Bolick v. Thompson et al
ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS IN PART AND REJECTS IN PART the Magistrate Judge's R & R [ECF No. 56 ], GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss [ECF No. 44 ], and DISMISSES Defendant Phillip Thompson with prejudice. The Court DENIES Defendants' motion for a protective order [ECF No. 45 ] without prejudice, as their motion was tied to their request for dismissal. This case will proceed solely as to Plaintiff's § 1983 illegal extradition claim for damages against Defendants Tomkins and Doe. IT IS SO ORDERED. Signed by Chief Judge R Bryan Harwell on 6/3/2021. (prou, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Theodore J. Bolick,
Phillip Thompson, Officer Tomkins, )
and Officer John Doe,
Civil Action No.: 5:20-cv-02888-RBH
Plaintiff Theodore J. Bolick filed this pro se 42 U.S.C. § 1983 action in state court against
Defendants—the Sheriff of Horry County and two deputies—alleging his extradition from North
Carolina to South Carolina was unlawful. Defendants removed the action to this Court and filed a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and a related motion for a protective order. The
Magistrate Judge recommends granting both motions. See Report and Recommendation (“R & R”)
[ECF No. 56].1 Plaintiff has filed objections to the R & R, and Defendants have filed a reply to
Plaintiff’s objections. See Pl.’s Objs. [ECF No. 58]; Defs.’ Reply [ECF No. 59]. The Court adopts in
part and rejects in part the R & R for the reasons herein.
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
The Magistrate Judge issued the R & R pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.). The Court is mindful of its duty to liberally construe Plaintiff’s pro se filings. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (recognizing “[a] document filed pro se is to be liberally construed” (internal quotation marks
omitted)). But see United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (“Although courts must liberally
construe the claims of pro se litigants, the special judicial solicitude with which a district court should view pro se
filings does not transform the court into an advocate.” (cleaned up)).
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
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 need only review
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).
“To survive a Rule 12(b)(6) motion, the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Elliott v. Am. States Ins. Co., 883
F.3d 384, 395 (4th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court will “consider as true all well-pleaded
allegations in the complaint, matters of public record, and documents attached to the motion to dismiss
that are integral to the complaint and of unquestioned authenticity.” Woods v. City of Greensboro, 855
F.3d 639, 642 (4th Cir. 2017); see Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009) (“A federal court
may consider matters of public record such as documents from prior state court proceedings in
conjunction with a Rule 12(b)(6) motion.”).
Uniform Criminal Extradition Act
“[A] number of circuit courts, including [the United States Court of Appeals for the Fourth
Circuit], have held that a violation of the [Uniform Criminal Extradition Act] can provide a basis for
a § 1983 claim on the ground that the state extradition statutes are derivative of or are implementing
federal law (i.e., the Extradition Clause [U.S. Const. art. IV, § 2, cl. 2] and the federal extradition statute
[18 U.S.C. § 3182]).” Scull v. New Mexico, 236 F.3d 588, 596 n.1 (10th Cir. 2000) (collecting cases
including Wirth v. Surles, 562 F.2d 319 (4th Cir. 1977))). Thus, “law enforcement officials must follow
the clear mandates of state and federal extradition laws in the apprehension and transportation of
fugitives.” Young v. Nickols, 413 F.3d 416, 419 (4th Cir. 2005) (brackets removed).
The Uniform Criminal Extradition Act, as enacted by the North Carolina General Assembly, see
N.C. Gen. Stat. §§ 15A–721 to –750, governs the interstate transfer of fugitives from justice found in
North Carolina. Batten v. Gomez, 324 F.3d 288, 294 (4th Cir. 2003). The Governor of North Carolina
has the duty “to have arrested and delivered up to the executive authority of any other state of the United
States any person charged in that state with treason, felony or other crime, who has fled from justice and
is found in [North Carolina].” N.C.G.S. § 15A–722. An extradition demand must be made in writing
to the Governor. Id. § 15A–723. If the Governor decides to comply with the demand, he signs an arrest
warrant that “must substantially recite the facts necessary to the validity of its issuance.” Id.
