Boschele et al v. Rainwater et al
Filing
86
ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report and Recommendation (ECF No. 72 ) and incorporates it herein by specific reference to the extent consistent. The Court further grants Defendants' Moti on to Strike (ECF No. 82 ) Plaintiff's letter filed on November 19, 2015. However, the Court does not find the filing of this letter to serve as a basis to dismiss this action. It is, therefore, ORDERED that Defendants' Motion for Summary Judgment (ECF No. 42 ) is GRANTED IN PART and DENIED IN PART. Husband's § 1983 claims for Fourth Amendment seizure and arrest violations and First Amendment violation, and his state law claims for false arrest and false imprisonment are therefore dismissed. However, all remaining causes of action may proceed. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 2/10/2016. (mcot, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
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Civil Action No.: 4:13-1419-BHH
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Plaintiffs,
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ORDER AND OPINION
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vs.
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David G. Rainwater, Chesterfield
County Sheriff’s Office, Sam Parker in )
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his official capacity as the Deputy of
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Chesterfield County, Chesterfield
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County, Kip Kiser in his official
capacity as the Sheriff of Chesterfield )
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County and Robert Lee in his official
capacity as the Sheriff of Chesterfield )
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County
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Defendants. )
______________________________ )
Anthony Boschele and Nancy
Boschele,
On April 10, 2013, Plaintiffs Anthony Boschele (“Husband”) and Nancy Boschele
(“Wife”) (collectively, “Plaintiffs”) filed this 42 U.S.C. § 1983 action alleging that
Defendant David G. Rainwater violated their Fourth and Fourteenth Amendment rights
during the course of their arrest and subsequent imprisonment.1 Plaintiffs also bring state
law claims for battery, false arrest, and false imprisonment against the remaining
Defendants.2 In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02
D.S.C., this matter was referred to United States Magistrate Kaymani D. West, for
consideration of pretrial matters. The Magistrate Judge prepared a thorough Report and
1
Plaintiffs filed an Amended Complaint on April 22, 2013.
By joint consent, the parties have agreed to dismiss all Defendants except David G. Rainwater, in his
individual capacity, and the Sheriff Chesterfield County as parties to this action.
2
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Recommendation which recommends that Defendants’ motion for summary judgment be
granted in part and denied in part. (ECF No. 72.) Specifically, she recommends
dismissing Husband’s § 1983 claims for Fourth Amendment violations and his state law
claims for false arrest and false imprisonment, and allowing all other claims to proceed
past summary judgment. Defendants filed timely objections to the Report and
Recommendation (ECF No. 74) and Plaintiffs filed a reply (ECF No. 76). For the reasons
set forth herein, the Court adopts the Report and Recommendation.
BACKGROUND AND PROCEDURAL HISTORY
The Report and Recommendation sets forth in detail the relevant facts and
standards of law, and the Court incorporates them and summarizes below only in
relevant part. Plaintiffs filed this matter on April 10, 2013, alleging violations of their
constitutional rights and state law claims. (ECF No. 1-1.) Specifically, Plaintiffs bring suit
against Defendant Rainwater individually under § 1983 for improper seizure, excessive
force, and false arrest under the Fourth and Fourteenth Amendments to the Constitution.
(Id. at 8–11.) Additionally, Plaintiffs bring a § 1983 claim under the First Amendment for
false arrest because they claim that the exercise of their First Amendment rights was a
motivating factor in their arrest. (Id. at 13–14.) Plaintiffs also bring suit against Defendant
Sheriff of Chesterfield County for common law false imprisonment, battery, and false
arrest under the South Carolina Tort Claims Act. (Id. at 9–10, 12–13.)
On March 6, 2015, Defendants moved for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure. (ECF No. 42.) After consideration of the
response filed in opposition to the motion for summary judgment (ECF No. 55) and
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Defendants’ reply (ECF No. 59), the Magistrate Judge issued a Report and
Recommendation recommending that the motion for summary judgment be granted in
part and denied in part. (ECF No. 72.) The Court has reviewed the objections to the
Report, but finds them to be without merit. Therefore, it will enter judgment accordingly.3
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight. The responsibility for making a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of any portions of the Report
and Recommendation to which a specific objection is made. The Court may accept,
reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge
or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. §
636(b)(1).
