Stoneburner et al v. Thompson et al
Filing
94
ORDER granting 49 Motion for Summary Judgment; granting 52 Motion for Summary Judgment, dismissing all claims asserted against all Defendants with prejudice. Signed by Honorable Joseph F. Anderson, Jr. on 05/20/2014.(bshr, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Craig B. Stoneburner; 2715 Millwood LLC;
2731 Millwood LLC; 1105 Fairview LLC;
1107 Fairview LLC; 1921 Barnwell LLC;
1923 Barnwell LLC; 1925 Barnwell LLC,
C/A No. 3:12-cv-3551-JFA
Plaintiffs,
vs.
Jerry L. Thompson; Timothy C. Ryan;
Matthew Lam; Fredrick M. Delk; Marc S.
Mylott; and City of Columbia,
ORDER
Defendants.
I.
INTRODUCTION
This matter comes before the court on Defendants’ Motions for Summary Judgment in
this action alleging that the City of Columbia has, for about twenty years, selectively enforced
certain regulations, in an effort to stifle the existence of halfway houses, in violation of federal
and state law. Craig B. Stoneburner, the sole owner of various LLCs named after the residential
and commercial properties at issue, brings this action on behalf of himself and the LLCs
(collectively, “Plaintiffs”) against the City of Columbia (“City”) and city officials and employees
(“Individual Defendants”) (collectively, “Defendants.”).
The court has held two extensive
hearings on this motion, and, upon the court’s request,1 received additional briefing from
Plaintiffs. For the reasons given below, the court grants Defendants’ motions in their entirety.
1
The court requested Plaintiffs to file a brief of 35 pages or less, according to local rules, and to provide a top ten
list of worst things done to Plaintiffs by the City. Plaintiffs exceeded the page limit, and declined to provide the
court a top ten list, urging the court to look at the entirety of the circumstances.
1
Plaintiffs assert the following causes of action against the following Defendants:
Defendant(s)
Thompson2, Ryan3, Mylott4
Causes of Action
Abuse of Process, Malicious Prosecution, Civil
Conspiracy, Fair Housing Act
Civil Conspiracy, Fair Housing Act
Fair Housing Act, § 1983
Lam5, Delk6
City of Columbia
Both the City and the Individual Defendants, through separate counsel and motions, move for
summary judgment on all claims.
II.
FACTUAL AND PROCEDURAL HISTORY
The facts recited herein are viewed in the light most favorable to Plaintiffs. Most of
Plaintiffs’ properties are leased as recovery houses or halfway houses for recovering alcoholics
and drug addicts. Some of the residents have been previously incarcerated, and some continue to
have trouble with the law. Although the exact use of each property has varied over time, the
Millwood properties have been leased mostly to the “Cambridge House,” a non-profit with the
aim of rehabilitating its residents. The Fairview properties have served as overflow housing for
the Cambridge House when the Millwood properties were at full occupancy.
One of the
properties, 2731 Millwood, is a commercial property that has been mostly vacant for the last
twenty years.
The city alleges that its involvement with the properties was triggered either by
construction and renovation projects, or from code violations. Plaintiffs, on the other hand, see
discriminatory citizen complaints as motivating the City’s enforcement actions. One Defendant,
Fred Delk, is a resident of the neighborhood surrounding the properties and the Executive
2
Jerry Thompson is a Building Official for the City of Columbia.
Tim Ryan is a Building Inspector for the City of Columbia.
4
Marc Mylott, who left the City of Columbia in 2010, was the previous Director of Development Services for the
City of Columbia, which includes the Building Department.
5
Matt Lam was a Deputy Fire Marshall / Fire Investigator for the City of Columbia.
6
Fred Delk is the Executive Director of the Columbia Development Corporation. Delk is also a resident of the
neighborhood where the properties at issue are located.
3
2
Director of the Columbia Development Corporation.7 Mr. Delk voiced his concerns about the
group homes in the neighborhood to the City, and offered to purchase certain properties owned
by Stoneburner.
Plaintiffs cite to several other communications, internally, as well as between City of
Columbia officials and various neighborhood advocates, wherein there is discussion about the
negative effect that the group homes have on the property values of homes in the adjoining areas
and the negative social effects of the group homes on the adjoining areas. 8 Plaintiffs use these
letters to support their claim that the city practiced an unofficial “‘get Stoneburner’ or ‘battle
with Stoneburner’ policy, coupled with a ‘shut down the group homes’ policy.” ECF No. 59, p.
