Kenny v. Wilson
| Decision Date | 08 October 2021 |
| Docket Number | Civil Action No. 2:16-cv-2794-MBS |
| Citation | 566 F.Supp.3d 447 |
| Parties | KENNY, et al., Plaintiffs, v. WILSON, et al., Defendants. |
| Court | U.S. District Court — District of South Carolina |
Galen Leigh Sherwin, Pro Hac Vice, Sarah Ann Hinger, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Shirene Carole Hansotia, Susan King Dunn, David Allen Chaney, Jr., American Civil Liberties Union of SC Foundation, Charleston, SC, for Plaintiff Niya Kenny.
Galen Leigh Sherwin, Pro Hac Vice, Sarah Ann Hinger, Pro Hac Vice, Tiffani Joy Burgess, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Shirene Carole Hansotia, Susan King Dunn, American Civil Liberties Union of SC Foundation, Charleston, SC, David Allen Chaney, Jr., Chaney Legal Services, Greenville, SC, for Plaintiff Taurean Nesmith.
Galen Leigh Sherwin, Pro Hac Vice, Sarah Ann Hinger, Pro Hac Vice, Tiffani Joy Burgess, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Shirene Carole Hansotia, Susan King Dunn, David Allen Chaney, Jr., American Civil Liberties Union of SC Foundation, Charleston, SC, for Plaintiffs Carolina Youth Action Project, DS, SP.
James Emory Smith, Jr., SC Attorney General's Office, Columbia, SC, for Defendants Alan Wilson, Lance Crowe, M. Bryan Turner, A. Keith Morton, Michael D. Hanshaw.
Robin Lilley Jackson, Sandra Jane Senn, Senn Legal, Charleston, SC, for Defendants J. Alton Cannon, Jr., Luther T. Reynolds, Reginald L. Burgess.
Andrew F. Lindemann, Lindemann and Davis PA, Columbia, SC, for Defendant Carl Ritchie.
Robert David Garfield, Crowe LaFave LLC, Columbia, SC, for Defendant Leon Lott.
Dana Marie Thye, City of Columbia, Columbia, SC, for Defendant WH Holbrook.
Anne R. Culbreath, Willson Jones Carter and Baxley, Greenville, SC, for Defendant Johnny Mack Brown.
Michael Stuart Pitts, City of Greenville Office of the City Attorney, Logan McCombs Wells, City of Greenville, Greenville, SC, Robert P. Coler, City of Spartanburg, Spartanburg, SC, for Defendant Ken Miller.
Margaret B. Seymour, Senior United States District Judge This matter is before the court on the motion for summary judgment filed by Plaintiffs Niya Kenny; Taurean Nesmith; Girls Rock Charleston, Inc.; D.S., by and through her next of kin Juanita Ford; S.P., by and through her next of kin Melissa Downs, and D.D., by and through his next of kin, Temika Hemmingway (collectively, "Plaintiffs") on behalf of themselves and those similarly situated. ECF No. 216. Also before the court is the motion for summary judgment filed by Defendant Alan Wilson, in his official capacity as Attorney General of South Carolina, ("Defendant"). ECF No. 215.1
Plaintiffs Kenny, Nesmith, D.S., S.P., and D.D. are or were enrolled in the South Carolina public school system. Plaintiff Girls Rock Charleston, Inc. ("Girls Rock") is a nonprofit organization "whose members are directly impacted by and face ongoing risk of arrest or referral under S.C. Code § 16-17-420."2 ECF No. 157 at ¶ 10. Together, Plaintiffs asserted a challenge pursuant to 42 U.S.C. § 1983 that the Disturbing Schools Law, codified at S.C. Code Ann. § 16-17-420, is unconstitutional on its face and the Disorderly Conduct Law, codified at S.C. Code Ann. § 16-17-530, is unconstitutional as applied to children in public school grades K-12. Plaintiffs filed an amended complaint on May 16, 2019, at which time they sought: 1) a declaratory judgment stating that the Disturbing Schools and Disorderly Conduct Laws violate the Fourteenth Amendment; 2) a preliminary and permanent injunction enjoining Defendant from enforcing both statutes; and 3) an order enjoining Defendant from considering and/or retaining records of individuals prosecuted or charged under the Disturbing Schools and Disorderly Conduct Laws, "except as would be permissible following expungement ...." ECF No. 157 at 25-26.
