Martin et al v. Lott et al

Filing 78

ORDER granting in part 64 Deputies' Motion for Summary Judgment as to Mr. Martin on all claims and as to the claim of excessive force asserted by Mrs. Martin, notifying that Mrs. Martin's § 1983 claims for illegal seizure and false a rrest, and retaliation in violation of the First Amendment remain for trial, remanding the Richland County Court of Common pleas Mr. Martin's and Mrs. Martin's claims against Sheriff Leon Lott pursuant to the Eleventh Amendment, and notifying that the trial of this case will proceed as scheduled during the March/April 2010 term of court with jury selection will take place on March 9, 2010. Signed by Honorable Joseph F Anderson, Jr on 02/09/10.(bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION C a rlo s Edward Martin and T a sh ia n a Anita Martin, P l a i n t if f s , vs. L e o n Lott, as representative for the O f f ic e of the Richland County S h e rif f 's Department; Deputies Ben F ield s and Joseph Clark, in their in d iv id u a l capacities as deputies with the Richland County Sheriff's D e p a rtm e n t, D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C / A No. 3:07-3782-JFA

ORDER

T h is matter is before the court on the motion [dkt. # 64] of defendants Deputy Ben F ie ld s ("Deputy Fields") and Deputy Joseph Clark ("Deputy Clark")(together the " D e p u ties " ), each in his individual capacity, and Sheriff Leon Lott, in his official capacity a s representative of the Richland County Sheriff's Office, for summary judgment against C a rlo s Martin ("Mr. Martin") and Tashiana Martin ("Mrs. Martin"). The parties have fully b rie f ed the motion and the court heard oral argument on February 4, 2010. This order serves to announce the ruling of the court. I. F ac tu al and Procedural Posture T h is case arises out of an encounter between Mr. Martin and Deputy Fields on O c to b e r 24, 2005, when Deputy Fields was dispatched to Quail Run apartment complex in

R ich lan d County, South Carolina based on a report of a suspicious individual. As Deputy F ield s entered the complex in his patrol car, Mr. Martin followed behind in his car, allegedly p laying music at a loud volume. Deputy Fields and Mr. Martin parked next to one another, a n d engaged in a verbal exchange. As a result, Deputy Fields allegedly took Mr. Martin to th e ground, emptied an entire canister of mace on him, and placed Mr. Martin under arrest f o r breaching the peace. During the course of the exchange and arrest, Mrs. Martin, wife of M r. Martin, came outside the apartment she shared with her husband at Quail Run and took s e v e ra l pictures with her camera phone, attempting to capture the exchange and subsequent a rre st on video. Upon the arrival of other law enforcement officers, Mrs. Martin alleges that D e p u ty Fields directed another officer to confiscate the camera phone--which allegedly c o n ta in e d the pictures of the exchange and arrest. Mrs. Martin also alleges that the Deputies th re w her against a vehicle, handcuffed her, forced her to the ground, and eventually placed h e r in the back of a police car. (Am. Compl. ¶ 18.) M r. and Mrs. Martin filed suit in state court in the Richland County Court of Common P le a s on October 17, 2007. Mr. Martin alleges, pursuant to 42 U.S.C. § 1983, illegal seizure, f a ls e arrest, and excessive force under the Fourth Amendment against Deputy Fields; and r e ta lia tio n for exercising First Amendment rights against Deputy Fields. Mr. Martin also a ss e rts state law claims of false imprisonment, false arrest, and battery against Sheriff Leon L o tt, in his representative capacity. Mrs. Martin alleges, pursuant to § 1983, illegal seizure a n d excessive force under the Fourth Amendment against Deputy Clark; false arrest under

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th e Fourth Amendment against Deputy Fields; and retaliation for exercising First A m e n d m e n t rights against Deputy Fields. Mrs. Martin also asserts state law claims of false im p ris o n m e n t, false arrest, and battery against Sheriff Leon Lott, in his representative c a p a c i t y. S h e rif f Leon Lott and the Deputies removed the case to this court on November 19, 2 0 0 7 . The court has at various times during the past two years issued three scheduling o r d e r s , stayed the case for approximately eleven months, and conferred with counsel on n u m e ro u s occasions regarding a variety of matters. The discovery period ended on

N o v e m b e r 20, 2009, and Sheriff Leon Lott and the Deputies filed a motion for summary ju d g m e n t on December 4, 2009. Trial is scheduled for the March 9, 2010 term of court. II. D is c u ss io n A. S ta n d a rd of Review

