Tice v. Adger et al

Filing 70

OPINION AND ORDER adopting the 62 Report and Recommendation as supplemented in this order, granting the Defendants' 20 44 motions for summary judgment, and dismissing the matter with prejudice. Signed by Honorable Cameron McGowan Currie on 3/7/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Joseph Charles Tice,

C/A No. 3:15-4781-CMC

Plaintiff,
v.
OPINION AND ORDER
Jerry B. Adger, Head Probation Officer; Lisa
Baker, Probation Officer,
Defendants.

Joseph Charles Tice (“Plaintiff”), proceeding pro se and in forma pauperis, brought this
action against Jerry B. Adger, Head Probation Officer (“Adger”), and Lisa Baker, Probation
Officer (“Baker”), (collectively “Defendants”) claiming a violation of his constitutional rights
pursuant to 42 U.S.C. § 1983. ECF No. 1. This matter is before the court on motions for summary
judgment by Defendants. ECF Nos. 20, 44.
I.

Procedural Background

On or about November 27, 2015, Plaintiff filed this action alleging Defendants violated his
rights under the Fourth Amendment to the United States Constitution.1 ECF No. 1 at 1. In addition,
Plaintiff moved for leave to proceed in forma pauperis under 28 U.S.C. § 1915, ECF No. 2, which
was granted on December 10, 2015, by Magistrate Judge Paige J. Gossett, ECF No. 8. On April
12, 2016, Defendants filed a motion for summary judgment. ECF No. 20. Because Plaintiff is
proceeding pro se, the Magistrate Judge entered an order pursuant to Roseboro v. Garrison, 528

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Plaintiff is incarcerated and, thus, the court will give Plaintiff the benefit of the prisoner mailbox
rule. See Houston v. Lack, 487 U.S. 266 (1988).

F.2d 309 (4th Cir. 1975), advising him of the importance of the motion and of the need for him to
file an adequate response. ECF No. 22. On April 21, 2016, Plaintiff filed a response in opposition
to Defendants’ motion for summary judgment. ECF No. 29. On April 28, 2016, Plaintiff filed a
supplemental response.2 ECF No. 32. Plaintiff filed an additional supplemental response on June
21, 2016; however, this document was untimely and did not add any new arguments to be
considered. ECF No. 40. On August 19, 2016, the Magistrate Judge issued a Report and
Recommendation, recommending Defendants’ motion for summary judgment be granted to the
extent Plaintiff raised claims against Defendants in their official capacities, but denied as to the
remaining grounds raised by Defendants. ECF No. 42. It was further recommended that
Defendants be granted leave to refile a motion for summary judgment properly supported by
materials. Id. at 8.
Although the parties did not file objections to the Report and Recommendation,3
Defendants filed another motion for summary judgment on September 8, 2016, which did not
address all of the positions argued in their previous motion. ECF No. 44. Plaintiff filed a response
in opposition to the second motion on October 14, 2016. ECF No. 49.

2

Plaintiff filed a motion to appoint counsel, Defendants filed a response in opposition, and the
Magistrate Judge denied the motion. ECF Nos. 33, 34, 38. On December 16, 2016, Plaintiff filed
another motion to appoint counsel, which did not raise any new arguments as to why counsel
should be appointed, and the Magistrate Judge denied the motion for the reasons stated in her
previous order. ECF Nos. 60, 61. To the extent Plaintiff’s statement, “I am mentally ill and would
like an attorney” is an additional request for appointment of counsel, the court denies his request
for the reasons stated in the Magistrate Judge’s previous order. See ECF No. 38.

