Floyd v. Gardner et al

Filing 55

ORDER granting 43 Motion for Summary Judgment; granting in part 44 Motion for Summary Judgment, dismissing plaintiff's federal claims pursuant to 42 U.S.C. 1983 with prejudice and dismissing plaintiff's state-law claims without prejudice. Signed by Honorable Joseph F Anderson, Jr on 04/08/2010.(bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION J a m e s Edward Floyd, P l a in tif f , vs. In v e stig a to r Wesley J. Gardner; S h e rif f Anthony Dennis; and Linda M ye r s , D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) ) C / A No.: 3:09-1147-JFA

ORDER

T h is matter comes before the court on the summary judgment motions of Sheriff A n th o n y Dennis ("Dennis") and Investigator Wesley Gardner ("Gardner") [dkt. # 43], and L i n d a Meyers ("Meyers") [dkt. # 44]. The motions have been fully briefed and the court h e a rd oral argument on April 7, 2010. This order serves to announce the ruling of the court. I. F a c tu a l and Procedural Background A bomb exploded on February 12, 2009, on Meyers' front stoop in Sumter, South C a ro lin a . In the aftermath of the explosion, Meyers observed a car drive away with who she b e lie v e d was James E. Floyd ("Floyd"), her ex-husband, in the passenger's seat. As a bomb h a d recently detonated and Meyers was protected from Floyd by a family court protective o rde r, she contacted the police and recounted the events, identifying Floyd as the bomber. T h e following morning, Dennis reviewed the prior day's incident reports, discussed the re p o rt with several officers, and determined that Floyd should be arrested and instructed G a rd n e r to obtain a warrant. Gardner thereafter procured a warrant from a magistrate for

F lo yd 's arrest for possession of an explosive device and violation of the court protective o rde r. Gardner served the warrant and arrested Floyd on February 13, 2009. On February 1 7 , 2009, investigation by Gardner revealed that three teenagers detonated the bomb, and not F lo yd . The charges against Floyd were dismissed and he was set free on February 18, 2009. A story appeared in the February 14, 2009 edition of The Item, a newspaper in S u m te r, which quoted Dennis as stating "[Floyd] set off some type of bomb, and there was a n explosion" and attributed a comment to Meyer indicating that she recognized Floyd's car a f te r the explosion. O n May 2, 2009, Floyd filed suit in The United States District Court of the District o f South Carolina alleging violation of his Fourth Amendment rights, false arrest, malicious p ro s e c u tio n , violation of due process pursuant to 42 U.S.C. § 1983, and civil conspiracy. The d e f en d a n ts thereafter moved for summary judgment. Floyd responded to both motions, and a b a n d o n e d his due process claim pursuant to the Fourteenth Amendment. II. D is c u ss io n A. L eg al Standard

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

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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 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. D e n n is and Gardner's Motion for Summary Judgment

D e n n i s and Gardner assert that to the extent that they are sued in their official c a p a c ity, they are not persons under § 1983 and that the Eleventh Amendment prevents suit a g a in s t them in federal court. They also assert that to the extent that Floyd pursues state law c laim s against them under the South Carolina Tort Claims Act, the sheriff of Sumter county in his official capacity is their statutory representative and he is not amendable to suit in f e d era l court pursuant to the Eleventh Amendment. Dennis and Gardner also contend that a n y § 1983 claims against them in their individual capacities must fail as probable cause to a rre st was readily apparent. In support of this position, they cite the protective order issued

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b y the family court, the urgent 911 call, and the positive identification of Floyd by Meyers. T h e y allege that the remaining claims fail for want of evidentiary support 1. T h e Eleventh Amendment

T h e Eleventh Amendment bars suit against a state in federal court absent waiver or a b ro g a t io n . See U.S. Const. amend. XI; Hans v. Louisiana, 134 U.S. 1 (1980). But see L a p id e s v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002) (removal waives E le v e n th Amendment immunity from suit); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1 9 9 6 ) (Congress may abrogate States' immunity from suit pursuant to a clear intention to d o so and a valid exercise of power). It is well established under South Carolina law that a c o u n ty sheriff is a state official and suit against him operates as a suit against the state of S o u th Carolina. Gulledge v. Smart, 691 F. Supp. 947, 954 (D.S.C. 1988), aff'd 878 F.2d 379 (4 th Cir. 1989) (unpublished table decision); see also Stewart v. Beaufort County, 481 F. S u p p . 2d 483, 492 (D.S.C. 2007). Accordingly, to the extent that Floyd asserts § 1983 claims a g a in s t Dennis and Gardner in their official capacities, those claims are barred by the E lev e n th Amendment. Also, to the extent that Floyd seeks to recover under the South C a ro lin a Tort Claims Act ("SCTCA"), Dennis, in his official capacity, is the appropriate re p re se n ta tiv e and is immune from suit in federal court. Floyd's claims against Dennis and G a rd n e r, in their individual capacities, shall be addressed below. 2. T h e Fourth Amendment