R u le 56(c) of the Federal Rules of Civil Procedure provides that summary judgment s h o u ld be granted "if the pleadings, the discovery and disclosure materials on file, and any a f f id a v its 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). "[T]he mere existence of s o m e alleged factual dispute between parties will not defeat an otherwise properly supported m o tio n for summary judgment; the requirement is that there be no genuine issue of material f a ct." Ballenger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (e m p h a s is omitted). A fact is material if proof of its existence or non-existence would affect

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th e disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 248­49 (1986). An issue is genuine if the evidence offered is such that a re a so n a b le jury might return a verdict for the nonmovant. Id. at 257. In cases where the p a rtie s dispute material facts, "the non-moving party is entitled to have his evidence as f o re c a st assumed, his version of that in dispute accepted, and the benefit of all favorable in f e re n c es ." Henson v. Liggett Group, Inc., 61 F.3d 270, 275 (4th Cir. 1995). Moreover, the c o u r t "may not make credibility determinations or weigh the evidence." Williams v. Staples, Inc ., 372 F.3d 662, 667 (4th Cir. 2004). B. F a ls e Imprisonment and False Arrest Pursuant to § 1983

T h e Fourth Amendment prohibits law enforcement officers from making unreasonable s e iz u re s ; seizure absent probable cause is unreasonable. Miller v. Prince George's County, 4 7 5 F.3d 621 (4th Cir. 2007). "Probable cause" means "facts and circumstances within the o f f ice r's knowledge that are sufficient to warrant a prudent person, or one of reasonable c a u tio n , in believing, in the circumstances shown, that the suspect has committed, is c o m m ittin g , or is about to commit an offense." Michigan v. De Fillippo, 443 U.S. 31, 37 ( 1 9 7 9 ) . However, "[w]hile probable cause requires more than bare suspicion, it requires less than that evidence necessary to convict." United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1 9 9 8 ). Probable cause may be based on uncharged conduct. See, e.g., Davenpeck v. Alford, 5 4 3 U.S. 146, 154­56 (2004); Jackson v. City of Abbeville, 623 S.E.2d 656, 660 (S.C. App. 2 0 0 5 ).

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T w o factors inform the determination of probable cause: "the suspect's conduct as k n o w n to the officer, and the contours of the offense thought to be committed by that c o n d u c t." Prichett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992). The rights of the plaintiff m a y be found violated "at this level of factual particularity if probable cause is lacking on e ith e r or both the factual knowledge or legal understanding components of the equation." Id . at 314. "As its name suggests, probable cause involves probabilities--judgment calls that a re tethered to context and rooted in common sense." United States v. White, 549 F.3d 946, 9 4 7 (4th Cir. 2008). To prove an absence of probable cause to arrest under the Fourth A m e n d m e n t, the arrestee must allege a set of facts which make it unjustifiable for a re a so n a b le officer to conclude he is violating the law. Brown v. Gilmore, 278 F.3d 362 (4th C ir. 2002). 1. M r. Martin Asserts Claims of False Arrest and False Imprisonment A g a in s t Deputy Fields

M r. Martin asserts false arrest and false imprisonment against Deputy Fields. Taking the facts in the light most favorable to Mr. Martin, the relevant conduct is as follows. Mr. M a rtin followed Deputy Fields into Quail Run with his car windows partially down, playing m u s ic on his car stereo. Deputy Fields alleges, and Mr. Martin does not controvert, that he co u ld hear music from Mr. Martin's car for a period of fifty seconds prior to Mr. Martin's c a r becoming visible to Deputy Fields and that the bass sound was pronounced. Richland County ordinance Sec. 18­3 provides that: It shall be unlawful for any individual within any residential zone of the 5

u n in c o rp o ra te d areas of the county to use or operate any radio . . . including v e h ic u la r noise, in excess of sixty-two (62) decibels between the hours of 7:00 a .m . and 10:00 p.m. . . . or in a manner which is deemed to be excessive by the c o u n ty sheriff's department. (D ef s.' Reply Supp. Summ. J. Ex. 1.) Accordingly, because Deputy Fields could hear Mr. M a rtin 's music well before he could see Mr. Martin's car round the turn (Fields Dep. 8 5 :1 1 ­ 1 7 ), and also because the statute confers some discretion on the enforcing officer, the c o u rt finds that Deputy Fields could have reasonably concluded that Mr. Martin violated the n o is e ordinance, thus establishing probable cause sufficient to justify arresting him. Deputy Fields also asserts that at the time of Mr. Martin's arrest, probable cause e x is te d as to common law breach of peace, and for failure to exhibit license on demand p u rs u a n t to S.C. Code Ann. § 56-1-90 (2006). Because the court finds that Deputy Fields e sta b lis h e d probable cause for violation of the noise ordinance, the court declines to analyze p r o b a b le cause under the other asserted bases. 2. M rs . Martin Asserts Claims of False Arrest Against Deputy Fields and Illeg a l Seizure Against Deputy Clark