3

On December 2, 2016, Plaintiff filed a document claiming he was unaware that he was able to
object; however, this concern is moot because this court referred the case back to the Magistrate
Judge for evaluation of all motions simultaneously and will address Plaintiff’s objections in this
order. ECF No. 56.
2

Thus, in an effort to streamline this matter, the court adopted the Magistrate Judge’s
recommendation to grant leave for Defendants to refile a properly supported motion for summary
judgment; however, the court referred the case back to the Magistrate Judge to address both of
Defendants’ motions for summary judgment simultaneously. ECF No. 54. On December 9, 2016,
due to Defendants’ second motion for summary judgment, the Magistrate Judge entered an
additional order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff
of the importance of the motion and of the need to file an adequate response. ECF No. 57. On or
about December 19, 2016, Plaintiff timely filed a supplemental response in opposition with a
memorandum in support. ECF No. 59. On December 22, 2016, the Magistrate Judge issued a
Report and Recommendation (“Report”), recommending summary judgment on all of Plaintiff’s
claims.4 ECF No. 62. The Magistrate Judge advised the parties of the procedures and requirements
for filing objections to the Report and the serious consequences if they failed to do so. On or about
January 12, 2017, Plaintiff filed objections to the Report.5 ECF No. 65. Defendants did not respond
to Plaintiff’s objections. Thus, this matter is ripe for the court’s review.
II.

Standard

The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the

4

On December 20, 2016, Plaintiff timely filed an additional supplemental response when he
placed his response in the mail (ECF No. 64); however, this response was not received until
December 27, 2016, and, thus, was inadvertently not addressed in the Magistrate Judge’s Report
released on December 22, 2016. The court has considered the additional supplemental response
in its de novo review of the Report and addressed it within the analysis of Plaintiff’s objections.
5

Due to the uncertainty of the exact filing date and its proximity to the objection deadline, the
court will address Plaintiff’s objections.
3

court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
III.

Discussion

The Report set forth in detail the relevant facts and standards of law6 on this matter, and
this court incorporates those facts and standards here. Plaintiff makes five objections to the Report;
however, many of his objections contain the same arguments already raised in his responses in
opposition. In addition, four of these objections are based in part on Plaintiff’s misunderstanding
of the South Carolina Court of Appeals’ decision regarding a violation of his constitutional right
at the probation revocation hearing.7

6

Inasmuch as the Report cites to Cruz v. Beto, 405 U.S. 319 (1972), to support liberal construction
of a pro se litigant’s complaint, it is replaced with Erickson v. Pardus, 551 U.S. 89 (2007). The
former case relies solely upon the “no set of facts” standard provided in Conley v. Gibson, 355
U.S. 41 (1957), which was overruled in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560–63 (2007).
See Francis v. Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir. 2009). However, under the proper
standard, the result remains unchanged. See Erickson, 551 U.S. at 93–94 (reiterating the liberal
construction of a pro se complaint after the decision in Twombly).

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Plaintiff states in his objections “nothing in that [circuit] court counts, because it was overturned.”
ECF No. 65 at 3.
4

First, Plaintiff objects to the Report’s qualified immunity discussion8 because he argues
Baker knew he was unable to pay when she issued his arrest warrant, and, thus, Baker was “abusing
her power” when she issued an arrest warrant for Plaintiff’s failure to pay. ECF No. 65 at 1–2.
Second, Plaintiff objects to the Report’s statement that Defendants provided copies of the arrest
warrant and affidavit which indicate he failed to pay fees and stay enrolled in counseling as
required by the terms of his probation because, he contends, “[i]f probation conditions violate
Constitution Law then it should not be used.” Id. at 3. Third, Plaintiff objects to the Report’s
reference to the transcript of his probation revocation hearing in which Plaintiff admitted he
violated the terms of his probation, because he was terminated from counseling due to his inability
to pay and it was not a willful violation.9

Id.

Fourth, Plaintiff objects to the Report’s

recommendation that summary judgment be granted because Baker knew Plaintiff was unable to
pay, did not attempt to reduce his fine payments as his previous probation agent did, forced him to
switch to a doctor he could not afford, and failed to explore other alternatives. Id. at 4–5. Finally,
in one sentence, Plaintiff objects to the Report’s recommendation that Defendants are entitled to
immunity under the Eleventh Amendment. Id. at 4.