§ 15A–727. The governor’s extradition arrest warrant authorizes “any peace officer or other person”
chosen by the Governor to arrest the accused in North Carolina and to deliver the accused to the
demanding state. Id. §§ 15A–727, –728. Section 15A–730 (at issue in this case) details the rights of
an accused person arrested on a governor’s extradition arrest warrant, including his right to apply for
a writ of habeas corpus:
No person arrested upon such warrant shall be delivered over
to the agent whom the executive authority demanding him shall have
appointed to receive him unless he shall first be taken forthwith
before a judge of a court of record in this State, who shall inform him
of the demand made for his surrender and of the crime with which he
is charged, and that he has the right to demand and procure legal
counsel; and if the prisoner or his counsel shall state that he or they
desire to test the legality of his arrest, the judge of such court of
record shall fix a reasonable time to be allowed him within which
to apply for a writ of habeas corpus. When such writ is applied for,
notice thereof, and of the time and place of hearing thereon, shall be
given to the prosecuting officer of the county in which the arrest is
made and in which the accused is in custody, and to the said agent of
the demanding state.
Id. § 15A–730 (emphasis added).
In July 2019, after failing to appear for trial, Plaintiff was tried in absentia in South Carolina
state court and convicted of three counts of second-degree burglary; the trial court issued a bench
warrant for Plaintiff’s arrest. On March 2, 2020, U.S. Marshals arrested him in Randolph County,
North Carolina on a fugitive arrest warrant issued by a magistrate pursuant to N.C.G.S. §§ 15A–733
The following facts appear in Plaintiff’s complaint (ECF No. 1-1), public records attached to Defendants’
motion to dismiss (ECF Nos. 44-1 and 44-2), and public records available through the electronic South Carolina
Appellate Case Management System/C-Track (https://ctrack.sccourts.org/public/caseSearch.do [Case No.
2 0 2 0 - 0 0 1 4 9 7 ] ) a n d t he H o r r y C o u n t y F i f t e e nt h J u d i c i a l C i r c u i t P u b l i c I n d e x
(https://publicindex.sccourts.org/Horry/PublicIndex/PISearch.aspx [Case Nos. 2016A2620602245,
2016A2620602250, and 2016A2620602251). See Woods, 855 F.3d at 642 (describing materials a court may
consider when ruling on a Rule 12(b)(6) motion); Fusaro v. Cogan, 930 F.3d 241, 245 n.1 (4th Cir. 2019)
(recognizing a court may take judicial notice of state court documents when deciding a Rule 12(b)(6) motion (citing
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239–40 (4th Cir. 1989))); United States v. Garcia, 855 F.3d 615,
621 (4th Cir. 2017) (explaining courts “routinely take judicial notice of information contained on state and federal
government websites”). The R & R and Defendants’ motion to dismiss contain a thorough timeline of events with
citations to the record. See R & R at pp. 2–3, 11–14; ECF No. 44 at pp. 3–8.
On March 11 and 20, 2020, Plaintiff filed two petitions for a writ of habeas corpus (prior to
issuance of the North Carolina Governor’s extradition arrest warrant dated May 15, 2020), and on April
3, 2020, he filed a motion to dismiss the fugitive warrant. (These filings were unrelated to and did not
challenge the governor’s extradition arrest warrant because that warrant did not even exist yet.) In April
2020, the North Carolina courts dismissed the habeas petitions and denied the motion to dismiss.
Plaintiff also made several appearances in the Randolph County District Court and the Randolph
County Superior Court in March and April 2020.
On May 1, 2020, the Governor of South Carolina sent the Governor of North Carolina a demand
for Plaintiff’s extradition. On May 15, 2020, the North Carolina Governor issued a governor’s
extradition arrest warrant for Plaintiff’s arrest, detention, and delivery to Defendant Sheriff Phillip
Thompson of the Horry County Sheriff’s Office. On May 19, 2020, the North Carolina Department of
Justice sent the governor’s extradition arrest warrant to the Randolph County Sheriff’s Office.