M r s. Martin asserts false arrest against Deputy Fields and illegal seizure against D e p u ty Clark. The Deputies assert, in their motion for summary judgment, that probable ca u se existed to arrest Mrs. Martin for breach of peace and resisting arrest. At the February 4 , 2010 hearing, Deputies' counsel asserted for the first time that probable cause also existed to arrest Mrs. Martin for public disorderly conduct and obstruction of justice. T h e facts relevant to the court's analysis of probable cause as to Mrs. Martin are as

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f o llo w s. On October 24, 2005, at approximately 5:15 p.m., Mrs. Martin, responding to calls f ro m her neighbors, alighted from her apartment to find Deputy Fields subduing her husband. S h e approached the scene of the arrest where Mr. Martin directed her to retrieve their n e i g h b o r and acquaintance, Richland County law enforcement officer Sonya Goins. Mrs. M a rtin , unsuccessful in her search for Sonya Goins, returned to within a couple of feet of the s c e n e of the arrest and began to take photos with her camera phone. (Mrs. Martin Dep. 1 5 6 :7 ­ 1 5 7 :2 .) Dissatisfied with her phones' picture-taking capabilities, she returned to her a p a rtm e n t to search for a more substantial video recorder. Unsuccessful in her search, she return ed again to the scene of the arrest and took several additional pictures with her camera p h o n e . Upon returning, Mrs. Martin exclaimed "what the hell are y'all doing to my h u s b a n d ? " (Mrs. Martin Dep. 181:20­21.) Mrs. Martin then alleges that three officers, in c lu d in g the Deputies, grabbed her and slammed her against a parked car. (Mrs. Martin D e p . 183:16­184:12.) Mrs. Martin explicitly denies using profanity, swinging, kicking, a ttem p tin g to swing, or attempting to kick any of the officers at any time during the events in dispute. (Mrs. Martin Dep. 181:9­183:1.) The court notes that the defense of qualified immunity, and the probable cause a ss e rtio n s for common law obstruction of justice and incitation to riot were not raised as to M rs . Martin in the Deputies' motion for summary judgment. Accordingly, the court declines to assess the merits of a qualified immunity defense as to Mrs. Martin's claims. See B u f f in g to n v. Baltimore County, 913 F.2d 113, 120­21 (4th Cir. 1990) (holding that a party

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a b a n d o n s its qualified immunity defense in a § 1983 action by not raising the issue clearly i n the motion for summary judgment); see also Sales v. Grant, 224 F.3d 293, 296­97 (4th C ir. 2000). The court also notes that Mrs. Martin raised the absence of a qualified immunity d e f en s e in her response to the Deputies' motion for summary judgment and that the Deputies d id not address the omission of the defense in their reply. The court will address, out of caution--not out of necessity--the Deputies' c o n ten tio n , first raised at the hearing, that probable cause existed as to two previously u n id e n tifie d and uncharged crimes. The court finds no prejudice as to Mrs. Martin in a d d r e ss in g these late-asserted claims as the court finds the Deputies did not establish p ro b a b le cause under the facts as the court must view them. Had the facts suggested o th e rw ise , the court would be constrained to deny the late-asserted claims as bases to e sta b lis h probable cause because Mrs. Martin would be deprived of the opportunity to brief the matter. a. P r o b a b l e Cause as to Resisting Arrest

D e p u tie s Fields and Clark assert probable cause to arrest Mrs. Martin for resisting a rre st. No argument made in the Deputies' motion touches on either deputy's knowledge of M rs. Martin's conduct in relation to the contours of breach of peace--the deputies appear to le t their entire argument ride on the grand jury indictment for resisting arrest and the decision o f the prosecutor to pursue the case. The court will address the asserted bases in turn. I. T h e Grand Jury Indictment

