Scott v. Kingstree, Town of et al

Filing 49

ORDER adopting in part Report and Recommendations; granting 37 Motion for Summary Judgment. The part of the Report regarding the § 1983 claim is adopted and incorporated by reference, and that claim is dismissed with pre judice. The court declines to adopt the Reports recommendation of remandfor the state law claims, and finds the negligence and IIED/outrage claims are untimely and should be dismissed with prejudice. Plaintiffs claim against Defendant Town of Kingstr ee for false imprisonment under the SCTCA is also dismissed with prejudice for reasons set forth above. Plaintiffs state law claim for malicious prosecution is dismissed as agreed by Plaintiff,and all claims against Defendants Shaw and Kingstree Police Department are dismissed with prejudice. Signed by Honorable Cameron McGowan Currie on 7/25/2018.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Larry Scott,

C/A No. 4:16-2901-CMC
Plaintiff,

v.
OPINION AND ORDER
Town of Kingstree, Kingstree Police
Department and Joseph Shaw,
Defendants.

Larry Scott (“Plaintiff”) brought this action against the Town of Kingstree, Kingstree
Police Department, and Joseph Shaw (collectively “Defendants”)1 claiming violation of his
constitutional rights pursuant to 42 U.S.C. § 1983.2 ECF No. 14, Am. Compl. This matter is
before the court on Defendants’ motion for summary judgment filed December 11, 2017. ECF
No. 37. On December 21, 2017, 2017, Plaintiff filed a response in opposition. ECF No. 42.
Defendants filed a reply. ECF No. 43.
On May 11, 2018, the Magistrate Judge issued a Report and Recommendation,
recommending Defendants’ motion for summary judgment be granted as to the federal claim
under § 1983, and the remaining state law claims be remanded to state court. ECF No. 44. The
Magistrate Judge advised the parties of the procedures and requirements for filing objections to

1

Williamsburg County, an original defendant in this case, was dismissed by stipulation on June
28, 2017. ECF No. 28.
2

Plaintiff originally filed the case in the Court of Common Pleas for Richland County, but
Defendants removed to this court. After removal, Plaintiff filed an Amended Complaint.

the Report and the serious consequences if they failed to do so. On May 25, 2018, both parties
filed objections to the Report. ECF Nos. 45, 46. Defendants filed a reply on June 8, 2018. ECF
No. 48. This matter is ripe for the court’s review.
I.

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 (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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely
filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
II.

Discussion

Plaintiff has alleged five causes of action against Defendants in his Amended Complaint:
(1) negligence and negligent supervision; (2) false arrest and imprisonment under state law; (3)
intentional infliction of emotional distress (“IIED”); (4) malice under state law; and (5) a federal
claim for false arrest and imprisonment and malicious prosecution under § 1983. ECF No. 14.

2

The Report3 recommends dismissal of Plaintiff’s federal claim because Plaintiff’s indictment by
the Grand Jury on state charges of kidnapping, armed robbery, and possession of a weapon
during the commission of a violent crime establishes probable cause for the arrest and
prosecution, defeating Plaintiff’s claim.

ECF No. 44 at 8.

The Magistrate Judge also

recommends remand of Plaintiff’s four4 state law claims. Id. at 14. As Plaintiff has conceded
the sole proper party for his state law claims is the Town of Kingstree (see ECF No. 42 at 9), the
Report recommends dismissal of Kingstree Police Department5 and Joseph Shaw, individually.
Id. at 16. Plaintiff has also agreed to dismiss his state law claim for malicious prosecution as the
South Carolina Tort Claims Act (“SCTCA”) bars the cause of action, and the Report
recommends such a dismissal. ECF Nos. 42 at 11; 44 at 16.
a. Federal § 1983 claim
Plaintiff objects to the recommended dismissal of his § 1983 claim, arguing Defendant
Shaw swore to a false statement in the arrest warrant affidavit and therefore no probable cause
ever existed to arrest Plaintiff. ECF No. 45. He contends a question of fact exists as to whether
Shaw made a false statement in the arrest affidavit and therefore the issuance of the arrest
warrant by a magistrate and the grand jury indictment do not foreclose his claim. Plaintiff also
argues the existence of a warrant is not an absolute bar to a claim of false imprisonment under

3

The court adopts the facts as presented in the Report.
As Plaintiff has agreed to drop his state law claim for malicious prosecution, only three state
law claims still exist.
4

5

Plaintiff agreed to the dismissal of Kingstree Police Department. ECF No. 42 at 2 n.1.