T h e Fourth Amendment prohibits law enforcement officers from making unreasonable

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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). However, a public official cannot be charged with false arrest w h e n he arrests a defendant pursuant to a facially valid warrant. Porterfield v. Lott, 156 F.3d 5 6 3 (4th Cir. 1998). Rather, claims seeking damages for the period after legal process has iss u e d "are analogous to the common-law tort of malicious prosecution." Id.; Brooks v. City o f Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996) (the Fourth Amendment is "broad e n o u g h to encompass a claim that legal process issued without probable cause"). Such a c la im may arise where an individual was seized pursuant to legal process that was not su p p o rted by probable cause and the resulting criminal proceedings terminated in his favor. B ro o k s , 85 F.3d at 183. The facts before the court indicate that the proceedings terminated in Floyd's favor. Accordingly, the question before the court is whether probable cause e x is te d to arrest Floyd. " P ro b a b le cause" means "facts and circumstances within the officer's knowledge that a re sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the c irc u m sta n c e s shown, that the suspect has committed, is committing, or is about to commit a n offense." Michigan v. De Fillippo, 443 U.S. 31, 37 (1979). However, "[w]hile probable c a u se requires more than bare suspicion, it requires less than that evidence necessary to c o n v i c t." United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998). Probable cause may also b e based on uncharged conduct. See, e.g., Davenpeck v. Alford, 543 U.S. 146, 154­56 (2 0 0 4 ); Jackson v. City of Abbeville, 623 S.E.2d 656, 660 (S.C. App. 2005).

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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). "As its name suggests, p ro b a b le cause involves probabilities--judgment calls that are tethered to context and rooted in common sense." United States v. White, 549 F.3d 946, 947 (4th Cir. 2008). To prove an a b se n c e of probable cause to arrest under the Fourth Amendment, the arrestee must allege a set of facts which make it unjustifiable for a reasonable officer to conclude he is violating th e law. Brown v. Gilmore, 278 F.3d 362 (4th Cir. 2002). Floyd's conduct, as it was known to Gardner and Dennis, consisted of an incident re p o rt prepared by the Deputy Pomichalek, the officer who responded to the 911 call, and the 9 1 1 call. (Gardner Aff. ¶ 6.) A protective order issued by a family court to protect Meyers f ro m Floyd was on file at the police station. (Id.) In both the incident report and the 911 call, M e ye rs identified her husband as the individual who detonated the bomb on her porch. (G a rd n e r Aff. Ex. A, Ex. B.) Discussion between Captain Turner and Dennis concerning the in c id e n t report, the 911 call, and the protective order resulted in Turner advising Gardner that h e believed there was sufficient evidence that Floyd committed the suspect crimes to seek a warrant for his arrest. (Gardener Aff. ¶ 4.; Dennis Dep. 6­7.) Gardner agreed and p ro c e ed e d to the magistrate's office to obtain a warrant. (Id.) Gardner informed the m a g i str a te of the incident report, the order of protection, and the 911 call made by Meyers; th e magistrate signed warrants for possessing a destructive device and for violation of an

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o rd e r of protection. (Id. ¶ 6.) T h e crime of possessing a destructive device encompasses conduct whereby a person " p o ss e ss e s, manufactures, transports, distributes, or possesses with the intent to distribute a d e stru c tiv e device or any explosive, incendiary device, or over-pressure device or toxic su b stan ce or material which has been configured to cause damage, injury, or death" or where a person "possesses parts, components, or materials which when assembled constitute a d e s tr u c tiv e device." S.C. Code Ann. § 16-23-720(c) (Supp. 2009). The incident report u n e q u iv o c a lly stated that Floyd placed the bomb on the front of Meyers' house and that M e ye rs saw Floyd in the passenger seat of a car as it fled the scene shortly after detonation. T h e incident report also noted that pieces of aluminum foil and plastic were in the area, e v id e n c in g the recent explosion. (Gardner Aff. Ex. A.) Importantly, Meyers never hedged in her identification of Floyd as the bomber in either the 911 call or in the incident report. B a se d on the evidence in the record, the court finds that Dennis and Gardner both possessed s u f f ic ie n t knowledge to charge Floyd with the crime of possessing a destructive device. The magistrate also issued a warrant for violation of S.C. Code Ann. § 16-25-20(E) (S u p p . 2009), which requires a person charged pursuant to Chapter 25 of Title 16 to appear b e f o re a judge for disposition of his case. That provision does not appear to apply to the f a cts of this case. However, because probable cause may rest upon uncharged conduct, and b e c au s e Gardner had reason to believe that Floyd had violated a court order of protection, th e court finds that Gardner possessed probable cause to arrest Floyd pursuant to S.C. Code