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T h e Deputies rely on S.C. Code Ann. § 16-9-320(b) to support their arrest of Mrs. M a rtin . The relevant portions of that section provide: It is unlawful for a person to . . . to assault, beat, or wound an officer when the p e rs o n is resisting an arrest being made by one whom the person knows or r e a so n a b l y should know is a law enforcement officer, whether under process o r not. S .C . Code Ann. § 169-320(b)(2003). On June 23, 2006, the Richland County Grand Jury re tu rn e d a true bill, indicting Mrs. Martin and stating: That TASHIANA MARTIN did in Richland County on or about O c to b e r 24, 2005 knowingly and willfully assault, beat or would Dep. B. F ie ld s , a law enforcement officer of this State, while the officer was a tte m p tin g to make a lawful arrest of said defendant in violation of 16-93 2 0 (b ), Code of Laws of South Carolina, (1976), as amended. D e p u tie s Fields and Clark assert that because the grand jury returned a true bill indictment ag ains t Mrs. Martin for resisting arrest, the indictment provides sufficient basis to support p ro b a b le cause for resisting arrest. The United States Supreme Court has held that "an indictment, fair upon its face, and re tu rn e d by a properly constituted grand jury, conclusively determines the existence of p ro b a b le cause." Gerstein v. Pugh, 420 U.S. 103 n.19 (1975). However, courts have re c o g n ize d that the return of a true bill does not foreclose a plaintiff from pursuing a claim u n d er the Fourth Amendment where there is evidence that the grand jury's deliberations were tain ted by the actions of the defendant. See e.g., Shields v. Twiss, 389 F.3d 142 (5th Cir. 2 0 0 4 ), Cook v. McPherson, 273 F. Appx. 421 (6th Cir. 2008). Similarly, in Franks v. D e la w a re , 438 U.S. 154 (1978), the United States Supreme Court recognized that an officer 9

v io late s the Fourth Amendment when he procures a search warrant through a false affidavit, a n d a magistrate would not have otherwise found probable cause. See also, Unus v. Kane, 5 6 5 F.3d 103, 124 (4th Cir. 2009). In the malicious prosecution context, the Fourth Circuit has found that where a p lain tiff was arrested pursuant to a warrant, "plaintiff's allegations that police seized him p u rs u a n t to a legal process that was not supported by probable cause and that the criminal p ro c e e d in g s terminated in his favor," the plaintiff states a claim under the Fourth A m e n d m e n t. Miller v. Prince George's County, 475 F.3d 621 (4th Cir. 2007). The re a so n in g of the Franks and Miller courts applies with equal force where a defendant seeks to base probable cause on an indictment supported by a single affidavit that is alleged to be d e f ic ie n t because it is dishonest. In each of the above scenarios, the required showing to successfully discredit an a f f i d a v it is the same: a plaintiff must show that the officer deliberately, or with reckless d is re g a rd for the truth, made material false statements in his affidavit. See Franks v. D e la w a re , 438 U.S. 154 (1978) (search warrant); Unus v. Kane, 565 F.3d 103 (4th Cir. 2009) (s e a rc h warrant); Miller, 475 F.3d at 627 (malicious prosecution). Reckless disregard may b e established through evidence showing an officer acted with a high degree of awareness o f the statement's probable falsity. Id. ("when viewing all the evidence, the affiant must h a v e entertained serious doubts as to the truth of his statements or had obvious reasons to d o u b t the accuracy of the information he reported"). Material omission may be established

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th ro u g h evidence showing that a police officer failed to inform the judicial officer of facts h e knew would negate probable cause. Id. Key to either assertion or omission is a showing o f the materiality of the asserted or omitted information. To determine materiality, the court s h o u l d excise the offending portions of the affidavit, and determine whether the corrected a f f id a v it would establish probable cause. Id. In a motion for summary judgment, where a m o v in g defendant seeks to rely on his affidavit, the court must view the affidavit in light of th e facts alleged by the nonmoving party. D e p u ty Fields' affidavit providing the basis for the grand jury's indictment states in its entirety: T h a t on 10-24-05 while at 3509 Lake Ave Apt 1111 in the Dentsville M a g istra te District of Richland County, one Tashiana A. Martin did commit th e crime of Assault on Police while Resisting arrest in the she did with k n o w le d g e and intent assault above police officer as he was in the process of p la c in g above subject's husband under arrest. Subject above run towards two R /O 's swinging her arms and attempting to kick officer in the head. R/O p la c ed hands on subject to effect arrest subject began cursing, swinging her a rm s and kicking at R/Os. This action caused injuries to R/Os. Affiant and o th e rs are witness to prove the same. Mrs. Martin asserts that her testimony and the testimony of Mr. Martin, Ms. Lewis, and Mr. A b d ' Allah Adasanya (Mrs. Martin Resp. to Mot. Summ. J. Ex. B) establishes that Mrs. M a rtin did not run towards the Deputies swinging her arms and attempt to kick any officer in the head, nor did she begin cursing, swinging her arms and kicking any officers when the D e p u ties attempted to effect the arrest. Mrs. Martin also asserts that Deputy Fields should h a v e included information in his affidavit that Mrs. Martin was taking pictures, did not

