Legg v. Rhodes et al

Filing 102

ORDER ADOPTING 95 REPORT AND RECOMMENDATION, granting Defendant's 88 Motion for Summary Judgment. Signed by Honorable Richard M Gergel on 10/1/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

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Ronald L. Legg,
Plaintiff,

v.
Det. Neil Frebowitz,
Defendant.

No.4:12-cv-00811

ORDER

This matter is before the Court on the Report & Recommendation (R & R) of the
Magistrate Judge, recommending that the Court grant Defendant's Motion for Summary
Judgment. (Dkt. No. 95). Plaintiff filed timely objections. (Dkt. No. 100). For the reasons
stated below, the Court adopts the R & R and grants Defendant's motion.

Ie Lela. 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
Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(I). This Court is charged with making a de novo determination of those portions
of the R & R or specified proposed findings or recommendations to which objection is made.

Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C.

§ 636(b)(I)); accord Fed. R. Civ. P. 72(b).

II. Discussion
Liberally construed, Plaintiff s complaint sets forth a claim of false arrest and illegal
search against Defendant Frebowitz. Plaintiff claims that Defendant unlawfully searched his
residence on June 17, 2011, and claims that this unlawful search resulted in his arrest and
subsequent conviction on March 13,2014. (Dkt. No.1 at 3; Dkt. No. 92).
The Court agrees with the Magistrate Judge that Plaintiffs claims are barred by Heck v.

Humphrey, 512 U.S. 477 (1994). In Heckv. Humphrey, the Supreme Court held that a state
prisoner cannot bring a Section 1983 suit for damages where a judgment in favor of the prisoner
would necessarily imply the invalidity of his conviction or sentence. Id. at 486-87. Ajudgment
for Plaintiff on his claim of false arrest would necessarily invalidate his subsequent conviction.
Therefore, this claim is barred by Heck. See id.
Any Fourth Amendment claim based on the search is also likely barred by Heck.
However, even if the claim is not barred by Heck, Frebowitz is entitled to qualified immunity.
"[A] Fourth Amendment claim can necessarily imply the invalidity of a conviction, and ... if it
does it must, under Heck, be dismissed." Wallace v. Kato, 549 U.S. 384,395 n.5 (2007). The
Court must determine whether a judgment in favor of Plaintiff would require that the evidence
derived from the search be suppressed in a criminal case and if suppression would necessarily
invalidate the criminal conviction. Ballenger v. Owens, 352 F.3d 842, 846 (4th Cir. 2003).
Here, to the extent that Plaintiff has alleged any harm from the allegedly illegal search
other than the resulting conviction (Le. lost or damaged property), the Court has already
dismissed the claims. (Dkt. No. 25 at 3-4). Apart from the lost or damaged property claims,
Plaintiff only discusses the search "in support of his argument that ... his resulting conviction

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[was) improper." Farabee v. Feix, 119 F. App'x 455,457 (4th Cir. 2005). Thus, success on his
claim requires a finding that his conviction was improper, and Heck bars the claim. See id. at
457-58.
To the extent that Plaintiff has raised a Fourth Amendment claim not barred by Heck,
Frebowitz is entitled to qualified immunity. "[W)here a law enforcement officer acts pursuant to
a warrant, the critical question is whether the officer could have reasonably thought there was
probable cause to seek the warrant." Wadkins v. Arnold, 214 F.3d 535,539 (4th Cir. 2000)
(emphasis in original). "Only where the warrant application is so lacking in indicia of probable
cause as to render official belief in its existence unreasonable will the shield of immunity be
lost." ld. (quoting Malley v. Briggs, 475 U.S. 335, 344-45 (1986». Thus, a law enforcement
officer "may be entitled to qualified immunity even if the warrants at issue are later detennined
to have been lacking in probable cause." ld.
Here, the search warrant was based on interviews with a ten year-old victim, her mother
and another witness. (Dkt. No. 88-2 at 1). The victim confided in her mother that Plaintiff
sexually assaulted her, provided specific details of the assault, stated that the sexual abuse had
been on-going, that the assualt occurred at Plaintiff s residence, and that Plaitniff maintained a
diary or journal where he compelled the victim to write. (Dkt. No. 88-2 at 4). Under these
circumstances, an officer could have reasonably thought there was probable cause to seek the
warrant, and no reasonable jury could find otherwise. Therefore, Frebowitz is entitled to
qualified immunity. Wadkins, 214 F.3d at 539.

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III. Conclusion

For the reasons stated above, the Court ADOPTS the R & R and GRANTS Defendant's
Motion for Summary Judgment (Dkt. No. 95).
AND IT IS SO ORDERED.

United States District Judge

October -1-,2014
Charleston, South Carolina

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