Assa'ad-Faltas v. Richland County Sheriff's Department et al

Filing 93

ORDER adopting in part and rejecting in part the 85 Report and Recommendation, and granting in part and denying in part Defendants' 73 Motion for Summary Judgment. Signed by Honorable Mary Geiger Lewis on 3/19/2020. Motions referred to Shiva V. Hodges. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
MARIE ASSA’AD-FALTAS,
Plaintiff,

§
§
§
vs.
§
§
RICHLAND COUNTY SHERIFF’S
§
DEPARTMENT, as employer of Deputy
§
Pierce/Pearce, LEON LOTT, officially as
§
Sheriff of Richland County, South Carolina for §
injunctive relief, FORMER RCSD DEPUTY
§
PIERCE/PEARCE, individually for damages, §
and all their subordinates and/or agents who §
did and/or intended to injure Plaintiff,
§
Defendants.
§
§

Civil Action No. 3:18-00578-MGL

ORDER ADOPTING IN PART AND REJECTING IN PART
THE REPORT AND RECOMMENDATION,
AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION
Plaintiff Marie Assa’ad-Faltas (Assa’ad), proceeding pro se, filed this action seeking

damages and an injunction against Defendants Richland County Sheriff’s Department (RCSD),
Leon Lott (Lott), and Former RCSD Deputy Pierce/Pearce’s (Pearce) (collectively, Defendants),
alleging a number of violations under 42 U.S.C. § 1983 and several state law claims. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting Defendants’ motion for summary judgment be granted. 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 the 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 a 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). The Court need not conduct a de
novo review, however, “when a party makes general and conclusory objections that do not direct
the court to a specific error in the [Magistrate Judge’s] proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).

II.

BACKGROUND
The present action arises out of an interaction between Assa’ad and Pearce in February

2016. Pearce was at Assa’ad’s apartment complex, attempting to serve an eviction notice. Officer
Sean Kilcoyne (Kilcoyne) was patrolling the complex on the night in question and was with Pearce
during the interaction. Assa’ad drove into the cul-de-sac for the complex and continued driving
after Pearce purportedly called for her to stop. Assa’ad counters she did not hear Pearce give the
instruction to stop her car and was continuing to drive in order to check her mail. Pearce also
alleges that Assa’ad drove her car directly at him in an attempt to strike him, an allegation Assa’ad
denies. Pearce got back in his car, followed Assa’ad, and activated the blue lights on his car.
Assa’ad, in response, pulled over her car.

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Pearce asserts he stopped Assa’ad’s car for a traffic violation, arguing she attempted to run
him over with her car and the vehicle was in violation of a county noise ordinance. Assa’ad
disputes both allegations. During the interaction, Pearce failed to give Assa’ad a citation for either
purported violation, merely serving her with the eviction notice.

III.

ASSA’AD’S OBJECTIONS TO THE REPORT
The Magistrate Judge filed the Report on July 19, 2019. Assa’ad filed her Objections to

the Report (Objections) on August 2, 2019.
First, Assa’ad objects to an alleged misapplication of the summary judgment standard by
the Magistrate Judge. She asserts the Magistrate Judge improperly credited an affidavit presented
by Defendants over one provided by Assa’ad. As highlighted by Assa’ad, the Magistrate Judge
credited Kilcoyne’s statements about the car noise over “Plaintiff’s own[] self-serving statement
regarding the condition of her car.” Report at 11. The purported noise from Assa’ad’s car was the
reason Pearce stopped her and thus is the basis for one of her § 1983 claims, alleging Pearce
violated her Fourth Amendment rights by executing a traffic stop without reasonable suspicion.
Summary judgment analysis entails a three-step process. First, the Court determines
whether a genuine issue actually exists so as to necessitate a trial. Fed. R. Civ. P. 56(e). An issue
is genuine “if the evidence is such that a reasonable [trier of fact] could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Second, the Court
must ascertain whether that genuine issue pertains to material facts. Fed. R. Civ. P. 56(e). The
substantive law of the case identifies the material facts, that is, those facts potentially affecting the
outcome of the suit. Anderson, 477 U.S. at 248. Third, assuming no genuine issue exists as to the

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material facts, the Court will decide whether the moving party shall prevail solely as a matter of
law. Fed. R. Civ. P. 56(e).
At the summary judgment stage, the court “cannot weigh the evidence or make credibility
determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).
Summary judgment is impermissible where “affidavits present conflicting version of the facts
which require credibility determinations.” Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016).
Assa’ad submitted, with her opposition to the motion for summary judgment, a letter
declaring, under penalty of perjury, her car “was NOT noisy or damaged” at the time of the
incident. Plaintiff’s Affidavit Against Defendants’ Rule 56 Motion ¶ 2. Because the declaration
in the letter was submitted under penalty of perjury, this letter is “conferred . . . the status of an
affidavit.” United States v. Arlington Cty., Va., 702 F.2d 485, 490 (4th Cir. 1983).
The facts presented in Assa’ad’s affidavit directly compete with the facts found in
Kilcoyne’s affidavit, creating a genuine issue of fact. Contrary to Assa’ad, Kilcoyne submitted to
the Court he “could hear that [Assa’ad’s] older model vehicle was excessively loud as one could
plainly hear the defects with Plaintiff’s vehicle from several hundred feet in distance.” Affidavit
of Sean J. Kilcoyne ¶ 9. Because this fact is central to a determination of reasonable suspicion
supporting Pearce stopping Assa’ad, a requirement under the Fourth Amendment, it is material to
the case. Summary judgment is thus improper, and the factual dispute to be resolved by a jury.
Accordingly, the Court will sustain Assa’ad’s objection and deny the motion for summary
judgment as to Assa’ad’s § 1983 claim asserting a Fourth Amendment violation by Pearce.
Second, Assa’ad objects to alleged judicial bias on the part of both District Court Judge
Wooten and Magistrate Judge Hodges. Because District Court Judge Wooten has recused himself
from this case, any allegations of bias against him are now moot. Assa’ad’s allegations regarding