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a tte m p t to interfere with the arrest, and did not curse the Deputies. R e so lv in g factual disputes in favor Mrs. Martin, and excising disputed material facts f r o m Deputy Fields' affidavit, the court finds that a corrected affidavit would not support p ro b a b le cause. Taking the evidence in the light most favorable to Mrs. Martin, a reasonable ju ry could find that the affidavit submitted by Deputy Fields contained material m isre p re se n tatio n s made deliberately or with reckless disregard for whether his statements m a d e the affidavit misleading.1 ii. O p in io n of the Prosecuting Attorney

T h e Deputies assert that the fact that the Richland County Solicitor determined to in i tia te prosecution, and then pursued the case for three years, should suffice to establish p ro b a b le cause existed at the time of Mrs. Martin's arrest. Essentially, the Deputies seek an in f e re n c e that the solicitor's conduct evinces a legal judgment that probable cause existed. T h e Deputies cite a handful of cases for the proposition that law enforcement may rely on a prosecuting attorney for a determination as to whether probable cause exists. However the c a s e s they cite pertain to consultation of an attorney prior to swearing out a warrant in re la tio n to asserting a good faith defense to a malicious prosecution claim. See Melton v. W illiam s, 314 S.E.2d 612, 615 (S.C. App. 1984). The cases cited do not apply to the facts

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It should be emphasized that this court does not find that any misstatements or omissions occurred. Instead, the court finds that there is evidence from which a jury could conclude that misstatements and omissions occurred. See Miller v. Prince George's County, 475 F.3d 621, 628 (4th Cir. 2007) ("Perhaps [the officer] may ultimately persuade a factfinder, but this argument cannot prevail on summary judgment, for at this stage we do not find facts."). 12

o f this case, nor are they easily analogized. B a se d on the facts as the court must view them, and the above analysis concerning the D e p u tie s' reliance on the indictment as evidence of probable cause, the court finds that the D e p u tie s have not established probable cause as to the charge against Mrs. Martin for re sis tin g arrest. b. P r o b a b le Cause as to Public Disorderly Conduct and Breach of Peace

In South Carolina, public disorderly conduct encompasses conduct "on any highway o r at any public place or public gathering" whereby a person behaves "in a grossly in to x ic a te d condition or otherwise conduct[s] himself in a disorderly or boisterous manner." S .C . Code Ann. § 16-17-530 (2003). Breach of peace comprises a rather broad swathe of c o n d u c t that destroys or menaces the public order and tranquility. State v. Poinsett, 157 S .E .2 d 570, 571 (S.C. 1967). "In general terms a breach of peace is a violation of the public o rd e r, a disturbance of public tranquility, by any act or conduct inciting to violence, which in c lu d e s any violation of any law enacted to preserve peace and good order." Id. In the context of speech to a police officer, the South Carolina Supreme Court has co n stru ed S.C. Code Ann. § 16-17-530 as well as common law breach of peace, to require th e use of fighting words "that by their very utterance inflict injury or tend to incite an im m e d iate breach of peace." State v. Perkins, 412 S.E.2d 385 (S.C. 1991). Specifically in th e context of speech toward police, the United States Supreme Court noted that the fighting w o rd s exception requires even more narrow construction of the statute as "a properly trained 13