On May 22, 2020, Plaintiff was served with the governor’s extradition arrest warrant and
arrested. On May 26, 2020, he was taken before the Randolph County District Court and informed of
his right to apply for a writ of habeas corpus and right to counsel; Plaintiff waived his right to counsel
but stated he would file a habeas petition. Also on May 26, the Randolph County District Attorney’s
Office emailed the Horry County Sheriff’s Office stating Plaintiff was ready to be picked up. Two days
later (May 28, 2020) Defendant Officers Tomkins and John Doe of the Horry County Sheriff’s Office
The Uniform Criminal Extradition Act permits a fugitive’s arrest before issuance of a governor’s extradition
arrest warrant: when another state has not made a formal demand (requisition) to the North Carolina Governor, the
accused may be arrested on a warrant issued by a North Carolina judge or magistrate (id. § 15A–733, –34) and may
be detained for thirty days (or admitted to bail) “as will enable the arrest of the accused to be made under a warrant
of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense” (id.
§ 15A–735, –36), and that period may be extended for an additional sixty days. Id. § 15A–737.
took custody of Plaintiff in North Carolina and transported him to South Carolina.4 Plaintiff alleges
Defendants Tomkins and Doe removed him from North Carolina over his protest and without allowing
him the time or ability to apply for a writ of habeas corpus in North Carolina state court pursuant to
N.C.G.S. § 15A–730.
In June 2020, Plaintiff filed the instant § 1983 action in state court seeking damages and alleging
Defendants failed to comply with N.C.G.S. § 15A–730 before transporting him to South Carolina.
Defendants removed the action to this Court in August 2020 and subsequently filed a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) and a motion seeking protection from discovery obligations pending
resolution of the motion to dismiss.
The Magistrate Judge recommends granting Defendants’ motion to dismiss because (1) Plaintiff
does not allege sufficient facts showing Defendant Thompson was personally involved in the extradition
or had supervisory liability for it, (2) Plaintiff fails to state a § 1983 claim concerning his extradition,
and (3) Defendants are entitled to qualified immunity. R & R at pp. 4–17. The Magistrate Judge also
recommends granting Defendants’ motion for a protective order. Id. at p. 17.
Initially, the Court notes Plaintiff does not specifically object to the Magistrate Judge’s
recommendation regarding Defendant Thompson’s lack of personal involvement or supervisory
liability. The Court discerns no clear error regarding this recommendation and will therefore dismiss
Defendant Thompson with prejudice.5 See Diamond & Camby, supra (recognizing a district court can
Plaintiff was sentenced to twelve years’ imprisonment on the burglary convictions and sent to state prison.
However, as mentioned in his objections and shown by the public appellate record on C-Track, the trial court granted
Plaintiff’s post-trial motions for a mistrial and a new trial on April 15, 2021 (after entry of the R & R).
See Carter v. Norfolk Cmty. Hosp. Ass’n, 761 F.2d 970, 974 (4th Cir. 1985) (“A district court’s dismissal
under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice.”).
adopt an unobjected-to recommendation without explanation where there is no clear error).
Plaintiff does, however, specifically object to the Magistrate Judge’s recommendation regarding
his § 1983 illegal extradition claim. See Pl.’s Objs. at pp. 9–12. “[A] damages claim for violation of
federally protected extradition rights may be asserted under § 1983.” Young, 413 F.3d at 419. “To state
a 42 U.S.C. § 1983 claim for illegal extradition, an individual must show that the violation of the state’s
extradition laws ‘caused the deprivation of rights protected by the Constitution and statutes of the
United States.’” Batten, 324 F.3d at 294 (brackets removed) (quoting Wirth, 562 F.2d at 322).