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Magistrate Judge Hodges stem from the Report calling Assa’ad “inappropriate, unprofessional and
harassing.” Report at 22 n.3.
“[C]omments . . . demonstrate[ing] expressions of impatience, dissatisfaction, annoyance,
and even anger . . . do not rise to the level of impermissible judicial bias.” Rowsey v. Lee, 327
F.3d 335, 341 (4th Cir. 2003). Magistrate Judge Hodges’s statements, at best, demonstrate
dissatisfaction. Assa’ad’s allegations are insufficient to demonstrate impermissible judicial bias
and her objection will be thus overruled as to Magistrate Judge Hodges.
Third, Assa’ad objects to summary judgment on her claim for injunctive relief against
future enforcement of the noise ordinance against her, stating it would give the RCSD unfettered
discretion to continue to arrest her. She argues providing RCSD with unfettered discretion to
enforce the noise ordinance would make the ordinance unconstitutionally vague.
Under Ex Parte Young, 209 U.S. 123 (1908), a federal court may “issue prospective,
injunctive relief against a state officer to prevent ongoing violations of federal law.” McBurney v.
Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010). “The requirement that the violation of federal law
be ongoing is satisfied when a state officer’s enforcement of an allegedly unconstitutional state
law is threatened, even if the threat is not yet imminent.” Waste Mgmt. Holdings, Inc. v. Gilmore¸
252 F.3d 316, 330 (4th Cir. 2001).
An officer’s “general authority to enforce the laws of the state,” however, is insufficient to
establish a threat of enforcement against an individual. McBurney, 616 F.3d at 399. Therefore,
Ex Parte Young is focused on officials “who threaten and are about to commence proceedings”
contrary to the Constitution. Id.
Assa’ad fails to provide any evidence in support of any concrete contemplated future
action—by anyone within RCSD, including Lott and Pearce—against her under the county noise

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ordinance. Her speculation “nothing protects [her] from being harassed by repeated arrests,”
Objections at 3, under the county ordinance closely mirrors allegations based on a “general
authority to enforce the laws of the state,” McBurney, 616 F.3d at 399. Speculation about
hypothetical future prosecutions is insufficient to allow for injunctive relief. Therefore, the Court
will overrule Assa’ad’s third objection.
Fourth, Assa’ad objects to the Magistrate Judge suggesting Pearce is entitled to immunity
from suit for purported perjury at a pretrial hearing on a motion to dismiss for lack of personal
jurisdiction. She compares such a hearing to a probable cause hearing in the criminal context, and
notes the Supreme Court in Briscoe v. Lahue reserved judgment on immunity during pretrial
hearings. 460 U.S. 325, 328 n.5 (1983).
Although Lahue reserved judgment, § 1983 immunity has been extended to perjury in
pretrial hearings. See Brice v. Nkaru, 220 F.3d 233, 239 n.6 (4th Cir. 2000) (“In any event, there
could be no liability based on [a witness’s] testimony at the preliminary hearing, because witness
absolute immunity applies to testimony given in a judicial proceeding.”). According, the Court
will overrule Assa’ad’s fourth objection.
Finally, Assa’ad vaguely objects to an alleged falsification by the Magistrate Judge in the
Report of “the history of discovery” for the case. The Court construes this as an objection under
Federal Rule of Civil Procedure 72(a). Id. (setting forth the process of objecting to the Magistrate
Judge’s ruling on non-dispositive matters). The District Court reviews objections to Magistrate
Judge’s rulings on nondispositive matters for clear error. Fed. R. Civ. P. 72(a). Because Assa’ad
received the requested discovery and any recitation of the history of discovery in the case did not
affect the substantive analysis in the Report, there is no clear error and this objection is overruled.

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IV.

WHETHER SUMMARY JUDGMENT IS APPROPRIATE AS TO THE STATE
LAW CLAIMS
Inasmuch as the Magistrate Judge suggested the Court grant summary judgment on all

Assa’ad’s federal claims, she also recommended the Court decline to exercise supplemental
jurisdiction over her remaining state law claims. But, because a federal claim remains, the Court
now retains supplemental jurisdiction over the state law claims. Because the Report lacked a
substantive analysis of the state law claims, the Court will deny without prejudice the motion for
summary judgment as to the remaining state law claims. The parties are encouraged to refile any
dispositive motions making arguments specific to the state law claims. These motions will be
referred to the Magistrate Judge.
*****
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court overrules Assa’ad’s objections, except as noted above, adopts the Report
to the extent it is consistent with this opinion, and incorporates it herein. Therefore, it is the
judgment of the Court Defendants’ motion for summary judgment is DENIED with respect to the
§ 1983 claims for a violation of Assa’ad’s Fourth Amendment rights during the traffic stop,
DENIED WITHOUT PREJUDICE as to Assa’ad’s state law claims, and GRANTED as to the
remaining § 1983 claims.

IT IS SO ORDERED.
Signed this 19th day of March 2020 in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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