Page v. South Carolina, State of et al

Filing 122

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates by reference Magistrate Judge's the R & R [ECF No. 117 ]. Accordingly, the Court GRANTS Defendant Bethea's motion for summary judgment [ECF No. 109 ] and DISMISSES this action with prejudice. IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 8/15/2018. (prou, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Levonda Page,

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Plaintiff,
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v.
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Andy Bethea,
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Defendant.
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________________________)

Civil Action No.: 4:16-cv-02820-RBH

ORDER

Plaintiff Levonda Page, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. The
matter is before the Court for consideration of Plaintiff’s objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge Kaymani D. West, who recommends granting Defendant
Andy Bethea’s motion for summary judgment.1 See ECF Nos. 117 & 119.
Legal Standards
I.

Review of the R & R
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

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 must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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); Fed. R. Civ. P. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when

1

The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.). This case is related to Sampson v. Bethea, No. 4:16-cv-02821-RBH (D.S.C.).

a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
II.

Summary Judgment
Summary judgment is appropriate when no genuine issue of material fact exists and the moving

party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407,
413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The facts and
inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving
party, Reyazuddin, 789 F.3d at 413, but 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).
Moreover, “the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A
dispute of material fact is ‘genuine’ if sufficient evidence favoring the non-moving party exists for the
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trier of fact to return a verdict for that party.” Seastrunk v. United States, 25 F. Supp. 3d 812, 814
(D.S.C. 2014). A fact is “material” if proof of its existence or nonexistence would affect disposition
of the case under the applicable law. Anderson, 477 U.S. at 248.
At the summary judgment stage, “the moving party must demonstrate the absence of a genuine
issue of material fact. Once the moving party has met his burden, the nonmoving party must come
forward with some evidence beyond the mere allegations contained in the pleadings to show that there
is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th Cir. 1992)
(internal citation omitted). Summary judgment is not warranted unless, “from the totality of the
evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the [C]ourt
believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment
as a matter of law.” Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
Discussion2
Plaintiff brought this § 1983 action against Defendants Derrick Cartwright, Andy Bethea, and
Troy Jones claiming he was falsely accused of shooting a man, which led to him being unlawfully
arrested and his home illegally searched. Previously, the Court granted motions for summary judgment
filed by Defendants Cartwright and Jones and dismissed them from this action. See ECF No. 106.
Defendant Bethea has now filed a motion for summary judgment,3 see ECF No. 109, and the Magistrate

2

The R & R thoroughly summarizes the factual and procedural background of this case, as well as the
applicable legal standards. As the Magistrate Judge notes, Plaintiff originally sued the State of South Carolina, the
Latta Police Department, the South Carolina Law Enforcement Division, and the Dillon County Sheriff’s Office. See
R & R at pp. 1–2. The Court dismissed these defendants and allowed Plaintiff to amend his complaint to substitute
Derrick Cartwright, Andy Bethea, and Troy Jones as the named defendants in this case. See ECF No. 18.
3

Defendant Bethea was served at a later time and filed an answer on October 19, 2017. See ECF Nos. 97

& 98.

3

Judge has entered an R & R recommending that the Court grant the motion. See ECF No. 117. Plaintiff
has filed objections to the R & R. See ECF No. 119.4
As the Magistrate Judge explains, Plaintiff alleges violations of his Fourth Amendment rights
and asserts claims under § 1983 for unlawful search and seizure.
The evidence in the record establishes the following undisputed facts. Lou Allen was shot
multiple times on the night of May 9, 2014, on Clara Street in Latta, South Carolina, and was
transported to the hospital. Defendant Bethea of the South Carolina Law Enforcement Division
(“SLED”) assisted the Latta Police Department in investigating the shooting; he arrived at the scene and
interviewed several witnesses, but they could not identify the shooter.
In June 2014, Defendant Bethea, along with Defendant Cartwright of the Latta Police
Department, visited Allen in the hospital and Allen was shown a six-photo lineup containing Plaintiff’s
photograph. Allen could not talk but could communicate through writing and hand gestures, and upon
being shown the lineup, he circled Plaintiff’s photo and wrote “V.P.” next to it. Additionally, Allen
signed a written statement specifying “the person that shot me is Von Page.” Significantly, in his
complaint,5 Plaintiff represents that street informants told police he shot Allen and that Allen
“positive[ly] identif[ied] him because his “face looked familiar” to the shooter’s.6 ECF No. 1-1 at p.
3.

4

Defendant Bethea did not file objections to the R & R or respond to Plaintiff’s objections.

