Garcia v. Brown, C/A No.: 3:19-1934-JMC-SVH

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtShiva V. Hodges United States Magistrate Judge
PartiesJerome Garcia, Plaintiff, v. Danny Brown and Addy Perez, in their individual capacities, Defendants.
Docket NumberC/A No.: 3:19-1934-JMC-SVH
Decision Date24 June 2020

Jerome Garcia, Plaintiff,
Danny Brown and Addy Perez,
in their individual capacities, Defendants.

C/A No.: 3:19-1934-JMC-SVH


June 24, 2020


Jerome Garcia ("Plaintiff"), proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983 against officer Danny Brown ("Brown") and Adelyn Perez ("Perez"), both in their individual capacities, (collectively, "Defendants"), alleging violation of his rights regarding a stop and search of his vehicle on December 16, 2017.

This matter is before the court on Defendants' motion for summary judgment [ECF No. 49]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) ["Roseboro order"], the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 50]. The motion having been fully briefed [ECF Nos. 55, 62], it is ripe for disposition. Also before the court is Defendants' motion to be excused from the mediation requirement. [ECF No. 58].

All pretrial proceedings in this case were referred to the undersigned

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pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). Because the summary judgment motion is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends granting Defendants' motion for summary judgment and denying Defendants' motion to be excused from the mediation requirement as moot.

I. Factual Background

Taking the facts in a light most favorable to Plaintiff,1 on December 16, 2017, at about 8:40 p.m., Brown, a deputy with the Richland County Sheriff's

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Department ("RCSD") was conducting a visibility patrol at a Walmart store ("Walmart") located at 10060 Two Notch Road in Richland County, South Carolina. [ECF No. 49-2 ¶¶ 9-12].2 Brown was accompanied by Perez, also a deputy. Id. ¶¶ 23-24. Defendants were members of the Community Action Team ("C.A.T.") program, the community-oriented policing unit with the RCSD. Id. ¶¶ 5, 6, 24.3

When Defendants arrived at the Walmart parking lot area, Brown observed a stationary Chevy sport utility vehicle ("SUV") at the far edge of the parking lot, "backed in" and isolated from other vehicles or foot traffic. Id. ¶¶ 13-14. As Brown drove toward the SUV, he saw movement in the driver's seat. Id. ¶ 15. Brown's patrol headlights shone on the SUV, and Brown observed an occupant in the driver's seat, appearing to sit up. Id. ¶ 16. Brown began to investigate the reason the SUV had been so distantly parked in the lot and whether his assistance was warranted. Id. ¶ 17. As Brown exited his vehicle, he observed the occupant reaching around inside the SUV "in a furtive manner." Id. ¶ 18.

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Next, Brown "approached and identified [him]self and could immedia[tely] smell marijuana coming from the vehicle." [ECF No. 49-3].4 Brown asked Plaintiff to step out of the vehicle. [ECF No. 49-2 ¶ 22].5 Brown conducted an outer clothing pat down of Plaintiff's person to ensure he did not have any weapons on him. Id. Perez began an interior search of his vehicle as a result of Defendants' belief that marijuana was located inside the car. Id. ¶ 23. During this time, Plaintiff was "very irate" and questioned the lawfulness of the officers' actions. Id. ¶ 25. Plaintiff stated that he had a medical marijuana card from California and that marijuana was not a crime. Id. Brown advised him that in South Carolina any possession of marijuana was illegal. Id. ¶ 26.

Plaintiff was informed of his Miranda rights. Id. Plaintiff repeatedly insisted that he was not doing anything illegal. Id. ¶ 27. Plaintiff also told

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Brown that he had recently received a citation a few days earlier for possession of marijuana from another RCSD deputy. Id. ¶ 27. Defendants located the previous citation in Plaintiff's wallet. Id.

Brown then conducted an interior search of the vehicle for marijuana or other illegal narcotics or any criminal activity. Id. ¶ 28. Plaintiff continued to become "increasingly irate" and was placed in handcuffs while Brown conducted a search. Id. ¶¶ 29-30. Perez talked with Plaintiff during this time, and Plaintiff appeared to calm down. Id. ¶ 31.

Brown's search of the vehicle revealed a baggie of marijuana, two pipes, and a grinder with marijuana located in the driver's seat area. Id. ¶ 32. He also located a purported medical marijuana identification card issued in California. [ECF No. 30 at 2, ECF No. 49-1 at 3].

Throughout the encounter, "Live PD" television employees were present. [ECF No. 49-2 ¶ 38]. According to Defendants, "[t]hese television personnel were in the area solely in a capacity to document the events and circumstances of our jobs as Sheriff's deputies." Id.

According to Defendants, because Plaintiff indicated he was in the Columbia area to visit his children, he was not arrested. Id. ¶ 33. He was cited for possession of marijuana and released. Id.6 Defendants thereafter

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transmitted the evidence for processing. Id. ¶ 34. On December 21, 2017, the plant material was tested, revealing marijuana weighing 2.617 grams. [ECF No. 49-2 ¶ 34, ECF No. 49-4 at 2].

According to Defendants, following this event, Body Worn Camera ("BWC") videos for Brown and Perez were not maintained on the RCSD BWC server, as body camera protocols were relatively new at the time of the 2017 incident, and "[u]nless a video was specifically categorized, titled or assigned a case number, the system did not save the video and thereafter deleted in ninety (90) days." [ECF No. 49-2 ¶ 35; ECF No. 49-5 at 2 (indicating footage was deleted on March 24, 2018)].7

II. Discussion

A. Standard on Summary Judgment

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 a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the

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initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the

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court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

B. Analysis

The court initially addresses the preliminary matter of the video footage taken the night of the incident in question, including the BWC videos and the Live PD videos.

Regarding the BWC videos, as stated above, Defendants represent this footage has been erased. Plaintiff makes multiple allegations concerning this footage in his opposition to Defendants' motion. [See ECF No. 55]. However, the court has previously addressed this issue, denying Plaintiff's motion to compel production of this footage "[b]ecause Plaintiff's discovery request was untimely and because the requested discovery was deleted." [ECF No. 56 at 2]. Although Plaintiff asserts this footage was "purposely destroyed," [ECF No. 55 at 1], there is no evidence in the record supporting Plaintiff's position.

Regarding the Live PD videos, both parties argue this footage supports their respective positions and should be considered by the court, notwithstanding the incomplete nature of the footage. [See, e.g., ECF No. 49-1 at 16 n.7 (Defendants stating "[t]his Court is urged to view these facts as they are depicted in the video footage, albeit unfortunately abridged in its present

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form"), ECF No. 55 at 7 (Plaintiff recognizing the video is "partial and misleading," but "[e]ven in this clip shows my stance of their infringement upon me")].8

However, the Live PD video footage has not been submitted to the court, only a website address. Neither party has addressed issues of authentication, nor indicated the Federal Rule of Evidence under which a website address may be considered by the court for purposes of resolving Defendants' motion for summary judgment. See Oglesby v. Brown, C/A No. 8:19-00016-SAL, 2020 WL 2936678, at *5 (D.S.C. June 3, 2020) (citing Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 535 (D. Md. 2007)) ("[T]o be entitled to consideration on summary judgment, the evidence supporting the facts set forth by the parties must be such as would be admissible in evidence"); Nestle Prepared Foods Co. v. Pocket Foods Corp., C/A No. A04-02533-MSK-MEH, 2006 WL 2990208, at *7 (D. Colo. Oct. 19, 2006) ("The only evidence submitted in support of this...

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