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A n n . § 16-25-20(D) (Supp. 2009). Section 15-25-20(D) makes it a crime to violate a courtis s u e d protective order. Accordingly, because the court finds that a facially valid warrant issued, and that p ro b a b le cause existed to arrest Floyd, both the false arrest and malicious prosecution claims g r o u n d e d in the Fourth Amendment are dismissed with prejudice as to Gardner and Dennis. T o the extent that Floyd asserts that the warrant was defective because it was based o n a dishonest affidavit, he has failed to satisfy the burden established in Franks v. Delaware, 4 3 8 U.S. 154 (1978), and argues in direct contradiction to his deposition testimony. Franks r e q u ir e s a "substantial showing" that an affidavit was executed with knowledge it was false o r with a reckless disregard for the truth. In the light most favorable to Floyd, the record c o m p e ls the court to conclude that the information possessed by Gardner and Dennis s u p p o rte d probable cause to arrest, especially where Floyd stated in his deposition that "I d o n 't have any evidence" that Gardner falsely swore out the arrest warrant. (Floyd Dep. 1 1 4 : 3 ­ 5 .) To find that Gardner recklessly or intentionally provided false information to the m ag istrate would effectively require Gardner to question the veracity of the incident report a n d the credibility of the 911 call without cause and in the absence of such an allegation from F lo yd . (Id.) Moreover, the Fourth Circuit has found that it is reasonable for a police officer to base his belief in probable cause on a victim's identification of his attacker. See T o rc h in s k y v. Siwinski, 942 F.2d 257 (4th Cir. 1991) ("It is surely reasonable for a police

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o f f ice r to base his belief in probable cause on a victim's reliable identification of his attac k er."); McKinney v. Richland County Sheriff's Dep't, 431 F.3d 415, 418­19 (4th Cir. 2 0 0 5 ) ("The fact that [the officer] did not conduct a more thorough investigation before see k ing an arrest warrant does not negate the probable cause established by the victim's id e n tif ic a tio n ." ). Floyd cannot establish that at the time the warrant was sworn that the in f o r m a tio n was provided with reckless disregard for the truth or with an intent to be d i s h o n e s t because the record fails to support such an argument. Meyers identified the b o m b e r as her husband without hesitation on both the 911 call and in the incident report. P u r s u a n t to Torchinsky and McKinney, Floyd cannot show that Gardner or Dennis acted u n re a s o n a b ly, quite the contrary. 3. S ta te -L a w False Arrest and Malicious Prosecution

F lo yd 's state-law claims against Gardner and Dennis for false arrest and malicious p rose cu tio n fall under the SCTCA. See S.C. Code Ann. 15-78-70 (2005). The record re f le c ts that at all times relevant to this proceeding Gardner and Dennis acted within the s c o p e of their official duties. Floyd has not alleged facts sufficient to establish that Gardner a n d Dennis acted outside their official duties nor has he argued, or alleged facts to support, th a t their conduct constitutes "actual fraud, actual malice, intent to harm" or involved "moral tu rp itu d e ." S.C. Code Ann. § 15-78-60(17) (2005). As such, Sheriff Dennis in his official c a p a c ity is the proper party, he is immune from suit in federal court pursuant to the Eleventh A m en d m en t, and Floyd's state law claims for false arrest and malicious prosecution are

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d is m is s e d without prejudice for want of jurisdiction.1 4. C iv il Conspiracy

F lo yd 's allegation of civil conspiracy, in toto, states that "[Meyers, Gardner, and D e n n is ] acted together and with others to injure [Floyd] by committing unlawful acts and/or c o m m ittin g lawful acts by unlawful means," and that "acts were taken in furtherance of a c o n s p ir a c y" and "as a result . . . [Floyd] was terrorized, underwent extreme emotional distress a n d has suffered as heretofore set forth." (Compl. ¶¶ 25­27.) Floyd failed to specify in the c o m p lain t whether he asserts his civil conspiracy claim pursuant to state law or pursuant to § 1983. Critically, in Floyd's deposition, he responded to the question "Do you have any in f o rm a tio n that Gardner and Dennis conspired with Myers [sic] to have you arrested?" with " O h , no sir." (Floyd Dep. 113:13­114:2.) Argument at the hearing confirmed the infirmity o f Floyd's argument, where his counsel stated it was merely his belief that the parties acted in concert and offered nothing more than speculation. A n essential element to a § 1983 claim for civil conspiracy is the factual allegation of a n overt act in furtherance of the conspiracy. See Hinkle v. City of Clarksburg, 81 F.3d 416 (4 th Cir. 1996). Floyd has failed to allege any such overt act and admits that he has no e v id e n c e beyond the legal conclusions stated in his complaint. Accordingly, his claim for c o n sp ira c y pursuant to § 1983 must fail. C.
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M e ye rs ' Motion for Summary Judgment