47. Plaintiffs claim that this policy has been in effect for about twenty years, presenting an
enormous amount of evidence in opposition to the present motions.
The court, therefore,
summarizes the evidence over the entire period and provides what it believes to be the most
relevant instances of alleged misconduct by Defendants.
In July 2, 2008, Stoneburner was served three summonses, all related to alleged licensing
and code violations. One of the summonses related to the failure of Plaintiffs to have a licensed
contractor supervise renovations of fire damage at one of the properties.
Tim Ryan did,
however, issue a license for the renovations to a Mr. Howell. According to Mr. Ryan, Mr.
Howell cancelled the license because Plaintiff Stoneburner used his own workers to perform the
work. Mr. Howell did not supervise those workers and some of those workers were Cambridge
House residents. This story is corroborated by a letter from Mr. Howell to Mr. Ryan. Another
one of the three Summonses pertained to a plumbing code violation and the last summons related
to another licensing issue. On August 12, 2008, Ryan issued a construction permit to a new
7
Mr. Delk says his “job duties are related to economic development and the creation of public/private partnerships.”
The court sees no harm in citizens petitioning their government for a redress of grievances. See U.S. CONST.
amend. I.
8
3
contractor for the property at issue—the same day the request for a permit was submitted. In
June 2009, a Certificate of Occupancy was issued for the property, after the construction was
completed and passed inspection. About two months later, the three summonses were nol
prossed and Stoneburner wrote a letter apologizing to Mr. Ryan and a building official, Jerry
Thompson.
Next, Plaintiffs complain that, “in 2010,” they were harassed when Defendant Lam
“summon[ed] a big, red, City of Columbia fire truck … [to] make a spectacle by standing on the
truck to view the roof” of one of Stoneburner’s properties, in response to a complaint from
Defendant Delk.9 ECF No. 79, p. 24. Plaintiffs also say that Defendant Lam “callously and
intimidatingly and disrespectfully barge[d] into the room of a female occupant who had some
mental issues, and was still in her nightgown.” Id. at 25. The record, however, shows that Lam
was accompanied by a resident or property manager, with apparent authority to escort Lam
throughout the property when the alleged barge-in occurred. ECF No. 49, p. 16-17.
On March 15, 2012, Lam responded to a complaint regarding the living conditions at
Plaintiffs’ properties. Lam issued Fire Department Inspection Reports at 1921, 1923, and 1925
Barnwell Street for various violations of the International Property Maintenance Code and the
International Fire Code. The reports allowed for 20 days to cure the property code violations,
and 30 days to cure the fire code violations. Fifty-six days later, Lam inspected the properties
and determined that no action had been taken to remedy the violations. Lam then issued twelve
summonses to Bonnie Scarborough, the manager of the Cambridge House. Ms. Scarborough
pleaded guilty to three of the summonses (one at each property) and the remaining nine
summonses were nol prossed.
9
Apparently, Plaintiff’s counsel wants the court to take Plaintiffs’ word on this, because the citation following this
quotation reads: “See Scarborough Depo., not in possession of Plaintiff’s counsel.”
4
III.
LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered when a moving party has shown that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The court must determine
whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986). Summary judgment should be granted in those cases
where it is clear that there remains no genuine dispute as to material fact and inquiry into the
facts is unnecessary to clarify the application of the law. McKinney v. Bd. of Trs. of Mayland
Cmty. Coll., 955 F.2d 924, 928 (4th Cir. 1992). In deciding a motion for summary judgment, “the
judge’s function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
IV.
ANALYSIS
At the second hearing on this motion, the court asked Plaintiffs’ counsel for all of the acts
of any defendant after August 2, 2010—a relevant statute of limitations date. Plaintiffs and
Defendants cited to three acts: (1) Lam’s March 15, 2012 fire and building code reports citing
violations and providing a period within which to achieve compliance; (2) the 12 summonses
issued to Ms. Scarborough, 3 of which she pleaded guilty to, and 9 of which were nol prossed;
and (3) a June 24, 2011 notice left at one of the properties from a zoning inspector requesting
additional information regarding the status of the property as a “roominghouse/boardinghouse.”10
i.