8

Although the Report notes Plaintiff did not address Defendants’ qualified immunity argument,
Plaintiff filed a timely supplemental response that arrived at the court following the issuance of
the Report. ECF No. 64. The court recognizes Plaintiff did address qualified immunity.
9

It is unclear whether Plaintiff admitted he owed the fees stated in the arrest warrant because
Plaintiff appears to argue his previous probation officer in Richland County approached the judge
and obtained an order exempting his fines due to his inability to pay. See ECF Nos. 44-1 at 4, 49
at 3, 64 at 3, 65 at 2. Whether this order existed, applied to the fees at issue, or was in effect at the
time of the warrant’s issuance by Plaintiff’s new probation officer in Aiken County is uncertain
based upon the information provided to this court. However, it is clear Plaintiff admitted he was
terminated from counseling due to his inability to pay his new doctor, and, thus, violated his
probation conditions. See, e.g., ECF No. 44-1 at 4.
5

As evidenced above, Plaintiff’s objections generally consist of arguments made in his
previously filed briefs and can be boiled down to two basic objections: (1) Plaintiff did not willfully
violate his probation, so he should not have been arrested, and (2) Defendants are not entitled to
immunity under the Eleventh Amendment. Neither of these objections prevail.
a. Willful Violation of Probation
It was the duty of the court, not Plaintiff’s probation agent, to determine whether or not
Plaintiff willfully violated the terms of his probation. In fact, as the transcript from the probation
revocation hearing makes quite clear, the probation agent present at the hearing actually asserted
Plaintiff had not willfully violated his probation. ECF No. 44-1 at 6 (stating “we definitely would
like to assert that it’s not a willful choice not to pay, it’s that he can’t afford it . . . Again, I’d just
like to emphasize that it wasn’t a willful choice not to pay”). Moreover, the agent objected to the
revocation of probation and cited precedent from the United States Supreme Court requiring a
finding of a willful violation before the judge revoked Plaintiff’s probation and sentenced him to
jail. Id. at 7–8.
According to the South Carolina Code of Laws, at any time during the probationary period,
a probation agent may issue or effect the issuance of a warrant and “cause the defendant to be
arrested for violating any of the conditions of probation or suspension of sentence. . . . [T]he
arresting officer or agent must have a written warrant from the probation agent setting forth that
the probationer has, in his judgment, violated the conditions of probation, and such statement shall
be warrant for the detention . . . .” S.C. Code Ann. § 24-21-450. The arrest warrant provided by
Defendants evidences compliance with this statute. ECF No. 44-2. “Upon such arrest the court, or
the court within the venue of which the violation occurs, shall cause the defendant to be brought
before it and may revoke the probation or suspension of sentence and shall proceed to deal with
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the case as if there had been no probation or suspension of sentence . . . .” S.C. Code Ann. § 2421-460. In Bearden v. Georgia, 461 U.S. 660 (1983), the United States Supreme Court stated:
We hold, therefore, that in revocation proceedings for failure to pay a fine or
restitution, a sentencing court must inquire into the reasons for the failure to pay.
If the probationer willfully refused to pay or failed to make sufficient bona fide
efforts legally to acquire the resources to pay, the court may revoke probation and
sentence the defendant to imprisonment within the authorized range of its
sentencing authority. If the probationer could not pay despite sufficient bona fide
efforts to acquire the resources to do so, the court must consider alternate measures
of punishment other than imprisonment. Only if alternate measures are not adequate
to meet the State’s interests in punishment and deterrence may the court imprison
a probationer who has made sufficient bona fide efforts to pay. To do otherwise
would deprive the probationer of his conditional freedom simply because, through
no fault of his own, he cannot pay the fine. Such a deprivation would be contrary
to the fundamental fairness required by the Fourteenth Amendment.
Id. at 672–73. (emphasis added). It is at Plaintiff’s probation violation hearing where the alleged
constitutional violation occurred in Plaintiff’s case – the South Carolina Court of Appeals found
that the circuit court judge failed to make the required findings at Plaintiff’s probation revocation
hearing. State v. Tice, No. 2014-UP-370, 2014 WL 5698334, at *1 (S.C. Ct. App. Nov. 5, 2014).
Specifically, the Court of Appeals reversed and remanded the case because,
when revoking probation based solely on the basis of a failure to pay money, the
circuit court must make the following findings on the record: (1) the State presented
sufficient evidence indicating the probationer violated the terms of his probation;
(2) the probationer willfully failed to pay in that he either had the funds to make
payment and chose not to or lacked the funds to make payment and did not make a
bona fide effort to acquire the funds; and (3) alternate measures are not adequate to
meet the State’s interests in punishment and deterrence.
Id. (citing State v. Coker, 723 S.E.2d 619, 620 (S.C. Ct. App. 2012)) (internal quotations omitted).
Thus, Baker was not required to make a finding that Plaintiff was in willful violation of
his probation conditions prior to issuing the arrest warrant; Baker was only required to reasonably