o f f ic e r may reasonably be expected to exercise a higher degree of restraint than the average c itiz e n ." City of Houston v. Hill, 482 U.S. 451 (1987). In Perkins, the South Carolina S u p re m e Court placed emphasis on the following: "The freedom of individuals verbally to o p p o s e or challenge police action without thereby risking arrest is one of the principal c h a ra c te ris tic s by which we distinguish a free nation from a police state." Perkins, 412 S .E .2 d at 386 (internal citation omitted). South Carolina courts to have considered S.C. Code A n n . § 16-17-530 appear to require more than profanity or merely raising one's voice to a p o lice officer, though not more than yelling obscene language while intoxicated. Compare P e rk in s , 412 S.E.2d 412 (raising voice insufficient), and In re Jeremiah W., 606 S.E.2d 766 (S .C . 2004) (upholding directed verdict in favor of defendant where only profanity used), w ith State v. McGowan, 557 S.E.2d 657 (S.C. 2001) (sustaining jury verdict where there was e v id e n c e of intoxication and obscenity toward police), and State v. Pittman, 537 S.E.2d 563 (S .C . App. 2000) (upholding an arrest for public disorderly conduct where defendant is both g ro s s ly intoxicated and uses obscene language toward arresting officers); see also Landrum v . Sarratt, 572 S.E.2d 476 (S.C. App. 2002) (discussing words constituting fighting words, n o tin g that use of "fuck" absent directed and repetitive use is not punishable); State v. L a C o s te , 553 S.E.2d 464 (S.C. App. 2002) (classifying as fighting words the repeated sh o u tin g of obscenities where accompanied by challenges to the officers, and taunts re g a rd in g the officers' lack of success in bringing the suspect under control). In light of the facts as the court must view them, the record appears to suggest that

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M rs . Martin, at most, raised her voice to the Deputies and employed mild profanity. In light o f State v. Perkins, 412 S.E.2d 385, the court finds that Mrs. Martin's language, in context, d o e s not rise to the level of fighting words and that Deputies Fields and Clark lacked p ro b a b le cause to arrest her for public disorderly conduct or breach of peace. c. P r o b a b le Cause as to Obstruction of Justice

T h e Deputies asserted at the hearing that probable cause existed to arrest Mrs. Martin f o r common law obstruction of justice. Under South Carolina common law, "it is an offense to do any act which prevents, obstructs, impedes, or hinders the administration of justice." S tate v. Cogdell, 257 S.E. 748 (S.C. 1979). However, as the Deputies fail to direct the court to the conduct they assert provides the basis for probable cause as to common law obstruction o f justice, the court is left to assume that the Deputies rely on Mrs. Martin's alleged swinging a n d profanity, which conduct she has flatly denied. As the court must resolve all factual d is p u te s in favor of Mrs. Martin, any reliance upon Mrs. Martin's alleged swinging and p ro f a n ity cannot support probable cause for common law obstruction of justice. d. P r o b a b le Cause as to Inciting a Riot

T h e Deputies assert that probable cause existed to arrest Mrs. Martin for inciting a rio t. They direct the court to S.C. Code Ann. § 16-5-130 (2003), which prohibits a person to riot, participate in a riot, or incite or promote a riot. However, pursuant to State v. Alls, S .C . Code Ann. § 16-5-130 applies solely to riots concerning civil rights, and is inapplicable a s applied to the facts of this case. Accordingly, the Deputies have failed to establish

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p ro b a b le cause as to inciting a riot. C. M r. and Mrs. Martin Assert Claims of Excessive Force Pursuant to § 1983

The alleged applications of excessive force occurred during the course of the s e q u e n tia l arrests of Mr. and Mrs. Martin, implicating their respective Fourth Amendment rig h ts. See Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). In evaluating whether a c laim of excessive force was unreasonable under the Fourth Amendment, the court should a ss e ss "whether the force used to carry out a particular arrest balances the nature and quality o f the intrusion on the individual's Fourth Amendment interest against the importance of the g o v e rn m e n ta l interests alleged to justify the intrusion." Martin v. Gentile, 849 F.2d 863, 868 (4 th Cir. 1988). The right to make an arrest comes with the right to "use the amount of force th a t a reasonable officer would think necessary to take the person being arrested into c u s to d y." Id. at 869. Accordingly, liability for even serious injury inflicted during an arrest d e p e n d s on whether the officer acted reasonably, taking into account the split-second ju d g m e n ts often necessary in tense, dangerous environments. In short, the more exigent the c irc u m s ta n c e, the more the arresting officer can do. Id. H o w e v e r, if the injuries suffered by either Mr. or Mrs. Martin were de minimus, the F o u rth Amendment does not recognize his or her claim. Fourth Circuit caselaw appears to re q u ire more than de minimus injury in the Fourth Amendment context. See Carter v. M o rris , 164 F.3d 215, n.3 (4th Cir. 1999) (finding no excessive force where tight handcuffs a n d a push of the plaintiff's leg constituted extent of injury); but see Jones v. Buchanan, 325