[Over] 100 years ago, in Roberts v. Reilly, 116 U.S. 80 (1885), the
Supreme Court recognized that individuals have a federal right to
challenge their extradition by writ of habeas corpus. Admittedly, the
scope of this habeas corpus challenge is narrow, however, the right to
the hearing is one secured by the Constitution and laws of the United
States. Any denial of this right gives rise to a cause of action under
42 U.S.C. § 1983; for Section 1983 protects all rights, privileges, or
immunities secured by the Constitution and laws of the United States.
Crumley v. Snead, 620 F.2d 481, 483 (5th Cir. 1980); see id. at n.9 (collecting cases including Wirth
that hold “failure to comply with extradition procedures is actionable under Section 1983”). Thus,
when state extradition law provides a fugitive the “right to test the legality of his arrest by petition for
a writ of habeas corpus,” denial of this right is “actionable under 42 U.S.C. § 1983.” Wirth, 562 F.2d
Here, Plaintiff claims Defendants Tomkins and Doe violated N.C.G.S. § 15A–730 by removing
him from North Carolina before he had the time or ability to file a habeas petition challenging the
governor’s extradition arrest warrant. Compl. at pp. 6–9; see also Pl.’s Objs. at pp. 10–12. Section
15A–730 (quoted in full above) provides that when an accused person is arrested on a governor’s
extradition arrest warrant, the person must be brought before a North Carolina judge; and if the person
states his “desire to test the legality of his arrest, the judge . . . shall fix a reasonable time to be allowed
him within which to apply for a writ of habeas corpus.”6 N.C.G.S. § 15A–730; see Payne v. Burns, 707
F.2d 1302, 1303 (11th Cir. 1983) (explaining this statutory language “is not directed to whether a
prisoner will elect to file or not file a petition but rather guarantees him time in which to apply for the
writ and holds his extradition in limbo during such time. It prevents an unseemly race to get the
prisoner to the state line while he is trying to get a petition filed.”).
Plaintiff alleges that after his May 22, 2020 arrest on the governor’s extradition arrest warrant,
he appeared in Randolph County District Court on May 26, 2020, and “stated he would file his writ of
habeas corpus.”7 Compl. at pp. 5–6. Plaintiff asserts Defendants Tomkins and Doe arrived at the
Randolph County Detention Center two days later (May 28, 2020), removed him from North Carolina,
and transported him to South Carolina “prematurely” over “Plaintiff’s protest” and “without allowing
[him] the time or ability to lawfully petition the Randolph County Superior Court for a writ of habeas
corpus.” Id. at pp. 6–8.
Accepting these factual allegations as true, as it must at this stage, the Court concludes
Plaintiff’s complaint plausibly states a § 1983 damages claim against Defendants Tomkins and Doe for
their alleged failure to comply with N.C.G.S. § 15A–730, which permitted Plaintiff to file a habeas
petition testing the legality of his arrest on the governor’s extradition arrest warrant. See Wirth, 562
F.2d at 322 (recognizing a viable § 1983 claim exists if state extradition law provides a fugitive the
Section 15A–730 allows a “reasonable time” to file a habeas petition but does not define “reasonable time.”
The record does not indicate whether the court “fix[ed] a reasonable time to be allowed him within which
to apply for a writ of habeas corpus” pursuant to § 15A–730. The Randolph County District Court issued an order
on May 26, 2020 (the date Plaintiff appeared in court) stating, “Governors Warrant Issued / Bond revoked / continue
to 6-9-20 for review to see if Deft picked up.” ECF No. 44-1 at p. 55. It is unclear on the current record—on a Rule
12(b)(6) motion to dismiss—the significance (if any) of the “6-9-20” date. Plaintiff argues he had until June 9, 2020,
to file a habeas petition testing the legality of his arrest on the governor’s extradition arrest warrant. ECF No. 54 at
p. 6. Defendants take a contrary view, arguing they were entitled to rely upon the North Carolina judicial officer’s
representations that the fugitive was ready to be transferred and that the asylum state’s extradition procedures had
been completed. ECF No. 44 at p. 17.