DISCUSSION
Defendants have objected to the Magistrate Judge’s recommendation that: (1)
genuine issues of material fact preclude granting summary judgment on Wife’s Fourth
Amendment claims; (2) genuine issues of material fact preclude granting summary
judgment on Husband’s excessive force claim during and after his exit from the porch;
(3) genuine issues of material fact preclude granting summary judgment on Wife’s First
Amendment claim; (4) Defendant Rainwater is not entitled to a qualified immunity
defense on Plaintiffs’ excessive force claims and Wife’s First and Fourth Amendment
3
As always, the Court says only what is necessary to address Defendants’ objections against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific
reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.
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claims; (5) genuine issues of material fact preclude granting summary judgment on
Wife’s state law claims for false arrest and false imprisonment and Plaintiffs’ state law
claims for battery; and (6) Defendant Sheriff of Chesterfield County is not immune from
suit for the surviving state law claims under the South Carolina Tort Claims Act.
Respectfully, Defendants’ objections are largely restatements of arguments made
to, and rejected by, the Magistrate Judge. See Hendrix v. Colvin, 2013 WL 2407126, at
*4 (D.S.C. June 3, 2013); see also Jackson v. Astrue, 2011 WL 1883026 (W.D.N.C. May
17, 2011); Aldrich v. Bock, 327 F. Supp.2d 743, 747 (E.D. Mich. 2004). “Examining anew
arguments already assessed in the report of a magistrate judge would waste judicial
resources; parties must explain why the magistrate judge's report is erroneous, rather
than simply rehashing their prior filings and stating the report’s assessment was wrong.”
Hendrix, 2013 WL 2407126, at *4. Absent proper objections, the district court must “‘only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 Advisory Committee’s Note).
The Court has considered Defendants’ various objections de novo and finds them
insufficient to reject the recommendations of the Magistrate Judge. In her exceptionally
thorough thirty-nine page Report, the Magistrate Judge engaged in a thoughtful and
comprehensive analysis of Plaintiffs’ claims. She first found that there were no genuine
issues of material fact as to Husband’s Fourth Amendment seizure and arrest violation
allegations, and Defendants were therefore entitled to summary judgment on these
claims. (ECF No. 72 at 5–11.) However, in reference to Wife’s Fourth Amendment
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seizure and arrest violation allegations, the Magistrate Judge found genuine issues of
material fact as to “whether some of Defendant Rainwater’s actions were reasonable
under the circumstances”; specifically, whether he had probable cause to arrest Wife for
hindering a law enforcement officer. (Id. at 12–17.) The Magistrate Judge granted
Defendants’ motion seeking “summary judgment for Wife’s initial seizure while
Defendant Rainwater secured his safety and attempted to maintain the status quo,” and
denied the portion seeking “summary judgment because probable cause existed to
arrest Wife for hindering an officer.” (Id. at 19.)
Here, Defendants object to the Magistrate Judge’s analysis of Wife’s claims,
arguing that she: (1) did not consider whether Defendant Rainwater’s actions were
reasonable “at the time the decision to arrest [Wife] was made”; and (2) focused solely
on Wife’s words when considering whether Wife constituted a hindrance to Defendant
Rainwater. (ECF No. 74 at 2.) Both objections are without merit. First, when disposing of
Wife’s Fourth Amendment claims, the Magistrate Judge expressly considered “the
totality of the facts and circumstances within Defendant Rainwater’s knowledge at the
time of the arrest.” (ECF No. 72 at 19 (emphasis added).) Second, the Magistrate Judge
exhaustively recounted the parties’ markedly different versions of the events leading up
to Wife’s arrest, including Defendant Rainwater’s allegations that Wife verbally harassed
him, “[swung] at his head with her fist,” and was in close proximity to him throughout the
course of their interaction. (Id. at 13–15.) Contrary to Defendants’ assertion, the
Magistrate Judge did not focus on Wife’s words alone to find a genuine issue of material
fact as to whether probable cause existed to arrest Wife. Rather, the Magistrate Judge
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also noted that “Wife never positioned herself between Husband and Defendant
Rainwater” and eventually complied with Defendant Rainwater’s directive that she return
inside Plaintiffs’ home. (Id. at 18.)