3

Franks v. Delaware, 438 U.S. 154 (1978), and that proceedings were terminated in his favor
when the prosecutor nolle prossed his charges. Id. at 4.
Defendants replied to Plaintiff’s objections, arguing Plaintiff cannot rebut the
presumption of probable cause established by the grand jury indictment, as there is no evidence
Shaw testified before the grand jury at all, much less provided false information. ECF No. 48.
In addition, they contend the Magistrate Judge was not required to undertake an analysis
pursuant to Franks v. Delaware, 438 U.S. 154 (1978), as Plaintiff argues, because determinations
of probable cause by the grand jury, state trial judge and appeals court broke the chain of
causation between Plaintiff’s alleged unlawful arrest and his conviction. Id. at 3-5.
Plaintiff’s § 1983 claim is characterized as one for false arrest/imprisonment and
malicious prosecution. As recognized by the Magistrate Judge, the false arrest claim ceased, at
the latest, by the time of the grand jury indictment.6 See ECF No. 44. After the indictment,
Plaintiff’s § 1983 claim can only be for malicious prosecution.7
“The Fourth Amendment prohibits law enforcement officers from making unreasonable
seizures, and the seizure of an individual effected without probable cause is unreasonable.”

6

The court notes “the statute of limitations upon a § 1983 claim seeking damages for a false
arrest in violation of the Fourth Amendment, where the arrest is followed by criminal
proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.”
Wallace v. Kato, 549 U.S. 384, 396 (2007). In this case, Plaintiff was detained pursuant to legal
process no later than the date the grand jury returned the indictment in 2006, as Plaintiff has
failed to show the grand jury indictment was tainted by the alleged false statement. See infra at
6-7.
7

“[I]t is not entirely clear whether the Constitution recognizes a separate constitutional right to
be free from malicious prosecution . . . if there is such a right, the plaintiff must demonstrate both
an unreasonable seizure and a favorable termination of the criminal proceeding flowing from the
seizure.” Snider v. Seung Lee, 584 F.3d 193, 199 (4th Cir. 2009).

4

Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 183 (4th Cir. 1996). To establish a Fourth
Amendment claim for “malicious prosecution,” Plaintiff must demonstrate Defendant “seized the
plaintiff pursuant to legal process that was not supported by probable cause” and that the
criminal proceedings terminated in his favor.8 Durham v. Horner, 690 F.3d 183, 189 (4th Cir.
2012). A grand jury indictment, “fair on its face . . . conclusively determines the existence of
probable cause.” Id. However, “a grand jury’s decision to indict will not shield a police officer
who deliberately supplied misleading information that influenced the decision.” Massey v.
Ojaniit, 759 F.3d 343, 356-57 (4th Cir. 2014). False statements or omissions violate the Fourth
Amendment only if they are material, or necessary to the finding of probable cause, and “made
deliberately or with a reckless disregard for the truth.” Id. at 357. “While intervening acts of
other participants in the criminal justice system, such as an exercise of prosecutorial discretion or
the return of an indictment, generally insulate a police officer from liability, officers may be
liable to a wrongfully indicted defendant when they have, e.g., lied to or misled the prosecutor.”
Id. at 357 (internal citations omitted).
Plaintiff argues Shaw made a false statement that Plaintiff was identified on the video
“deliberately or with reckless disregard for the truth” to obtain the arrest warrant in violation of
the Fourth Amendment. Franks, 438 U.S. at 155; Miller v. Prince George County, MD., 475
F.3d 621, 631 (4th Cir. 2007).9 However, even if Plaintiff survives the first hurdle of showing

8

The statute of limitations for a § 1983 malicious prosecution claim is three years, and begins to
run when the criminal proceedings terminate in plaintiff’s favor. Snider, 584 F.3d at 199.

9

Plaintiff cites Miller in support of his argument regarding probable cause; however, the plaintiff
in that case was “cleared of the charges and released” before presentment to the grand jury.
Miller, 475 F.3d at 626. Therefore, while Miller may support Plaintiff’s claim regarding the
Footnote Continued . . .
5

the arrest warrant was issued due to the deliberate or reckless false statement, there are still
several other instances in which probable cause was found: the grand jury indictment, the
prosecutor’s decision to charge, the trial judge’s denial of a directed verdict, and the South
Carolina Court of Appeals’ affirmance of his conviction.
Plaintiff argues the grand jury indictment was tainted by the submission of the false
statement, and therefore does not foreclose his right to pursue a Fourth Amendment claim.
However, he has presented no evidence the grand jury indictment was actually influenced by the
alleged false statement in the affidavit. Plaintiff notes “the testimony before the grand jury
would have been whether they agreed or disagreed with the information contained in the arrest
warrant,” citing Shaw’s deposition at 130:17-22.