“right to test the legality of his arrest by petition for a writ of habeas corpus” and that right is denied);
see, e.g., Harden v. Pataki, 320 F.3d 1289, 1292–94 (11th Cir. 2003) (finding the plaintiff who alleged,
inter alia, that he “was denied the right to a pre-extradition habeas corpus hearing” and was extradited
“over his protests” “properly stated a § 1983 damages claim for failure to comply with both federal and
state extradition laws); Good v. Allain, 823 F.2d 64, 67 (5th Cir. 1987) (“If [the plaintiff] had been
denied the opportunity to challenge his removal from Mississippi [via a habeas petition], he might have
a viable § 1983 claim.”); Morrison v. Stepanski, 839 F. Supp. 1130, 1144 (M.D. Pa. 1993) (applying
Pennsylvania’s Uniform Criminal Extradition Act and finding state troopers “unlawfully deprived [the
plaintiff] of his federal right to challenge extradition by petitioning for habeas relief”); cf. Crumley, 620
F.2d at 482–83 (involving a § 1983 claim where the sheriff “delivered and surrendered plaintiff to
Tennessee authorities while plaintiff’s habeas corpus petition challenging the extradition was pending
in Alabama state court”).
The Magistrate Judge concludes “Plaintiff was unquestionably afforded all rights required under
section 15A–730” because that statute “allows Plaintiff only the ability to file a writ of habeas corpus
that would ‘test the legality of his arrest’ rather than the legitimacy of an extradition order,” and because
he “filed two petitions for writ of habeas corpus and a motion to dismiss the warrant for his fugitive
arrest.” R & R at p. 15. However, Plaintiff’s habeas petitions (filed in March 2020) and motion to
dismiss (filed in April 2020) did not challenge his arrest on the governor’s extradition arrest warrant,
nor could they have. When he made those filings,8 he had been arrested on a fugitive arrest warrant
Again, Plaintiff’s motion to dismiss challenged the fugitive arrest warrant. See ECF No. 44-1 at pp. 28–31.
His habeas petitions alleged denial of access to the courts, retaliatory acts and deliberate indifference by jail officials,
and unconstitutional conditions of confinement. See id. at pp. 14–27. Notably, his second habeas petition (filed
March 20, 2020) noted the absence of a demand by South Carolina for his extradition. See id. at pp. 23–24. In his
response in opposition to Defendants’ motion to dismiss, Plaintiff points out “these filings did not challenge
Plaintiff’s extradition or the governor’s warrant as the Plaintiff had not been served with it yet.” ECF No. 54 at p.
(issued by a magistrate under N.C.G.S. §§ 15A–733 and –734)—but not on a governor’s extradition
arrest warrant (issued and executed under §§ 15A–727 to –730).9 The record shows the South Carolina
Governor did not send a demand for Plaintiff’s extradition until May 1, 2020; the North Carolina
Governor did not issue the governor’s extradition arrest warrant until May 15, 2020; Plaintiff was not
arrested on that warrant until May 22, 2020; and Plaintiff was not taken to court after his arrest on the
governor’s warrant until May 26, 2020.
The events in May 2020 triggered Plaintiff’s right to “test the legality of his arrest” on the
governor’s extradition arrest warrant by “apply[ing] for a writ of habeas corpus” pursuant to
§ 15A–730. See Ortega v. City of Kansas City, 875 F.2d 1497, 1500 (10th Cir. 1989) (“Prior to
executive demand by the requesting jurisdiction, a criminal suspect does not have a constitutional right
that supports a claim under 42 U.S.C. § 1983.”). In sum, Plaintiff was extradited via the governor’s
warrant—not the fugitive warrant—and his May 2020 arrest on the governor’s warrant (not the March
2020 arrest on the fugitive warrant) is the factual predicate for his § 1983 claim. See generally Payne,
707 F.2d at 1303 (“A state prisoner sought to be extradited has a federal constitutional right to test the
validity of his extradition by filing a writ of habeas corpus.”). The Court respectfully disagrees with
the Magistrate Judge’s analysis.10
4. Relatedly, in his objections, Plaintiff states, “How could Plaintiff possibly file a writ of habeas corpus contesting
or questioning a governor’s warrant he hasn’t received or even been served [with] yet?” Pl.’s Objs. at p. 11.