5

Plaintiff has submitted supplemental pleadings stating “each and every factual allegation[] of my
complaint . . . are factual and true under the law of perjury.” ECF No. 50-1 at p. 2. Thus, the Court treats Plaintiff’s
pleadings as a verified complaint, which “is the equivalent of an opposing affidavit for summary judgment purposes,
when the allegations contained therein are based on personal knowledge.” Williams v. Griffin, 952 F.2d 820, 823
(4th Cir. 1991).
6

Plaintiff indicates Allen had known him for “over 20 yrs.,” ECF No. 119 at p. 2, and his complaint describes
their personal history with one another. See ECF No. 1-1 at pp. 3, 7–8.

4

On June 5, 2014, Defendant Cartwright went before a Latta municipal judge to obtain arrest
warrants, and he submitted supporting affidavits that stated Plaintiff shot Allen five times with a 9 mm
handgun. Additionally, Defendant Cartwright was placed under oath7 and presented the municipal
judge with the evidence uncovered during his investigation—including Allen’s positive identification
of Plaintiff. The municipal judge issued three arrest warrants (for attempted murder and two firearm
charges), and a state magistrate judge certified the warrants for service in Dillon County. Defendant
Cartwright then went before the same magistrate judge to obtain a search warrant for Plaintiff’s
residence to look for the weapon used in the shooting; Defendant Cartwright submitted an affidavit in
support of the search warrant stating that Plaintiff was a fugitive from justice and that a gun was being
sought from the premises.8 Later that day, Defendants Cartwright, Bethea, Jones (a Dillon County
Sheriff’s Deputy), and other officers went to the South Park area to execute the arrest and search
warrants. Officers arrested Plaintiff and searched his residence; they did not find the gun used in the
shooting, but did find another gun and drugs. Plaintiff was taken to jail and booked on the charges
related to Allen’s shooting, and the next day (June 6) he was subsequently served arrest warrants
relating to the drugs and gun found in his residence.9 Plaintiff remained in jail from June 5, 2014, until

7

See generally Owens ex rel. Owens v. Lott, 372 F.3d 267, 278 (4th Cir. 2004) (“[A] magistrate may consider
sworn, unrecorded oral testimony in making probable cause determinations during warrant proceedings.” (internal
quotation marks omitted)); Law v. S.C. Dep’t of Corr., 629 S.E.2d 642, 651 (S.C. 2006) (stating that in South
Carolina, an arrest “warrant affidavit . . . may be supplemented before a magistrate by sworn oral testimony”). See
also Hall v. State, 768 S.E.2d 401, 402 (S.C. 2015) (recognizing that both magistrate and municipal court judges can
issue arrest warrants).
8

Defendant Cartwright also obtained a search warrant for Plaintiff’s father’s residence, where Plaintiff
sometimes stayed.
9

On June 12, 2014, Allen provided a second statement that again identified Plaintiff as his shooter.
Additionally, public records indicate Plaintiff was indicted on September 18, 2014, for attempted murder and the two
firearm charges. See Dillon County Public Index, available at http://publicindex.sccourts.org/Dillon/PublicIndex
(indictments numbered 2014GS1700452, 2014GS1700451, and 2014GS1700453).

5

June 11, 2015, and the state prosecutor ultimately dropped the charges.
Plaintiff acknowledges that he was arrested pursuant to warrants and that his home was searched
pursuant to a warrant, but he appears to claim those warrants were not supported by probable cause.
See Pl.’s Objs. [ECF No. 119]. The Fourth Amendment protects individuals from unreasonable
searches and seizures by the government and requires warrants be issued only upon a finding of
probable cause. U.S. Const. amend. IV. “Probable cause exists when the facts and circumstances
within an officer’s knowledge—or of which he possesses reasonably trustworthy information—are
sufficient in themselves to convince a person of reasonable caution that an offense has been or is being
committed.” Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000). “Probable cause is determined by
a totality-of-the circumstances approach. While probable cause requires more than bare suspicion, it
requires less than that evidence necessary to convict.” Smith v. Munday, 848 F.3d 248, 253 (4th Cir.
2017) (internal citation and quotation marks omitted). “A court should only consider the information
the officers had at the time they sought the warrant. . . . [T]he probable-cause inquiry examine[s] the
facts within the knowledge of arresting officers to determine whether they provide a probability on
which reasonable and prudent persons would act.” Id. (alteration in original; internal citation and
quotation marks omitted). “The validity of the arrest does not depend on whether the suspect actually
committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is
arrested is irrelevant to the validity of the arrest.” Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).
“The magistrate issuing the search warrant must make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit[, that] there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Owens, 372 F.3d at 273 (internal quotation
marks omitted); see also State v. Kinloch, 767 S.E.2d 153, 155 (S.C. 2014) (“A warrant is supported
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by probable cause if, given the totality of the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”).10
Regarding the arrest warrants, there was sufficient information for a reasonable and prudent
person to believe there was probable cause that Plaintiff shot Allen—specifically, Defendant Cartwright
presented the municipal judge with Allen’s positive identification made the previous day (from the
photo lineup and signed statement) that Plaintiff was the shooter.11 See Humbert v. Mayor & City
Council of Baltimore City, 866 F.3d 546, 557 (4th Cir. 2017) (“It is surely reasonable for a police
officer to base his belief in probable cause on a victim’s reliable identification of his attacker.”);
Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991) (“Indeed, it is difficult to imagine how a
police officer could obtain better evidence of probable cause than an identification by name of assailants
provided by a victim, unless, perchance, the officer were to witness the crime himself.”). Likewise,
regarding the search warrants, the magistrate judge (who had certified the arrest warrants) could
reasonably conclude there was a fair probability that the gun Plaintiff allegedly used in the shooting
would be found at Plaintiff’s residence. See United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993)
10

