Adams v. Burbage et al

Filing 45

ORDER adopting the 38 Report and Recommendation and granting Defendants' 26 Motion for Summary Judgment. Signed by Honorable Mary Geiger Lewis on 2/11/2019. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
ALTON ADAMS,
Plaintiff,
vs.
DEPUTY J.K. BURBAGE; JAY KOON,
Lexington County Sheriff,
Defendants.

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Civil Action No. 3:17-2048-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This action arises under 42 U.S.C. § 1983. All parties are represented by counsel. The
matter is before the Court for review of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting Defendants J.K. Burbage and Jay Koon’s (Defendants) motion
for summary judgment be granted and the case dismissed. The Report was made in accordance
with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (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 with instructions. 28 U.S.C. § 636(b)(1).

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The Magistrate Judge filed the Report on December 4, 2018. ECF No. 38. Plaintiff Alton
Adams’s (Adams) filed his objections on December 17, 2018. ECF No. 40. Defendants replied
to Adams’s objections on December 19, 2018. ECF No. 41.

The Court has reviewed the

objections but hold them to be without merit. It will therefore enter judgment accordingly.
As a preliminary matter, Adams asserted claims for defamation, deprivation of property
without due process in violation of the Fourteenth Amendment, and punishment of speech in
violation of the First Amendment. ECF No. 1 at 3-5. There are no facts in Adams’s complaint
supporting such claims and the Magistrate Judge noted in the Report Adams appears to have
intended to assert these claims against different defendants in a related case, Adams v. Pritchard
et al, 3:17-cv-01108-MGL. Adams was given an opportunity to amend his complaint and failed
to do so. Because the Defendants have not moved for summary judgment as to these claims, the
Court will adopt the Magistrate Judge’s recommendation and summarily dismiss these claims for
failure to state a claim upon which relief can be granted. Therefore, the remaining claims against
the Defendants in the case at bar are for violations of the Fourth Amendment for false arrest and
malicious prosecution pursuant to 42 U.S.C. § 1983, and for abuse of process and deprivation of
due process under state law.
The Magistrate Judge recommended the Court grant Defendants’ motion for summary
judgment on Adams’s federal claims because the undisputed evidence in the record shows
Defendant Burbage had probable cause to arrest and prosecute Adams for forgery. Adams objects
on the ground that, although Defendant Burbage may have had probable cause to arrest Adams, he
lacked “probable cause to continue the prosecution upon discovering Plaintiff’s defense to the
charge was verified and Gerald L. McKinney had actually stolen and forged the checks in
question.” ECF No. 40 at 2.

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In support of his contention Defendants lacked probable cause to continue the prosecution,
Adams relies on his own affidavit. Adams contends Defendants “continued his prosecution after
they received evidence which negated probable cause and in fact showed him without any
knowledge of a crime, much less any criminal intent to commit a crime.” ECF No. 40 at 3.
“‘Probable cause,’ for Fourth Amendment purposes, means ‘facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,
in believing, in the circumstances shown, that the suspect has committed, is committing, or is about
to commit an offense.’” Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992). Defendant
Burbage’s investigation showed the check’s owner reported a check stolen from him, and someone
presented the check in an attempt to cash it at a local truck stop with Adams’s driver’s license.
ECF No. 38 at 9. The investigation also showed, on video, Adams attempted to cash another check
with the owner’s forged signature and made payable to cash at the check owner’s bank. Id. As
the Magistrate Judge correctly set forth in the Report, the undisputed evidence in the record shows
Defendant Burbage had probable cause to arrest and prosecute Adams for forgery.
Adams argues the facts uncovered in the investigation showed he had no knowledge the
checks were forged, and he was duped by McKinney, who actually forged the checks. Adams’s
objection rests on the flawed assumption that because there is an absence of the necessary mens
rea required to prove he committed the crime, then both the initial arrest and any further
prosecution is a constitutional violation. The case law relied upon by Adams in his objections is
inapposite. Adams cites to cases addressing whether the mens rea has been proven as an element
required to sustain a conviction. These cases fail to address the requisite proof of mens rea
sufficient to establish probable cause. Adams’s state of mind has no bearing on whether there was
probable cause for his arrest or for his prosecution. See Brigham City, Utah v. Smart, 547 U.S.

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398 (2006) (noting an action is reasonable, under the Fourth Amendment, regardless of the
individual’s state of mind, so long as the circumstances, viewed objectively, justify the action).
There is simply no evidence in the record to suggest the circumstances, viewed objectively, did
not justify Defendants’ actions. Adams fails to point to any admissible evidence showing
Defendants’ lacked probable cause at any point in the investigation.
In opposing a motion for summary judgment, a party must, inter alia, point to evidence in
the record, including affidavits. Fed. R. Civ. P. 56(c)(1)(A). However, a self-serving affidavit is
insufficient to withstand a motion for summary judgment. See Nat’l Enters., Inc. v. Barnes, 201
F.3d 331, 335 (4th Cir. 2000).

Adams’s self-serving affidavit is insufficient to establish

Defendants lacked probable cause to continue his prosecution. Because Adams has propounded
no admissible evidence to show Defendants’ were aware of his defense he was duped by
McKinney (and thus lacked the mens rea to commit forgery), the Court will overrule Adams’s
objection arguing Defendants lacked probable cause to continue Adams’s prosecution.
As to Adams’s state law claims, the Magistrate Judge recommended Defendants’ motion
for summary judgment be granted as to both the abuse of process and deprivation of due process
claims because Adams’s claims are barred by the Eleventh Amendment. Adams’s objections to
the Report’s recommendation center on his allegations Defendants’ acted with actual malice and
were therefore acting in their individual capacities and outside of the scope of their qualified
immunity. ECF No. 40 at 6-7. However, as the Magistrate Judge astutely states in the Report,
Adams’s complaint makes no express assertion the state law claims are asserted against
Defendants in their individual capacity outside of the South Carolina Tort Claims Act (the Act),
S.C. Code Ann. §§ 15-78-10, et seq. Further, Adam’s complaint fails to allege Defendants acted
with malice. Adams was given an opportunity to amend his complaint and neglected to do so. To

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allow him to propound these new allegations would be the equivalent of allowing Adams to amend
his complaint in response to a motion for summary judgment. Therefore, the Court agrees with
the Magistrate Judge’s recommendation Defendants are immune from the state law claims and will
overrule Adams’s objections accordingly.
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment
of the Court Defendants’ motion for summary judgment is GRANTED and this case is
DISMISSED.
IT IS SO ORDERED.
Signed this 11th day of February 2019 in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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