Even if the court could properly consider the state law claims against Sheriff Dennis in his official capacity, such claims would fail due to the presence of probable cause. 10

M e ye rs contends that, as a private citizen in a private capacity, she cannot be held liab le pursuant to the Fourth Amendment. Meyers asserts that this is especially true where sh e did not personally seize Floyd. She also contends that Floyd's claims for false arrest, m a lic io u s prosecution, and civil conspiracy fail for want of evidentiary support. 1. T h e Fourth Amendment

The Fourth Amendment proscribes government seizure of a person absent probable c a u s e . The Supreme Court has "consistently construed this protection as proscribing only g o v e rn m e n tal action; it is wholly inapplicable `to a search or seizure, even an unreasonable o n e , effected by a private individual not acting as an agent of the Government or with the p a rtic ip a tio n or knowledge of any governmental official.'" United States v. Jacobsen, 466 U .S . 109 (1984) (quoting Walter v. United States, 447 U.S. 649, 662 (1980). The question c o m m o n ly posed is whether an individual acted as an "instrument" or "agent" of the g o v e rn m e n t. Determining whether the requisite agency relationship exists "necessarily turns o n the degree of the Government's participation in the private party's activities, . . . a question th a t can only be resolved `in light of all the circumstances.'" United States v. Jarrett, 338 F .3 d 339 (4 th Cir. 2003) (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 6 1 4 ­ 1 5 (1989). Such a fact-intensive determination turns on common law agency principles. Id . Floyd has put forth no evidence to suggest that Meyers was acting as an "instrument" or " a g e n t of the state." Mere speculation will not suffice to defeat summary judgment. A c c o rd in g ly, any claim against Meyers pursuant to the Fourth Amendment, whether for

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ille g a l seizure or malicious prosecution, or its § 1983 analogue as discussed in Porterfield v. L o tt, 156 F.3d 563, fails as a matter of law. 2. C iv il Conspiracy

T h e court adopts by reference the analysis provided above as it related to Floyd's c la im for civil conspiracy. See Part II.A.4. Putting aside the serious question as to whether a claim for civil conspiracy with a nongovernment actor is actionable pursuant § 1983, the c o u rt finds that Floyd has failed to put forth evidence beyond rank speculation that would s u p p o rt a claim for § 1983 civil conspiracy. Accordingly, Floyd's claim for civil conspiracy a g a in st Meyers is dismissed with prejudice for failure of evidentiary support. 3. R e m a in in g State-Law Claims

F lo yd 's remaining claims against Meyers include malicious prosecution, false arrest, a n d , possible, state-law civil conspiracy. All federal claims against Gardner, Dennis, and M eyers have been dismissed with prejudice. Accordingly, pursuant to 28 U.S.C. 1367(c)(3), th is court hereby exercises its discretion to decline to exercise supplemental jurisdiction over th e remaining state law claims. III. C o n c lu s io n B ase d on the foregoing, the court grants Dennis and Gardner's motion for summary jud g m en t in full [dkt. # 43] and Meyer's motion for summary judgment in part [dkt. # 44]. T h e court finds that all Fourth Amendment and constitutional civil conspiracy claims against G a rd n e r and Dennis in their individual capacities pursuant to § 1983 are dismissed with

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p re ju d ic e . As the court dismisses Floyd's state-law claims for false arrest and malicious p ro s e c u tio n against Gardner and Dennis pursuant to the Eleventh Amendment, such d ism iss a l shall be without prejudice. To the extent that Floyd asserts a state-law civil c o n sp ira c y claim against Gardner and Dennis, the court declines to exercise jurisdiction over th e claim and dismisses the same without prejudice. The court also hereby dismisses with p re ju d ic e all § 1983 claims against Meyers, and declines to exercise supplemental ju ris d ic tio n over the remaining state-law claims against her; such claims are dismissed w ith o u t prejudice. IT IS SO ORDERED.

A p ril 8, 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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