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F .3 d 520, n.8 (4th Cir. 2003) (stating that the difference between the Fourth and Fourteenth A m e n d m e n t analysis is the Fourteenth Amendment's required showing of misconduct a m o u n tin g to punishment and that results in more than de minimus injury). When assessing th e character of a de minimus injury, albeit in the Fourteenth Amendment context, the Fourth C irc u it has held that "temporary swelling and irritation is precisely the type of injury this c o u rt considers de minimus." Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998); see also S ta n le y v. Hejirika, 134 F.3d 629, 637­38 (4th Cir.1998) (holding that "bruising of his right a rm , left jaw, left and right wrists and back, and a tooth which was loosened" constituted de m in im u s injury); Cox v. Gaskins, 2003 WL 23857306, at *2 (E.D.N.C. May 30, 2003) (f in d in g that two lacerations to plaintiff's head and an injury to his nose were de minimus in ju ri e s ). 1. E x c e ss iv e Force as to Mr. Martin

T h e alleged excessive force applied to Mr. Martin consists of Deputy Fields allegedly c u f f in g Mr. Martin's right hand, slamming him to the ground, kneeing him several times, and th e n emptying a canister of mace on him. Mr. Martin's primary argument is that because D e p u t y fields lacked probable cause to arrest, any force was excessive. His alternative arg u m en t posits that Deputy Fields's actions were excessive under the circumstances, as Mr. M a rtin complied with all of Deputy Fields's commands up to the point when Deputy Fields d e p lo ye d mace. M r . Martin asserts that he suffered abrasions and bruises, as well as post traumatic

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s tre ss disorder as a result of the force applied during his arrest. However, the court finds that h is injuries fall within the Fourth Circuit's definition of de minimus injury because Mr. M a rtin asserts no injury beyond scrapes and abrasions, and points to no evidence in the re c o rd that the deployment of the mace caused any more than temporary, minor irritation. A c c o rd in g ly, Mr. Martin's injuries are not constitutionally cognizable under the Fourth A m e n d m e n t. 2. E x c e ss iv e Force as to Mrs. Martin

M rs . Martin alleges that the Deputies jointly grabbed her and slammed her into the b u m p e r of a patrol car. She claims injuries including a neck that was "a little stiff" and back p a in ; the hospital issued her pain medication and discharged her without further treatment. A t no point since the incident has she sought medical attention. Accordingly, Mrs. Martin a p p e ars to allege only de minimus injury and her claim for excessive force is denied. See, e.g., Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998); Foster v. Metro. Airports Comm'r, 9 1 4 F.2d 1076, 1082 (8th Cir. 1990) (We do not believe that [Plaintiff's] allegations of pain as a result of being handcuffed, without some evidence of more permanent injury, are su ff icien t to support his claim of excessive force."). D. F irs t Amendment Retaliation Claims Pursuant to § 1983

B o th Mr. Martin and Mrs. Martin allege retaliation in response to First Amendment a c tiv itie s. To establish a First Amendment retaliation claim, a plaintiff must establish three e le m e n ts : (1) that the speech was protected, (2) that the defendant's alleged retaliatory action

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a d v e rse ly affected the constitutionally protected speech, and (3) that a causal relationship e x is te d between the speech and the defendant's retaliatory action. Trulock v. Freeh, 275 F.3d 3 9 1 (4th Cir. 2001). Speech is protected if it is a matter of public concern. Whether speech to u c h e s on the public concern turns on whether its content, form and context affect the s o c ie ta l, political, or general well-being of a community. See Edwards v. City of Goldsboro, 1 7 8 F.3d 231, 246 (4th Cir. 1999); Scruggs v. Keen, 900 F. Supp. 821 (W.D.Va. 1995). 1. M r. Martin's First Amendment Claim

Mr. Martin asserts that his attempt to question his arrest resulted in his arrest. H o w ev er, as Deputy Fields established probable cause prior to arresting Mr. Martin, the court f in d s it highly unlikely that Deputy Fields arrested Mr. Martin as a result of engaging in any p ro tec ted conduct. Furthermore, Mr. Martin's questioning of Deputy Fields also appears to b e more of a matter of personal interest, rather than speech of public concern. Because Mr. M a rtin does not adequately show that his speech was protected, and because he fails to d e m o n s tra te sufficient causation between his comments and his arrest, he fails to state a c laim under the First Amendment. 2. M rs. Martin's First Amendment Claim