The Court also incorporates by reference the applicable law and well-reasoned analysis set forth on pages
6 through 10 of the R & R. Although not specifically addressed by the Magistrate Judge, the Court notes Plaintiff’s
unlawful seizure claim should be construed as a malicious prosecution claim. See Humbert, 866 F.3d at 555
(“[A]llegations that an arrest made pursuant to a warrant was not supported by probable cause . . . are considered a
§ 1983 malicious prosecution claim. . . . To succeed, a plaintiff must show that the defendant (1) caused (2) a seizure
of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in
[the] plaintiff’s favor.” (alterations in original and internal quotation marks omitted)).
11

Plaintiff has not submitted any evidence suggesting that the victim’s identification was unreliable, that the
photo lineup was unduly suggestive, or that Defendant Cartwright made materially false statements or omissions in
support of the warrant application. See Humbert, 866 F.3d at 555 (explaining what a § 1983 plaintiff asserting an
unlawful seizure claim must prove if he was arrested pursuant to a facially valid warrant).
The Court emphasizes that the validity of Plaintiff’s arrest (and search of his residence) does not depend
on whether his charges were ultimately dropped; the Court’s duty is limited to determining whether the judges issuing
the warrants had a legitimate basis for finding probable cause at the time Defendant Cartwright applied for them.
See generally Baker v. McCollan, 443 U.S. 137, 145 (1979) (“The Constitution does not guarantee that only the
guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for
every suspect released.”).

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(“In determining whether a search warrant is supported by probable cause, the crucial element is not
whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the
items to be seized will be found in the place to be searched.” (citing Zurcher v. Stanford Daily, 436 U.S.
547, 556 (1978))). In short, Plaintiff was arrested and his residence was searched pursuant to facially
valid arrest and search warrants supported by probable cause. Accordingly, the Court finds no genuine
dispute of material fact exists as to whether probable cause supported the arrest and search warrants,
and therefore summary judgment is proper on Plaintiff’s § 1983 claims for unlawful search and seizure.
In sum, the Court agrees with the Magistrate Judge that Defendant Bethea is entitled to summary
judgment for the following reasons: (1) Plaintiff’s § 1983 claims for unlawful search and seizure must
be dismissed because (a) officers had probable cause to arrest Plaintiff based on three facially valid
arrest warrants as well as the victim’s positive identification of Plaintiff as the shooter, and (b) officers
executed a facially valid search warrant supported by probable cause; and (2) Defendant Bethea is
alternatively entitled to qualified immunity. See R & R at pp. 6–11. Accordingly, the Court will adopt
the R & R and grant Defendant Bethea’s motion for summary judgment.12
Conclusion
For the foregoing reasons, the Court adopts and incorporates by reference Magistrate Judge’s
the R & R [ECF No. 117]. Accordingly, the Court GRANTS Defendant Bethea’s motion for summary
12

Although not specifically addressed by Defendant Bethea or the Magistrate Judge, the Court notes that to
the extent Plaintiff sues Defendant Bethea (a SLED employee) in his official capacity for damages, any such claim
is subject to summary dismissal pursuant to 28 U.S.C. §1915(e)(2)(B)(iii) because “[t]he Eleventh Amendment bars
suit against state officials in their official capacity for damages under 42 U.S.C. § 1983.” Lawson v. Union Cty. Clerk
of Court, 828 F.3d 239, 278 (4th Cir. 2016); see 28 U.S.C. §1915(e)(2)(B)(iii) (providing that in a proceeding in
forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . seeks
monetary relief against a defendant who is immune from such relief” (emphasis added)); S.C. Code Ann. § 23–3–10
(establishing SLED as a state agency); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit
against a state official in his or her official capacity is not a suit against the official but rather is a suit against the
official’s office. As such, it is no different from a suit against the State itself. . . . [N]either a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.” (internal citation omitted)).

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judgment [ECF No. 109] and DISMISSES this action with prejudice.
IT IS SO ORDERED.

Florence, South Carolina
August 15, 2018

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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