The Magistrate Judge’s probable cause analysis was guided in part by McCoy v
City of Columbia, 929 F. Supp. 2d 541, 546–559 (D.S.C. 2013), wherein another court in
this district found that probable cause existed for officers to arrest a boisterous interloper
for “interfere[ing] with . . . a police officer in the lawful discharge of his duties.” Defendant
argues that the Magistrate’s analysis is flawed because she failed to consider that unlike
in “McCoy, where there were multiple officers-on-scene that could deal with the
interloper, here [Defendant] Rainwater was alone and outnumbered.” (ECF No. 74 at 2.)
However, this fact was not crucial to the McCoy court’s probable cause analysis—more
important to the court was that the interloper’s actions “forced the officers to divide their
attention between securing the arrestee and engaging [the interloper],” and that the
interloper “positioned himself in between the officers and their patrol car.” McCoy, 929 F.
Supp. 2d at 559. Thus, the Magistrate Judge did not err in this respect or in any other
portion of her analysis of Wife’s Fourth Amendment claims for seizure and arrest
violations.
The Magistrate Judge next found that a question of fact remains as to whether
Defendant Rainwater used excessive force during the course of Plaintiffs’ arrest. (ECF
No. 72 at 19.) After recounting “the three versions of what transpired between Plaintiffs
and Defendant Rainwater,” she recommended granting Defendants’ motion seeking
“summary judgment for Defendant Rainwater’s actions until Husband fell or was pushed
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from [the] porch,” and denying the motion seeking summary judgment for Defendant
Rainwater’s actions during and after Husband’s fall or push from [the] porch.” (Id. at 19–
27.) As for Wife, the Magistrate could not “find as a matter of law that Defendant
Rainwater used an objectively reasonable amount of force during his attempted
apprehension of Wife,” and denied summary judgment on Wife’s excessive force claim.
(Id. at 28.)
Here, Defendants seek to clarify the Magistrate’s finding on Husband’s claim,
objecting that this claim should be limited to Defendant Rainwater’s actions after
Husband fell from the porch. (ECF No. 74 at 3–4.) In support, they argue that Plaintiffs
have failed to create a genuine issue of material fact on this issue because Husband
gave inconsistent, ambiguous testimony. (Id. at 4.) However, the Magistrate Judge
expressly granted summary judgment “[u]p until the point where Husband falls from the
porch.” (ECF No. 72 at 26.) The Court finds no confusion as to the Magistrate’s holding
that Husband’s excessive force claim may proceed regarding “Defendant Rainwater’s
actions during and after Husband’s fall or push from the porch,” including whether
Husband was pushed off of the porch or fell on his own accord. (Id. at 27 (emphasis
added).)
Further, the Magistrate Judge correctly found that the parties’ differing testimony
on whether Husband was pushed or fell from the porch created a genuine issue of
material fact on this issue. The fact that Husband’s testimony was inconsistent on this
issue does not compel granting summary judgment. Defendant relies on Barwick v.
Celotex Corp., 736 F.2d 946 (4th Cir. 1984), for this notion. In Barwick, however, the
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court rejected a party’s post-deposition affidavit that effectively contradicted all
unfavorable testimony given in the party’s deposition three years earlier. 736 F.2d at
959–60. Here, Husband testified multiple times in his deposition that he was pushed off
the porch—this is corroborated by Wife’s deposition testimony. (ECF No. 55-1, Husband
Dep., at 86:9–13, 94:3–7; ECF No. 55-2, Wife Dep., at 42:19–25, 43:13–21.) Barwick is
therefore inapplicable to the present action, and the Magistrate Judge correctly denied
summary judgment as to this portion of Husband’s excessive force claim.