Federal Claims
Plaintiffs have asserted claims under 42 U.S.C. § 1983 and the Fair Housing Act.
10
See ECF No. 59-6, p.11.
5
a. Fair Housing Act
Pursuant to the Fair Housing Act (“FHA”), “[a]n aggrieved person may commence a
civil action in an appropriate United States district court or State court not later than 2 years after
the occurrence or the termination of an alleged discriminatory housing practice, or the breach of
a conciliation agreement entered into under this subchapter, whichever occurs last, to obtain
appropriate relief with respect to such discriminatory housing practice or breach.” 42 U.S.C. §
3613 (emphasis added). The continuing tort theory, therefore, has been expressly adopted by the
FHA. Thus, the occurrence of an alleged discriminatory housing practice prior to August 2,
2010 is outside of the applicable statute of limitations, unless one act that is a piece of the larger
unlawful practice has occurred within the limitations period. The court, however, finds no
wrongdoing by Defendants under the FHA within the limitations period. Therefore, there is no
predicate for the continuing tort theory to revive actions that fall outside of the limitations period.
The FHA makes it unlawful:
(f)(1)“To discriminate in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buyer or renter because of a handicap of—
(A) that buyer or renter,
(B) a person residing in or intending to reside in that dwelling after it is so
sold, rented, or made available; or
(C) any person associated with that buyer or renter.
(2) To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection with such dwelling, because of a handicap of—
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after it is so
sold, rented, or made available; or
(C) any person associated with that person.
42 U.S.C. § 3604. Further, “It shall be unlawful to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or
6
on account of his having aided or encouraged any other person in the exercise or enjoyment of,
any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. §
3617. The Fourth Circuit has determined that clients of a provider of drug rehabilitation services
meet the general definition of persons under “handicap” in the Fair Housing Act for purposes of
determining whether a litigant’s refusal to rent apartments to the provider for use in the treatment
program constituted prohibited discrimination. United States v. S. Mgmt. Corp., 955 F.2d 914
(4th Cir. 1992). Therefore, the court will assume that the tenants of certain properties owned by
Plaintiffs11 are handicapped for purposes of the FHA.
Factors for the court to consider in evaluating the viability of a discriminatory decision
made by government officials include:
(1) the discriminatory impact of the official action;
(2) the historical background of the decision;
(3) the “specific sequence of events leading up to the challenged decision;”
(4) departures from the “normal procedural sequence,”
(5) departures from normal substantive criteria; and
(6) the legislative or administrative history of the decision.
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). The historical
background of the decision factor likely gives Plaintiffs the ability to present the entire twenty
year back-story here, and therefore, the court considers those twenty years in making its
determination under the FHA. Similarly, the “specific sequence of events leading up to the
challenged decision” may allow Plaintiffs to argue more broadly than they would otherwise be
allowed to argue under the two-year statute of limitations.
Looking to the long history cited and the totality of the circumstances, Plaintiffs argue
that “[i]n the instant case, the discriminatory motive is palpable, and needs no test.” ECF No. 79,
p. 21. The court disagrees. The March 15, 2012 Reports request that the properties be brought
11
Not all of the properties are used for housing of handicapped individuals.
7
in conformity with building and fire codes. Aside from the merit of the reports, the best
evidence in the record that there actually were code violations is that failing to correct the code
violations cited in those reports led to the issuance of 12 summonses. Three of those summonses
resulted in a guilty plea (one for each property) by the Cambridge House manager, as part of a
plea bargain. Finally, the June 24, 2011 notice left on the door of one of the properties was
merely a request by a zoning inspector for someone to contact him regarding the
“Roominghouse/Boardinghouse” status of the property. ECF No. 59-6, p.11. This does not rise
to the level of coercion, intimidation, threats, or interference, nor does it show discrimination.
After considering all of the Arlington Heights factors, including the twenty-year historical
background provided by Plaintiffs, the court concludes that no violation of the FHA occurred
within the statute of limitations period, and therefore, dismisses Plaintiffs’ FHA claim in its
entirety. Even though the continuing tort theory does apply, there is no continuing tort upon
which to base the FHA claim within the limitations period.
b. Section 1983
Plaintiffs’ cause of action pursuant to 42 U.S.C. § 1983, alleged only against the City
fails. The City cannot be held liable for the acts of its employees under § 1983, and Plaintiffs are
unable to establish an official policy—implicit or explicit—to “get Stoneburner” or “shut down
the group homes.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)
(“[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under § 1983.”). The
record in this case could not convince any reasonable juror that the City established an official
8
policy to “get Stoneburner.” Each action taken by the City against Stoneburner—over the last
twenty years—is more easily seen as a legitimate enforcement action, and even if there was a
discriminatory or improper animus in certain instances, certainly such actions do not rise to the
level of an official policy to “get Stoneburner.”
ii.
