Johnson v. Quattlebaum et al

Filing 61

ORDER RULING ON REPORT AND RECOMMENDATION adopting 40 Report and Recommendation. Plaintiffs Motion for Preliminary Injunction 10 , Motion for Summary Judgment as to Count IV of the Complaint 21 , and Motion for Hearing 21 , are DENIED. Defendant Wilsons Motion to Dismiss 20 is GRANTED, and Count IV of the Complaint is thereby DISMISSED. Signed by Honorable Mary Geiger Lewis on 9/21/2015. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Krystal Johnson,

) Civil Action No. 8:14-3751-MGL
)
Plaintiff, )
)
v.
)
ORDER
)
Jesse Quattlebaum, Town of Saluda, Hon. Alan )
Wilson,
)
)
Defendants. )
_______________________________________
Plaintiff Krystal Johnson, (“Plaintiff”), brings the instant action pursuant to 42 U.S.C. § 1983
and South Carolina state law. (ECF No. 1). In accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2), D.S.C., this matter was referred to United States Magistrate Judge Jacquelyn
D. Austin for pre-trial handling.
On July 24, 2015, the Magistrate Judge issued a Report and Recommendation, (“the
Report”), (ECF No. 40), recommending that this Court: (1) deny Plaintiff’s Motion for Preliminary
Injunction, (ECF No. 10); (2) grant Defendant Wilson’s Motion to Dismiss, (ECF No. 20); and (3)
deny Plaintiff’s Motion for Summary Judgment as to Count IV of the Complaint, (ECF No. 21), as
well as Plaintiff’s Motion for Hearing. (ECF No. 21). Plaintiff filed an Objection to the Report on
August 10, 2015, (ECF No. 44), to which Defendants replied on August 27, 2015. (ECF Nos. 53
and 54). The matter is now ripe for review by this Court.
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the Court.
See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge 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 recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
In light of the standards set forth above, the Court has reviewed, de novo, the entire record
in this case, including, in particular, the Magistrate Judge’s Report and Plaintiff’s Objection. The
Court has considered each of Plaintiff’s objections or “assignments of error” regarding the Report
and finds that none of Plaintiff’s arguments effectively counter the reasoned conclusions of the
Magistrate Judge. The Court, like the Magistrate Judge, is not persuaded by Plaintiff’s argument that
City of Landrum v. Saratt, 572 S.E.2d 476 (S.C. App. 2002), cannot and does not provide an
authoritative statutory interpretation of S.C. Code Ann. § 16-17-530(b). The Court agrees with
Defendants that Plaintiff’s objection here is based upon a too narrow reading of Kolender v. Lawson,
461 U.S. 352 (1983), particularly in light of a side-by-side analysis of the United State Supreme
Court’s prior holding in Gooding v. Wilson, 405 U.S. 518 (1972). Nor does the Court find any merit
in Plaintiff’s claim that the South Carolina Court of Appeals’ analysis in Saratt is somehow
contradicted by the earlier South Carolina Supreme Court case of State v. Roper, 260 S.E.2d 705
(1979). It is apparent to this Court that the Roper court did not directly take up the constitutionality
of § 16-17-530(b) but simply held that, even assuming § 16-17-530(b) was unconstitutional, there
was still sufficient probable cause to arrest the particular criminal defendants whose convictions
were at issue in that case. Nor is the Court able to conclude, as Plaintiff urges in his Objection, that
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even if not unconstitutionally overbroad, § 16-17-530(b) is nonetheless void for vagueness. As the
Magistrate Judge correctly sets out in the Report, in order for the Court to reach such a conclusion,
Plaintiff would have to show that § 16-17-530(b) “is impermissibly vague in all of its applications.”
Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982). Plaintiff has not
met that high burden on this record. The Court cannot conclude that the term “profane language,”
as used in the statute, is unconstitutionally vague, as it has now been the law of South Carolina for
over a decade that the term refers more specifically to “fighting words.” Nor can the Court conclude,
for the reasons already pointed out by both the Magistrate Judge and by Defendants, that the term
“hearing distance” is impermissibly vague in all of its applications.
Based upon all of the forgoing, the Court concurs with the reasoning of the Magistrate Judge
and adopts the Report and incorporates it herein by reference, (ECF No. 40), overruling Plaintiff’s
Objection. (ECF No. 44). Plaintiff’s Motion for Preliminary Injunction, (ECF No. 10), Motion for
Summary Judgment as to Count IV of the Complaint, (ECF No. 21), and Motion for Hearing, (ECF
No. 21), are DENIED, Defendant Wilson’s Motion to Dismiss, (ECF No. 20), is GRANTED, and
Count IV of the Complaint is thereby DISMISSED.
Consistent with Plaintiff’s request, pursuant to Federal Rule of Civil Procedure 54(b), the
Court hereby directs entry of a partial final judgment as to Count IV of the Complaint so as to permit
Plaintiff to seek appellate review. The Court does not find, nor has any opposing party expressed,
a just reason for delay.
IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge

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September 21, 2015
Columbia, South Carolina

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