The Magistrate Judge next found that Husband’s cause of action for a § 1983
First Amendment violation fails because probable cause existed to arrest Husband. (ECF
No. 72 at 29.) However, the Magistrate Judge found that because an issue of fact
remained as to whether probable cause existed to arrest Wife, Wife’s cause of action for
a First Amendment violation should survive summary judgment. (Id. at 30.) Defendants
briefly object that “Plaintiffs failed to offer any evidence establishing the requisite
elements” of Wife’s First Amendment claim, citing Tobey v. Jones, 706 F.3d 379, 387
(4th Cir. 2013), without any accompanying explanation. (ECF No. 74 at 4.) In Tobey, the
court considered whether the plaintiff’s First Amendment claim could survive a qualified
immunity-based Rule 12(b)(6) motion to dismiss, stating that “[a] cognizable First
Amendment retaliation claim requires a plaintiff to show: (1) that plaintiff’s speech was
protected; (2) defendant’s alleged retaliatory action adversely affected the plaintiff’s
constitutionally protected speech; and (3) a causal relationship exists between plaintiff’s
speech and the defendant’s retaliatory action.” 706 F.3d at 387 (internal quotations and
citations omitted).
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Here, Plaintiffs’ Complaint sets forth a valid First Amendment claim based on
Officer Rainwater’s choice to arrest Wife “for exercising [her] first amendment right to
voice opposition to an unlawful arrest.” (ECF No. 1-1 at 13.) Specifically, Plaintiffs allege
that Wife “complaining about the assault on her husband and letting Defendant
Rainwater know he was a disabled veteran with medical and health issues is . . .
protected First Amendment conduct and was the motivating reason behind her arrest.”
(Id.) These allegations are supported by the facts laid out in the record, as exhaustively
recounted in the Report. Accordingly, this objection is overruled.
The Magistrate Judge next found that Defendant Rainwater is not entitled to a
qualified immunity defense on Plaintiffs’ excessive force claims and Wife’s First and
Fourth Amendment claims—however, she granted qualified immunity on Husband’s
Fourth and First Amendment claims. (ECF No. 72 at 30–33.) Here, Defendants object
that the Magistrate failed to properly apply the qualified immunity standard; specifically,
she “failed to consider whether, under Plaintiffs’ version of events, any mistake as to the
existence of actual probable cause was reasonable.” (ECF No. 74 at 5.) Defendants
contend that Defendant Rainwater is entitled to qualified immunity on each of Plaintiffs’
claims. (Id.)
Contrary to Defendants’ assertion, the Magistrate Judge properly applied the
qualified immunity standard to each of Plaintiffs’ claims and did not err in her
conclusions. She thoughtfully addressed each claim, focusing on whether Defendant
Rainwater acted in an objectively reasonable manner in connection to each allegation
and whether Plaintiffs’ rights were clearly established at the time Defendant Rainwater
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acted. (ECF No. 72 at 30–33.) She referenced her previous discussion of Wife’s Fourth
Amendment allegations to find that “whether it was objectively reasonable for Defendant
Rainwater to arrest Wife remains a question of fact.” (Id. at 32.) Defendants’ brief
objection fails to establish any error in the Magistrate Judge’s findings on qualified
immunity and is therefore overruled.
The Magistrate Judge next granted summary judgment on Husband’s state law
claims for false arrest and false imprisonment because he could not satisfy the “restraint
was unlawful” requirement. (ECF No. 72 at 35.) However, she denied summary judgment
on Wife’s state law claims for false arrest and false imprisonment, finding that whether
Wife’s restraint was unlawful remains a question of fact. (Id.) She further denied
summary judgment on Plaintiffs’ state law claims for battery, finding that whether the
alleged violence used against Plaintiffs was unlawful and unauthorized remains a
question of fact. (Id. at 36.)
Here, Defendants’ filing merely directs the Court to arguments originally made in
their motion for summary judgment. (ECF No. 74 at 6.) Defendants assert that the Court
should dismiss each of the state law claims and should further find that the South
Carolina Tort Claims Act (“SCTCA”) grants immunity to Defendant Sheriff of Chesterfield
County on all of the state law claims. (Id.) However, the Court finds no cause to stray
from the Magistrate Judge’s findings.