7

suspect Plaintiff was in violation.10 See Jones v. Chandrasuwan, 820 F.3d 685, 693 (4th Cir.
2016) (“[W]e hold that probation officers must have reasonable suspicion before seeking the
arrest of a probationer for allegedly violating conditions of his probation.”). Therefore, it is
irrelevant to the proper issuance of Plaintiff’s arrest warrant whether his violation was willful or
not – the court was to make this determination at the hearing. Thus, Defendants are entitled to
qualified immunity.11 Further, Plaintiff’s probation conditions were not determined to violate the
Constitution as he contends. Therefore, Plaintiff’s first four objections are overruled.
b. Eleventh Amendment Immunity
Plaintiff’s final objection consists of one sentence: “I object to Page 8 Eleventh
Amendment Immunity.” Plaintiff provides no reasoning for this objection. This court has reviewed
the law and finds the Magistrate Judge has correctly stated that Defendants are entitled to immunity
under the Eleventh Amendment in their official capacities because Plaintiff is seeking monetary
damages against them and they are agents for an arm of the State of South Carolina. See Gamache
v. Cavanaugh, 82 F.3d 410 (4th Cir. 1996) (holding agents for the South Carolina Department of

10

As the transcript from the probation revocation hearing reveals, Plaintiff admitted he was in
violation of his probation conditions. See ECF No. 44-1.
11

The Report’s analysis is correct and applicable to Plaintiff’s false imprisonment and false arrest
claims. Furthermore, the second prong of qualified immunity requires that a violated right must be
clearly established. See Carroll v. Carman, 135 S. Ct. 348, 350 (2014). The court finds that, even
if Defendants had violated Plaintiff’s right by seeking his arrest for alleged probation violations
without reasonable suspicion, this right was not clearly established at the time of Plaintiff’s arrest
in April 2013. See Jones, 820 F.3d at 696 (announcing the reasonable suspicion standard for
probation violations and concluding “the standard required by the Fourth Amendment to arrest a
probationer was not clearly established at the time [Defendants] sought [Plaintiff’s] arrest for
allegedly violating the terms of his probation” as “[n]either the Supreme Court nor [the Fourth
Circuit] had announced the level of suspicion required under the Fourth Amendment to arrest a
probationer for a suspected probation violation”).
8

Probation, Parole, and Pardon Services were entitled to summary judgment on all claims naming
them in their official capacities) (unpublished); see also Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989) (holding neither a state nor its agents in their official capacities are “persons”
under section 1983). Thus, Plaintiff’s fifth objection is overruled.
IV.

CONCLUSION

Having conducted a de novo review of the Report and underlying motions and related
memoranda, and having fully considered Plaintiff’s objections, the court adopts the conclusions of
the Report. The Report and Recommendation, therefore, is adopted and incorporated by reference,
as supplemented in this order. Defendants’ motions for summary judgment are granted. ECF Nos.
20, 44. This matter is dismissed with prejudice.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 7, 2017

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