State Law Claims
The South Carolina Tort Claims Act (“SCTCA”) shortens the relevant statute of
limitations period as to all common law tort claims to two years and is applicable here. Parker v.
Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 280-81, 607 S.E.2d 711, 714 (S.C. Ct. App.
2005) (“The Tort Claims Act governs all tort claims against governmental entities and is the
exclusive civil remedy available in an action against a governmental entity or its employees.”);
S.C. Code Ann. § 15-78-70. The court finds that all Defendants acted in the scope of their
official duty, and that none of the Defendants’ conduct constituted “actual fraud, actual malice,
intent to harm, or a crime involving moral turpitude,” so as to arguably take Defendants outside
of the SCTCA’s two year statute of limitations.12 As discussed, the court finds that each action
taken by Defendants was taken for legitimate enforcement purposes.13 Because all actions here
were taken by defendants in the scope of their employment with the City of Columbia, the
SCTCA’s two year statute of limitations governs. Therefore, as with the FHA claim, the relevant
statute of limitations date is August 2, 2010: two years prior to the filing of the complaint. S.C.
Code Ann. § 15-78-110.
Under the SCTCA, a “governmental entity is not liable for a loss resulting from: … ”
12
Flateau v. Harrelson, 355 S.C. 197, 584 S.E.2d 413 (S.C. Ct.App.2003) (SCTCA’s “two-year statute of
limitations applies even if the Board members acted outside the scope of their official duties or if their actions
constituted fraud, actual malice, intent to cause harm, or a crime involving moral turpitude.”); but see also Smith v.
City of Greenwood, 2010 WL 2382479 (D.S.C. June 14, 2010) (Recognizing the limitations of the Flateau
decision).
13
To the extent that Defendant Delk acted outside of the scope of his official duty, the court finds that Delk, as a
resident of the surrounding neighborhood, engaged in protected First Amendment activity, by petitioning his local
government for a redress of grievances.
9
(3) execution, enforcement, or implementation of the orders of any court
or execution, enforcement, or lawful implementation of any process;
(4) adoption, enforcement, or compliance with any law or failure to adopt
or enforce any law, whether valid or invalid, including, but not limited to, any
charter, provision, ordinance, resolution, rule, regulation, or written policies;
(5) the exercise of discretion or judgment by the governmental entity or
employee or the performance or failure to perform any act or service which is in
the discretion or judgment of the governmental entity or employee; …
(12) licensing powers or functions including, but not limited to, the
issuance, denial, suspension, renewal, or revocation of or failure or refusal to
issue, deny, suspend, renew, or revoke any permit, license, certificate, approval,
registration, order, or similar authority except when the power or function is
exercised in a grossly negligent manner;
(13) regulatory inspection powers or functions, including failure to make
an inspection, or making an inadequate or negligent inspection, of any property to
determine whether the property complies with or violates any law, regulation,
code, or ordinance or contains a hazard to health or safety[.]
S.C. Code Ann. § 15-78-60.
Although Plaintiffs argue that the continuing tort doctrine applies generally in South
Carolina, the court can only locate law applying that doctrine in the context of nuisance law.
Silvester v. Spring Valley Country Club, 344 S.C. 280, 288, 543 S.E.2d 563, 567 (S.C. Ct. App.
2001) (‘[I]f the injury to neighboring lands is caused by negligence, or if the cause is abatable,
then there arises a continuing cause of action.”). Indeed, if there is any discernible rule on the
continuing tort doctrine in South Carolina, it is that the continuing tort doctrine is not generally
applicable. Harrison v. Bevilacqua, 354 S.C. 129, 141, 580 S.E.2d 109, 115 (S.C. 2003) (“We
decline to adopt the continuous treatment rule or the doctrine of continuing tort.”); Ins. Products
Mktg., Inc. v. Conseco Life Ins. Co., 2012 WL 3308368 at *9 (D.S.C. Aug. 13, 2012) (“The
South Carolina Supreme Court has refused to adopt the “continuing tort” doctrine in a medical
malpractice claim governed by the South Carolina Tort. It is unclear whether such a theory could
be applied to the type of claim presented here-a common law tort, rooted in property rights.”)