Significantly, the provisions of the Uniform Criminal Extradition Act allowing arrest and detention on a
fugitive warrant contemplate a separate “arrest of the accused to be made under a warrant of the Governor.” See
N.C.G.S. §§ 15A–733 to –737.
Defendants contend a fugitive’s rights are violated “only if a fugitive is arrested and transported without any
extradition proceedings.” Defs.’ Reply at p. 7 (citing Young and Wirth). While the facts in Wirth involved an
extradition from Georgia to South Carolina without any extradition proceedings at all, the Fourth Circuit cited
Georgia’s version of the Uniform Criminal Extradition Act, specifically Ga. Code Ann. § 44–411 (later recodified
at Ga. Code Ann. § 17–13–30), which is the parallel version of N.C.G.S. § 15A–730. See 562 F.2d at 321–22.
Noting this Georgia statute provided a fugitive “a right to test the legality of his arrest [on a governor’s warrant] by
As for qualified immunity, Defendants contend Plaintiff fails to specifically object to the
Magistrate Judge’s recommendation regarding it. See Defs.’ Reply at pp. 2, 4–5. “[Q]ualified
immunity may be asserted by police officers in § 1983 actions claiming . . . transportation of the
plaintiff without complying with the extradition laws,” Street v. Cherba, 662 F.2d 1037, 1039 (4th Cir.
1981), and such immunity protects “state officials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
A qualified immunity defense can be presented in a Rule
12(b)(6) motion, but . . . when asserted at this early stage in the
proceedings, the defense faces a formidable hurdle and is usually not
successful. This is so because dismissal under Rule 12(b)(6) is
appropriate only if a plaintiff fails to state a claim that is plausible on
Owens v. Baltimore City State’s Att’ys Off., 767 F.3d 379, 396 (4th Cir. 2014) (internal quotation marks
and citation omitted). Although his objections do not use the precise phrase “qualified immunity,”
Plaintiff does argue (1) a violation of his extradition rights occurred and (2) he “had a right to file for
and be heard on a writ of habeas subsequent to being served a governor’s warrant, and before being
petition for a writ of habeas corpus,” the Fourth Circuit rejected “the argument that the violation of Georgia’s
extradition laws does not give rise to a § 1983 suit.” Id. at 322. The Wirth court broadly stated, “Where the violation
of state law causes the deprivation of rights protected by the Constitution and statutes of the United States, a cause
of action is stated under 42 U.S.C. § 1983. This court does not believe that law enforcement officials should simply
ignore the clear mandates of state and federal extradition laws in the apprehension and transportation of fugitives.”
Id. at 322–23 (internal citations and footnote omitted); see also Pierson v. Grant, 357 F. Supp. 397, 398–99 (N.D.
Iowa 1973) (approved by Wirth) (holding the plaintiff stated a § 1983 claim by alleging “defendants took him to
Missouri without complying with Iowa’s extradition statutes”). In Young, the Fourth Circuit repeated the sentence
from Wirth that “law enforcement officials [must follow] the clear mandates of state and federal extradition laws in
the apprehension and transportation of fugitives.” 413 F.3d at 419 (brackets in original) (quoting Wirth, 562 F.2d
at 323). Significantly, “there is ample circuit court authority for the proposition that failure to comply with the
provisions of the Uniform Extradition Act as enacted by the detaining state can support recovery on § 1983 claims.”
Ortega, 875 F.2d at 1500 (emphasis added) (collecting cases including Wirth).