Notably, the South Carolina Legislature amended the Disturbing Schools Law on May 17, 2018. ECF No. 132-1. The Disturbing Schools Law in its current form applies only to non-students. Plaintiffs concede that the amendment addresses their request "that this Court enjoin enforcement of S.C. Code § 16-17-420 ... and also resolve[s] the [enforcement] claims of Niya Kenny and Taurean Nesmith ...," but assert that "the legislative amendments did not address Plaintiffs’ request for relief from the retention of records related to ... the Disturbing Schools Law or Plaintiffs’ claims related to the Disorderly Conduct statute." ECF No. 167 at 3. In other words, Plaintiffs do not challenge the Disturbing Schools Law in its current form. However, they maintain the claim that the Disturbing Schools Law in its former iteration is unconstitutionally vague and, on that basis, they seek relief enjoining Defendant from considering and/or retaining records of individuals prosecuted or charged under the former Disturbing Schools Law. Plaintiffs’ claims and requested remedies are otherwise unchanged.
On February 19, 2019, Plaintiffs moved to amend their complaint to add D.D., a then-current South Carolina public school student charged under the Disturbing Schools Law, as a class representative. The court granted leave to amend, and Plaintiffs filed an amended complaint adding D.D. as a Plaintiff on May 16, 2019. ECF No. 157. The original complaint was otherwise unchanged.
This case was reassigned to the undersigned on April 6, 2018, following remand from the Fourth Circuit on the district court's order granting Defendant's motion to dismiss for lack of Article III standing. ECF No. 104. The district court had dismissed the complaint upon finding that Plaintiffs’ fear of future arrest and prosecution under the Disturbing Schools and Disorderly Conduct Laws did not rise above the level of speculation and therefore did not constitute an injury in fact. In vacating the district court's order of dismissal, the Fourth Circuit observed in relevant part:
at least some of the named plaintiffs do not rely on conjecture or speculation, but rather, on the fact that they attend school where they were previously arrested and criminally charged under the two South Carolina statutes, and they don't know which of their actions at school will be interpreted to violate the statutes in the future.
Kenny v. Wilson , 885 F.3d 280, 281 (4th Cir. 2018). The Circuit further observed that Plaintiffs "allege that the two laws chill their exercise of free expression, forcing them to refrain from exercising their constitutional rights or to do so at the risk of arrest and prosecution." Id. The Circuit held that with these allegations Plaintiffs sufficiently pleaded both a future and ongoing injury in fact and remanded the case for further proceedings. ECF No. 102. Defendant filed a renewed motion to dismiss, which the court denied in an order issued March 30, 2020. ECF No. 185.
On February 24, 2021, the court granted Plaintiffs’ motion to certify class and certified the following class with respect to Plaintiffs’ request for an injunction against enforcement of the Disorderly Conduct Law:
All elementary and secondary school students in South Carolina, each of whom faces a risk of arrest or juvenile referral under the broad and overly vague terms of S.C. Code § 16-17-530 while attending school ("Enforcement Class").
ECF No. 201. The court additionally certified two injunctive relief sub-classes for purposes of obtaining an injunction against retention of records under both S.C. Code § 16-17-420 and S.C. Code § 16-17-530, as follows:
The parties proceeded with discovery and, on July 23, 2021, filed cross motions for summary judgment. ECF Nos. 215, 216. The parties now agree that Plaintiffs Kenny and Nesmith, who proceed in this lawsuit as individuals, should be dismissed from the action.3 The parties completed the briefing of their summary judgment motions on September 1, 2021, see ECF Nos. 217-224, 226-227, 230-231, and the court heard oral argument by telephone on October 4, 2021.
Summary judgment should be granted "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." Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits "to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar , 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997) ). "When considering each individual motion, the court must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion." Id. (quoting Wightman v. Springfield Terminal Ry. Co. , 100 F.3d 228, 230 (1st Cir. 1996)) (internal quotation marks omitted).
The following facts are material to the disposition of the motions for summary judgment and are not disputed.
Plaintiff D.D. is an African American male who, in February 2019, was enrolled in the tenth grade at Conway High School in the Horry County School District. ECF No. 217 at 2. During the spring of 2017, he...
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