M rs . Martin asserts that her attempts to photograph the Deputies' conduct toward her h u sb a n d resulted in her arrest. To prevail she must establish the three elements set forth a b o v e . First, Mrs. Martin must establish that her attempts to record her husband's arrest was p ro te c te d speech. Mrs. Martin attempted to photograph what she perceived as wrongful

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g o v e r n m e n t conduct. See Hurley v. Irish American Gay, Lesbian and Bisexual Group of B o s to n , 515 U.S. 557, 569 (1995); see also Massachusetts v. Oakes, 491 U.S. 576, 591­92 (1 9 8 9 ) ("the Constitution looks beyond written or spoken words as a medium for expression) (B re n n a n , J., dissenting). She was, in effect, criticizing government action, which is plainly a matter of public concern. Accordingly, she appears to have been engaged in protected a c t i v i t y. S e c o n d , Mrs. Martin must show that the Deputies interfered with her speech. Here, th e Deputies arrested Mrs. Martin, which inhibited additional photography of her husbands a rre st. Her arrest satisfied this element. T h ird , Mrs. Martin needs to show a causal relationship between her photography and th e Deputies' conduct. Based on the facts as the court must view them, the Deputies arrested M rs. Martin while she was photographing an arrest, and without probable cause. The facts su g g e st that a reasonable jury could conclude that the Deputies may have arrested her in re a ctio n to her photography. Because the Deputies lacked probable cause to arrest her, and b e c a u se seized her camera and deleted pictures of the arrest off of it, a reasonable jury could f in d for Mrs. Martin based on her version of the facts. B a se d on the foregoing, Mrs. Martin states a colorable First Amendment claim, while M r. Martin does not.

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E.

S tate -L a w Claims Against Sheriff Leon Lott in his Representative Capacity U n d e r The South Carolina Tort Claims Act

Mr. and Mrs. Martin assert claims for false imprisonment, false arrest, and battery. T h e s e claims are not asserted against the Deputies in their individual capacity, but rather ag ains t Sheriff Leon Lott, as the Deputies' representative under the South Carolina Tort C laim s Act ("SCTCA"), S.C. Code Ann. § 15-78-70(c) (2005). However, it is well

e sta b lis h e d under South Carolina law that a county sheriff is a state official and immune from s u it in federal courts pursuant to the Eleventh Amendment. Gulledge v. Smart, 691 F. Supp. 9 4 7 , 954 (D.S.C. 1988), aff'd 878 F.2d 379 (4th Cir. 1989) (unpublished table decision); see a l s o Stewart v. Beaufort County, 481 F. Supp. 483, 492 (D.S.C. 2007). Because Mr. and M rs . Martin assert SCTCA claims solely against Sheriff Leon Lott, this court lacks j u r is d ic tio n to hear the state-law claims. Gulledge, 691 F. Supp. at 954. Accordingly, p u rsu a n t to 28 U.S.C. § 1447(c), and because this case was originally removed to from state co u rt, this court must remand the state-law claims. Roach v. W. Va. Reg'l Jail & Corr. F a c ility Auth., 74 F.3d 46, 49 (4th Cir. 1996) (plain language of § 1447 compels remand ra th e r than dismissal without prejudice); see also, Wisconsin v. Dep't of Corr. v. Schacht, 5 2 4 U.S. 381, 392­93 (1998) (a federal court can proceed to hear properly removed claims a f ter remanding claims barred by the Eleventh Amendment) III. C o n c lu s io n B a se d on the foregoing, the court grants the Deputies' motion for summary judgment a s to Mr. Martin on all claims, and as to the claim of excessive force asserted by Mrs. Martin. 21

M rs . Martin's § 1983 claims for illegal seizure and false arrest, and retaliation in violation o f the First Amendment remain for trial. Because the court finds that it lacks jurisdiction to h e a r Mr. Martin's and Mrs. Martin's claims against Sheriff Leon Lott pursuant to the E le v e n th Amendment, those claims are remanded to the Richland County Court of Common P le a s . The trial of this case will proceed as scheduled during the March/April 2010 term of c o u rt. Jury selection will take place on March 9, 2010. IT IS SO ORDERED.

F eb rua ry 9, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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