As an initial matter, the Magistrate Judge properly addressed each state law
claim. To dispose of the false arrest and false imprisonment claims, she summarized the
law on these causes of action in South Carolina and analyzed whether the facts and
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circumstances observed by Defendant Rainwater gave him probable cause to believe
that a crime had been freshly committed. (ECF No. 72 at 34–35.); see State v. Martin,
268 S.E.2d 105, 107 (S.C. 1980) (“[A]n officer can arrest for a misdemeanor [not
committed in his presence] when the facts and circumstances observed by the officer
give him probable cause to believe that a crime has been freshly committed.”). Then, to
address the battery claims, she summarized the tort of battery and referenced her earlier
excessive force analysis to find that these claims should survive summary judgment. (Id.
at 35–36.) Accordingly, the Court finds no error in the Magistrate’s discussion of the state
law claims or in her conclusions.
The Court further finds no error in the Magistrate’s discussion of the SCTCA. She
thoughtfully addressed each section of the South Carolina Code that Defendants
maintain provide Defendant Sheriff of Chesterfield County with immunity. She first found
that S.C. Code Ann. § 15-78-60(5), cannot provide immunity in light of Clark v. S.C.
Dep’t of Pub. Safety, 608 S.E.2d 573, 579 (S.C. 2005), wherein the South Carolina
Supreme Court held that “a law enforcement officer is not immune from liability under
Section 15-78-60(5) for the decision on whether to begin or continue the immediate
pursuit of a suspect.” (ECF No. 72 at 36.) The Magistrate Judge further found that S.C.
Code Ann. § 15-78-60(6), which provides immunity for loss resulting from the methods of
providing police protection, cannot provide immunity in the instant case. (Id. at 37.)
Specifically, she found that Husband’s actions did not present sufficient danger to require
police protection—Defendant Rainwater was not responding to a call where Husband
was continuing to threaten harm to the public or himself, and Husband’s altercation with
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the truck driver had ended before Defendant Rainwater arrived at Plaintiffs’ home. (Id.);
cf. Huggins v. Metts, 640 S.E.2d 465, 466 (S.C. 2006) (finding immunity under § 15-7860(6) where the state police responded to a call stating that plaintiff “was threatening to
burn down several homes and to commit suicide,” and where plaintiff was armed with
two butcher knives and continued to approach police after being warned to “not come
any closer or police will shoot”).
Finally, the Magistrate Judge found that S.C. Code § 15-78-60(4), which provides
immunity for loss resulting from “adoption, enforcement, or compliance with any law or
failure to adopt or enforce any law . . . ,” only applies to Defendant Rainwater’s
enforcement of a law or ordinance when he arrested Husband. (ECF No. 72 at 38.)
Because the Magistrate Judge recommended dismissing Husband’s § 1983 claims for
Fourth Amendment violations and state law causes of action for false arrest and false
imprisonment, she did not find further discussion of immunity under the SCTCA
necessary. (Id. at 38–39.) She then correctly found § 15-78-60(4) to be inapplicable to
the remaining causes of action. (Id.)
For the reasons stated above, the Court finds that the Report is exceptionally
thorough and properly disposes of Plaintiffs’ claims. Defendants’ objections are therefore
overruled. Whatever additional objections Defendants may mean, they are simply
renewals of arguments considered, and properly rejected, in the Report.
CONCLUSION
After careful consideration of the relevant motions, responses, and objections, the
Court adopts the Report and Recommendation and incorporates it herein by specific
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reference to the extent consistent. The Court further grants Defendants’ Motion to Strike
(ECF No. 82) Plaintiffs’ letter filed on November 19, 2015.4 However, the Court does not
find the filing of this letter to serve as a basis to dismiss this action. It is, therefore,
ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 42) is GRANTED
IN PART and DENIED IN PART. Husband’s § 1983 claims for Fourth Amendment
seizure and arrest violations and First Amendment violation, and his state law claims for
false arrest and false imprisonment are therefore dismissed. However, all remaining
causes of action may proceed.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
Greenville, South Carolina
February 10, 2016
4
Plaintiffs consent to striking this letter, which was apparently filed without their counsel’s knowledge.
(ECF No. 84.)
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