Defendants also argue, “Plaintiff has never attempted to forecast any potentially viable basis on which he
could have challenged his extradition or the Governor’s warrant.” Defs.’ Reply at p. 8. However, Plaintiff asserts
the governor’s warrant does “not state Plaintiff had already been convicted, but rather falsely lead[s] one to believe
that the charges were still pending.” Pl.’s Objs. at p. 3.
extradited to South Carolina. Any other interpretation of N.C.G.S. 15A–730 is simply ludicrous and
suspect.” Pl.’s Objs. at pp. 9–12 (emphasis added). Liberally construed, Plaintiff’s objections
sufficiently address both prongs of the qualified immunity analysis. See Martin v. Duffy, 858 F.3d 239,
245 (4th Cir. 2017) (“[W]hen confronted with the objection of a pro se litigant, we must also be mindful
of our responsibility to construe pro se filings liberally.”). Regardless, the Court declines to adopt the
R & R’s qualified immunity analysis because it does not address whether the alleged extradition right
at issue—a fugitive’s right to file a habeas petition before being removed from the asylum state by the
demanding state’s officers—was “clearly established.”11 Defendants did not object to the Magistrate
Judge’s analysis. At bottom, qualified immunity is better left to be determined at the summary
For the foregoing reasons, the Court ADOPTS IN PART AND REJECTS IN PART the
Magistrate Judge’s R & R [ECF No. 56], GRANTS IN PART AND DENIES IN PART Defendants’
Defendants cite Young v. Collier, No. 6:03-cv-03640-JFA, 2006 WL 2706965 (D.S.C. Sept. 18, 2006),
aff’d, 252 F. App’x 575 (4th Cir. 2007). Defs.’ Reply at p. 5. Young, however, was decided on a motion for
summary judgment, and based on the summary judgment record, the district court concluded that the plaintiff “no
longer allege[d] that the underlying extradition proceedings were defective,” that the record established the
“defendants were acting pursuant to a facially valid extradition order” and had “no duty to inquire into the propriety
of the underlying extradition procedures,” and that the defendants were entitled to qualified immunity. 2006 WL
2706965 at *2–4. Defendants are free to reassert their qualified immunity defense and any other defenses/arguments
via a motion for summary judgment.
The Court notes that while qualified immunity may be an issue based on the meaning of the “6-9-20” date
in the North Carolina judicial officer’s order (as mentioned in Footnote 7 above), there is also an email dated May
26, 2020, sent from the Randolph County District Attorney’s Office to an employee of the Horry County Sheriff’s
Office stating Plaintiff “has been served with the Governor’s Warrant this morning, 5/26/20, and is ready to be picked
up.” ECF No. 44-2 at p. 5. Defendants mention this email in their motion to dismiss, see ECF No. 44 at pp. 2, 7,
14–15, but their reliance on it is somewhat unclear at this stage (which, again, involves a Rule 12(b)(6) motion to
dismiss). In any event, the email may provide a better argument for qualified immunity at the summary judgment
stage because, unlike the judicial order with the “6-9-20” date, the email is unambiguous. See McBride v. Soos, 679
F.2d 1223, 1227 (7th Cir. 1982) (“It is unreasonable to require the demanding state agents to be familiar with
the procedural safeguards enacted in the asylum state’s extradition statutes and then further require them
to ensure that the statutory safeguards have been followed.” (emphasis added)).
motion to dismiss [ECF No. 44], and DISMISSES Defendant Phillip Thompson with prejudice. The
Court DENIES Defendants’ motion for a protective order [ECF No. 45] without prejudice, as their
motion was tied to their request for dismissal. This case will proceed solely as to Plaintiff’s § 1983
illegal extradition claim for damages against Defendants Tomkins and Doe.
IT IS SO ORDERED.
Florence, South Carolina
June 3, 2021
s/ R. Bryan Harwell
R. Bryan Harwell
Chief United States District Judge
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