(citations omitted). However, because the court finds that no conduct within the limitations
10
period could revive prior state law claims, the court need not reach a determination of whether
the continuing tort theory applies to the state law claims.
a. Malicious Prosecution
The malicious prosecution claim must fail. The only proceeding within the limitations
period upon which to possibly base the malicious prosecution claim is the May 10, 2012 issuance
of 12 summonses to Ms. Scarborough. Law v. S. Carolina Dep't of Corr., 368 S.C. 424, 435,
629 S.E.2d 642, 648 (S.C. 2006) (“[T]o maintain an action for malicious prosecution, a plaintiff
must establish: (1) the institution or continuation of original judicial proceedings; (2) by or at the
instance of the defendant; (3) termination of such proceedings in plaintiff's favor; (4) malice in
instituting such proceedings; (5) lack of probable cause; and (6) resulting injury or damage.”).
The plea bargain entered into by Ms. Scarborough—pleading guilty to 3 of the charges and
having the remaining 9 nol prossed—leads the court to the conclusion that there necessarily was
probable cause for the issuance of the summonses. Further, as discussed, the court finds that
none of the Defendants acted with malice as to any action taken within the limitations period.
b. Abuse of Process
“The two essential elements of an abuse of process claim are (1) an ulterior purpose, and
(2) a willful act in the use of the process not proper in the conduct of the proceeding.” Argoe v.
Three Rivers Behavioral Ctr. & Psychiatric Solutions, 388 S.C. 394, 403 (S.C. 2010). “Some
definite act or threat not authorized by the process or aimed at an object not legitimate in the use
of the process is required.” Hainer v. Am. Med. Int'l, Inc., 328 S.C. 128, 136 (S.C. 1997). The
actions taken within the limitations period here simply do not support a definite act or threat not
authorized by the process used here. The March 15, 2012 Reports request that the properties be
brought in conformity with building and fire codes. Requesting conformity with those codes is a
11
legitimate reason for issuing those reports. The May 10, 2012 summonses—which were partly
pleaded guilty to and partly nol prossed—were likewise properly issued for legitimate building
and fire code violations. Finally, the June 24, 2011 notice left on the door of one of the
properties was merely a request by a zoning inspector for someone to contact him regarding the
“Roominghouse/Boardinghouse” status of the property.
ECF No. 59-6, p.11.
Finding
Defendants’ actions related to any conceivable use of process within the limitations period to be
legitimate, the court concludes that Plaintiffs’ abuse of process claim must fail.
c. Civil Conspiracy
“The elements of a civil conspiracy in South Carolina are (1) the combination of two or
more people, (2) for the purpose of injuring the plaintiff, (3) which causes special damages.”
Pye v. Estate of Fox, 369 S.C. 555, 566-67 (S.C. 2006). “[I]n order to establish a conspiracy,
evidence, direct or circumstantial, must be produced from which a party may reasonably infer the
joint assent of the minds of two or more parties to the prosecution of the unlawful enterprise.”
Island Car Wash, Inc. v. Norris, 292 S.C. 595, 601, 358 S.E.2d 150, 153 (S.C. Ct. App.1987).
As discussed already, there is no evidence that any defendant acted intentionally, for the purpose
of injuring Plaintiffs. Nor is there sufficient evidence in the record showing an agreement or
combination between any of the Defendants to withstand summary judgment.
Plaintiffs’
argument that there was an agreement to injure Plaintiffs boils down to an argument that there
must have been an agreement to injure Plaintiffs. Defendants, on the other hand, have come
forth with testimony from certain defendants that no conspiracy existed and that defendants Lam
and Mylott in fact did not even know each other. ECF No. 52-1, p. 24. Therefore, the court
finds that no reasonable juror could find a conspiracy on the record presented.
12
V. CONCLUSION
For the reasons given, the court grants Defendants’ respective motions for summary
judgment (ECF Nos. 49, 52), and dismisses, with prejudice, all claims asserted against all
Defendants.
IT IS SO ORDERED.
May 20, 2014
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
13
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