However, this does not prove what was

actually testified to before the grand jury, and Shaw’s deposition merely shows agreement, in a
general sense, that the grand jury “gives an indictment” “that is either agreeing or disagreeing
with [the] arrest warrant.” ECF No. 42-1 at 34, Shaw dep. 130:19-22. Plaintiff’s arguments in a
brief to the court regarding what the grand jury testimony would have been do not meet his
burden of showing false testimony was submitted to the grand jury and was the basis for his
indictment. See, e.g., ECF No. 45 at 3 (“[T]he probable cause presented to the grand jury would
have been the statement that Plaintiff was positively identified in video surveillance, an untrue
statement.” (emphasis added)). Further, other testimony could have been elicited in the grand
jury proceedings to support the warrant. The unsupported arguments provided by Plaintiff
regarding what “would have” happened at the grand jury simply are not enough to create a

issuance of the warrant, it does not address continuing instances of probable cause as found at
various points in the prosecution process.
6

genuine issue of fact. See Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (“The burden
of rebutting the presumption of probable cause requires the plaintiff to establish what occurred in
the grand jury, and to further establish that those circumstances warrant a finding of misconduct
sufficient to erode the premise that the grand jury acts judicially.”) As noted by the Magistrate
Judge, this failure means Plaintiff is unable to avoid summary judgment on either a false arrest or
malicious prosecution10 claim.
Further, even assuming the grand jury indictment was tainted by the alleged false
statement, the trial judge’s denial of a directed verdict, the jury verdict of guilty, and the Appeals
Court’s affirmance of that verdict all establish probable cause for Plaintiff’s arrest. Officer
Neville agreed in his testimony at trial the photographs from the store video bore similarities to
the mug shots of Plaintiff and his co-defendant, but he could not testify the mug shot photograph
and the photograph from the robbery depicted the same individuals. ECF No. 37-5 at 142-144,
Trial Tr. at 199:14-19; 201:8-16. Despite this testimony, Plaintiff’s directed verdict motion was
denied and the jury found him guilty. Any alleged improper taint in the warrant or grand jury
indictment was cured by these subsequent actions.
As Plaintiff has failed to raise an issue of material fact regarding the grand jury
indictment (or other points in the process where probable cause was found), summary judgment
for Defendants is appropriate. Plaintiff’s § 1983 claim is dismissed with prejudice.
b. State Law Claims

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The court further agrees with the Magistrate Judge Plaintiff has failed to show the underlying
criminal charges were terminated in his favor, only showing they were nolle prossed because he
had already served seven years. ECF No. 37-3 at 18.
7

Defendants object to remand of the state law claims and request the court enter summary
judgment on those claims on grounds they were filed outside the statute of limitations. ECF No.
46. Plaintiff did not respond to this argument in his objections, but noted in his opposition to
summary judgment the statute of limitations on state law claims did not begin to run until the
charges against him were dismissed. ECF No. 42.
As Plaintiff has agreed to dismiss his malicious prosecution claim because the SCTCA
bars that cause of action, and agreed Defendant Town of Kingstree is the only proper party
against whom the state law claims are maintained, the remaining state law claims are negligent
training and supervision of Shaw, false imprisonment, and intentional infliction of emotional
distress (“IIED”), or outrage against Defendant Town of Kingstree. See ECF No. 42.
a. Negligent Training/Supervision and IIED/Outrage
Plaintiff’s negligence claim centers on the Town’s alleged failure to properly train and
supervise its officers, including Shaw, which led to Shaw submitting the affidavit containing an
alleged false statement. ECF No. 42 at 9-10. The statute of limitations under the SCTCA is two
years. S.C. Code § 15-78-110. Shaw’s action of submitting an alleged false statement in the
affidavit occurred in April 2006. Plaintiff knew or should have known of the alleged false
statement in the affidavit at the time of his arrest in April 2006, or at the very latest at the time of
his trial in March 2007. See Brown v. Leonard, 2008 WL 9832870 at *5 (Jan. 11, 2008) (holding
negligent supervision claim based on deputy’s arrest of the plaintiff had been filed outside statute
of limitations because the statute began to run on the date of arrest, not on the date the plaintiff’s
charges were nolle prossed). The claim of negligent training/supervision was not filed until May
31, 2016. Therefore, this claim was filed outside the statute of limitations, is untimely, and
dismissed with prejudice.
8

