraint was lawful. See Jones, 389 S.E.2d at 663.
Thus, the magistrate judge did not err when her report and recommendation included
substantial overlap in its analysis of the § 1983 Fourth Amendment false arrest claim and
the false arrest claim brought pursuant to South Carolina state law.
In sum, a de novo review of Brooks’s objections to the R&R leads the court to
adopt the recommendation in full. The court grants in part and denies in part Officer
Zorn’s motion for summary judgment and grants Officer Doe’s motion for summary
judgment and dismisses him as a defendant.
B. Motion to Set Aside Final Judgment
“To succeed on a Rule 60(b) motion, ‘a party must demonstrate (1) timeliness, (2)
a meritorious defense, (3) a lack of unfair prejudice to the opposing party, and (4)
exceptional circumstances.’” Al-Sabah v. Agbodjogbe, 2021 WL 5176463, at *1 (4th

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Cir. Nov. 8, 2021) (quoting Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859
F.3d 295, 299 (4th Cir. 2017)). “Once a party makes this threshold showing, it must
demonstrate that it is entitled to relief under one of Rule 60(b)’s six subsections.” Id.
“A motion under Rule 60(b) must be made within a reasonable time . . . no more
than a year after the entry of the judgment or order or the date of the proceeding.” Fed.
R. Civ. P. 60(c)(1). On June 20, 2023, this court entered its order adopting the magistrate
judge’s recommendation to grant in part and deny in part BCSO and Officer Doe’s
motion to dismiss, ECF No. 19, and to grant SSPD’s motion to dismiss, ECF No. 21.
ECF No. 64. One hundred and forty-two (142) days later—on November 9, 2023—
Brooks filed a motion to reconsider. ECF No. 93. On April 11, 2024, the court denied
Brooks’s first motion to reconsider the motions to dismiss.4 ECF No. 114.
Brooks now files a motion, which he captions as a motion to set aside final
judgment. ECF No. 128. He describes this motion as a motion to reconsider the court’s
order resolving his first motion to reconsider, ECF No. 114, but the substance of his
motion operates as a second motion to reconsider the court’s resolution of the motions to

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Specifically, the court found that BCSO and Officer Doe, when sued in his
official capacity, are entitled to Eleventh Amendment immunity as a matter of law. See
Gulledge v. Smart, 691 F. Supp. 947 (D.S.C. 1988), aff’d, 878 F.2d 379 (4th Cir. 1989);
Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996). However, the court noted that a
municipal police department like the SSPD does not qualify for Eleventh Amendment
immunity. See Mickle v. Ahmed, 444 F. Supp. 2d 601, 612 (D.S.C. 2006) (citing Nelson
v. Strawn, 897 F. Supp. 252 (D.S.C. 1995), aff’d in part, vacated in part on other grounds,
78 F.3d 579 (4th Cir. 1996)). Nevertheless, federal courts in this district have determined
that municipal police departments are not the proper party defendant under the South
Carolina Tort Claims Act (“SCTCA”) and dismissed the departments based upon that
finding. See McCree v. Chester Police Dep’t, 2021 WL 3711098, at *3–4 (D.S.C. Aug.
20, 2021). Consequently, this court properly dismissed BCSO and SSPD as parties from
the suit and correctly dismissed the claims against Officer Doe in his official capacity as
a matter of law. Brooks had not demonstrated that he has a meritorious claim, and the
court denied his motion for reconsideration as a matter of law.
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dismiss, ECF No. 64, because he challenges the court’s dismissal of the SSPD. See
generally ECF No. 128. The court therefore interprets this motion as a second motion to
reconsider.
Brooks’s second motion to reconsider is timely because he filed it less than a year
after the court granted SSPD’s motion to dismiss, ECF No. 64, and after the court
reconsidered its order the first time, ECF No. 114. 5 See Fed. R. Civ. P. 60(c)(1).
However, Brooks’s motion fails at the second requirement of a meritorious defense
because the court finds Brooks’s motion to be without merit. See Al-Sabah, 2021 WL
5176463, at *1.
Brooks misreads this court’s previous order when he interprets it to say that SSPD
is entitled to Eleventh Amendment immunity. Compare ECF No. 128 (arguing that the
court erred dismissing SSPD because it was entitled to Eleventh Amendment immunity)
with ECF No. 114 at 20–21 (finding that a municipal police department like SSPD does
not qualify for Eleventh Amendment immunity but nonetheless dismissing SSPD because
a municipal police department is not the proper party defendant under the South Carolina
Tort Claims Act (“SCTCA”)). Indeed, the caselaw that this court cited specifically
explains that while a municipality may be sued pursuant to § 1983, the proper party
defendant is the city or municipality and not the municipal police department. See
McCree v. Chester Police Dep’t, 2021 WL 3711098, at *3 (D.S.C. Aug. 20, 2021). As

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On June 20, 2023, the court granted the motion to dismiss, ECF No. 64, and the
court denied Brooks’s motion for reconsideration of that order on April 11, 2024, ECF
No. 114. On May 23, 2024, Brooks filed this second motion to reconsider, which is
respectively three hundred and thirty-eight (338) days after the court’s first order and
forty-two (42) days after the court’s order denying Brooks’s first motion for
reconsideration. ECF No. 128.
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such, a de novo review of the facts and law in this case indicates that the court properly
reached its initial and reconsidered conclusions that dismissal of the SSPD was proper.
See ECF Nos. 64; 114. The court concludes that Brooks has not demonstrated that he has
a meritorious claim, and the court denies his motion for reconsideration as a matter of
law.
IV. CONCLUSION
For the foregoing reasons the court ADOPTS the R&R in full, GRANTS Officer
Doe’s motion for summary judgment, GRANTS IN PART and DENIES IN PART
Officer Zorn’s motion for summary judgment, and DENIES Brooks’s motion for
reconsideration.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 29, 2024
Charleston, South Carolina

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