Similarly, Plaintiff’s IIED/outrage claim is based on Shaw’s action of submitting
allegedly false information in the affidavit. As noted above, this occurred in April 2006, and
Plaintiff knew or should have known of the statement at least by his trial in March 2007. As this
IIED/outrage claim was filed in May 2016, it is outside the statute of limitations. Therefore, it is
dismissed with prejudice.
b. False Imprisonment
The statute of limitations for false imprisonment is two years, as is the limitations period
in the SCTCA. S.C. Code § 15-3-550; § 15-78-110. For false imprisonment claims, the statute
of limitations “begins to run when the plaintiff is released following an arrest.”11 Canzater v.
City of Columbia, No. 2004-UP-054, 2004 WL 6248833 at *1 (S.C. Ct. App. Jan. 22, 2004).
While the record does not definitively show when Plaintiff was released from custody, his state
Post-Conviction Relief Application was granted on May 24, 2014, ordering a new trial. The
Solicitor’s Office chose to nolle pross the charges on August 5, 2014. The instant case was filed
(originally in state court) on May 31, 2016. Although it is possible Plaintiff could have been
released from custody before May 31, 2014, the record does not establish this. Therefore,
summary judgment based on the statute of limitations is inappropriate for this claim.
However, the South Carolina Supreme Court has held “[i]f a lawful arrest has been
improvidently procured, without probable cause, the plaintiff’s remedy lies in an action for
malicious prosecution . . . the law refers an innocent person so wronged to the action of

11

Defendants cite federal cases holding a § 1983 false arrest/imprisonment claim accrues when a
plaintiff was detained pursuant to legal process. ECF No. 43 at 9 n.5 (citing Wallace v. Kato,
549 U.S. 384 (2007), et al.). However, this state claim of false arrest or imprisonment is brought
under South Carolina law.

9

malicious prosecution for the only redress to which he is entitled.” Bushardt v United Inv. Co.,
113 S.E.2d 637, 639 (S.C. 1922); see also Whaley v. Lawton, 35 S.E. 741, 743 (S.C. 1900)
(holding false imprisonment “proceeds upon the theory that the plaintiff has been arrested
without authority of the law and illegally deprived of his liberty, while [malicious prosecution]
proceeds upon the theory that such prosecution is malicious and without probable cause.”);
Watkins v. Mobil Oil Corp., 313 S.E.2d 641 (S.C. Ct. App. 1984) (“[W]here one is lawfully
arrested by lawful authority, an action for false imprisonment cannot be maintained against the
party causing the arrest.”).12 In the instant case, Plaintiff was arrested pursuant to a facially valid
warrant. Although he alleges a statement in the affidavit was false, he does not contest the facial
validity of the warrant. Therefore, under South Carolina law, his remedy must lie in an action
for malicious prosecution. As Defendants enjoy absolute immunity for malicious prosecution,
Plaintiff has agreed to dismiss his malicious prosecution claim. Therefore, summary judgment is
appropriate on this claim and it is dismissed with prejudice.
III.

CONCLUSION

Having conducted a de novo review of the Report and underlying motion and related
memoranda, and having fully considered all objections, the court adopts the Report in part.
Defendants’ motion for summary judgment (ECF No. 37) is granted as to all claims. The part of
the Report regarding the § 1983 claim is adopted and incorporated by reference, and that claim is

12

The court recognizes more recent South Carolina cases evaluated claims for false
imprisonment where the arrest was made pursuant to a warrant. Law v. South Carolina Dept. of
Corr., 629 S.E.2d 642 (S.C. 2006); Huffman v. Sunshine Recycling, LLC, 790 S.E.2d 401, 406
(S.C. Ct. App. 2016), cert. granted, No. 2016-002080 (S.C. 2017). However, neither discussed
long-standing precedent in South Carolina that there can be no claim for false
arrest/imprisonment where the arrest is effectuated by a facially valid warrant.

10

dismissed with prejudice. The court declines to adopt the Report’s recommendation of remand
for the state law claims, and finds the negligence and IIED/outrage claims are untimely and
should be dismissed with prejudice. Plaintiff’s claim against Defendant Town of Kingstree for
false imprisonment under the SCTCA is also dismissed with prejudice for reasons set forth
above. Plaintiff’s state law claim for malicious prosecution is dismissed as agreed by Plaintiff,
and all claims against Defendants Shaw and Kingstree Police Department are dismissed with
prejudice.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
July 25, 2018

11