Pritchett v. Alford

Decision Date28 September 1992
Docket NumberNo. 91-1652,91-1652
Citation973 F.2d 307
PartiesRobert PRITCHETT; Ben Pritchett; Marietta Garage, Incorporated, Plaintiffs-Appellees, v. R.N. ALFORD, Individually and in his Official Capacity as Colonel in the South Carolina Highway Patrol; W.E. Williford, Individually and in his Official Capacity as Corporal in the South Carolina Highway Patrol; K.E. Payne, Individually and in his Official Capacity as Trooper First Class in the South Carolina Highway Patrol, Defendants-Appellants, and J.H. Lanier; Aaron Taylor; D.G. Kimbrell, in his Official Capacity as Colonel in the South Carolina Highway Patrol, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

W. Howard Boyd, Jr., Gibbes & Clarkson, Greenville, S.C., argued (Michael T. Smith, on brief), for defendants-appellants.

Thomas E. Maddox, Jr., Thomas E. Maddox, Jr., P.C., Atlanta, Ga., argued (William J. Sussman, North Augusta, S.C., on brief), for plaintiffs-appellees.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and OSTEEN, United States District Judge for the Middle District of North Carolina, sitting by designation.


PHILLIPS, Circuit Judge:

Officers of the South Carolina Highway Patrol appeal the district court's interlocutory order denying them summary judgment on qualified immunity grounds for claims brought against them under 42 U.S.C. § 1983. Robert Pritchett (Robert) claimed under Section 1983 that certain of the officers violated his Fourth and Fourteenth Amendment rights by arresting him without probable cause for allegedly violating South Carolina laws governing solicitation of towing business by wrecker companies. The Marietta Garage, Inc. (the Garage) and its owner, Ben Pritchett (Ben), claimed under Section 1983 that certain of the officers violated their right to procedural due process under the Fourteenth Amendment by summarily removing the Garage from a wrecker-referral list administered by the South Carolina Highway Patrol. Because we conclude that under the specific circumstances of this case Robert had a clearly established right under the Fourth Amendment not to be arrested, we affirm the district court's refusal to grant summary judgment for the officers on that issue. Because we also conclude that the right to procedural due process claimed by Ben was clearly established under the specific circumstances of this case, and that any reasonable officer should have been aware that summarily removing Ben's business from the state's list would violate that right, we also affirm the district court's rejection of the officers' defense of qualified immunity as to that claim.


The South Carolina Department of Highways and Public Transportation, exercising its statutory grant of power under S.C.Code Ann. § 56-5-6180 (Law.Co-op.1991), has promulgated regulations to ensure the orderly and fair conduct of wrecker companies operating within the state. South Carolina's wrecker regulations provide that any driver involved in an automobile accident who is not incapacitated or otherwise unavailable has a right to the wrecker service of his choice. When the driver is incapacitated, unavailable, or expresses no preference, the Highway Patrol officer on the scene must summon a wrecker service. S.C.Code Regs. § 63-600(A)(2) (1989). Each Highway Patrol district is required to establish zones within the district and prepare a list of available wrecker services from each zone. § 63-600(A)(8). The wrecker service to be called to a given accident is chosen from that list on a rotating basis. The rotating "wrecker list" in each zone must be "administered fairly and in a manner designed to ensure that all wrecker services on the list have an equal opportunity to the towing business arising from the rotation list." § 63-600(A)(10). Wreckers are to "respond" to accidents "only upon the request of the proper police authorities." § 63-600(A)(9). According to deposition testimony by Colonel Lanier, then the ranking officer of the South Carolina Highway Patrol, and by Captain Alford, the officer responsible for removing the Marietta Garage from the wrecker list, any wrecker company or person who establishes a wrecker business reasonably can expect to be placed on the list and remain on the list if they meet certain technical qualifications set out in the wrecker regulations.

The basic historical facts are not in dispute. On the evening of June 6, 1989, an automobile accident occurred in Marietta, South Carolina. The local volunteer fire department received a report that one of the vehicles was on fire and that an occupant was trapped. Robert, an employee of the Garage and a volunteer fireman, was dispatched by the fire department to the scene of the accident. He drove to the accident in a wrecker belonging to the Garage because, he asserted, his wife was using his car and no other vehicle was available.

The reported automobile fire turned out to be a false alarm. No one was trapped in a vehicle and there was only a small brushfire by the side of the road and a smoldering rag in the back of a pickup truck involved in the accident. Robert helped extinguish those fires.

Although the firemen arrived at the scene within minutes, the Highway Patrol, in the person of Trooper Payne, did not arrive until well over an hour after the accident. Payne was late in part because his supervisor, Corporal Williford, had summoned him to headquarters on the way to the accident and instructed Payne to notify him if Robert was at the accident scene with a wrecker. According to Williford, he had received complaints from other wrecker services that Robert had been violating the wrecker regulations by soliciting towing business when the Garage's name was not at the top of the wrecker list.

Immediately upon arriving at the accident scene, Payne launched into an investigation of Robert's presence, rather than the accident. 1 Fire Chief McMakin, who was in charge of the accident scene when Payne arrived, told Payne that Robert had used the wrecker for transportation only, and that Robert had remained at the accident scene under his orders. Further investigation by Payne revealed that Robert had made no attempt to solicit towing business at the scene, and that, in fact, two other wrecker services had been summoned for the purpose of removing the disabled vehicles. After consultation with Lieutenant Ellis, a superior officer who is not a defendant in this action, Payne told Robert to leave the scene, and Robert complied.

Corporal Williford then arrived at the accident scene. After being told that Robert had been present with a wrecker, but had not solicited business, Williford ordered Payne to summon Robert back to the scene and issue him a citation for violating Regulation R63-600A(9) of the wrecker regulations. Robert and Chief McMakin were summoned and the citation was issued. The citation was later nolle prossed.

While the citation against Robert was pending, defendant Captain Alford, then the Highway Patrol District Supervisor, suspended the Garage from the wrecker list for ninety days because its employee, Robert, allegedly had violated the wrecker regulations. The Garage and its owner, Ben Pritchett, received no notice before being removed from the list, and no pre-deprivation hearing. The regulation governing suspensions from the wrecker list gives the Highway Patrol District Supervisor total discretion to remove any company from the list, and does not provide for a hearing. See S.C.Code Regs. § 63-600(B) (1989).

At the end of the ninety day suspension period, on Alford's order, Corporal Kimbrell inspected the Garage to determine whether it complied with the wrecker regulations, and could be placed again on the wrecker list. After inspecting the premises and consulting by telephone with Alford, Kimbrell informed Ben that the storage fees charged by the Garage exceeded customary charges in the area, and as such were unreasonable and in violation of the wrecker regulations. See § 63-600(A)(15). The Garage was told to lower its storage fee or remain excluded from the list. The Garage refused to lower its fee and the suspension continued until some time before this action was brought. 2

Approximately two years before the events that gave rise to this lawsuit, Robert and Ben had provided information to a Highway Department internal investigation of a "kickback" scheme in which highway patrol officers allegedly solicited money from wrecker companies in exchange for calling them to the scene of accidents before their names appeared at the top of the rotating wrecker list. The record indicates that Payne and Williford, the two officers responsible for arresting Robert, were aware of Robert and Ben's participation in the investigation. Several officers were dismissed as a result of the investigation. Payne was implicated, but ultimately was exonerated. Robert and Ben have contended in this litigation that the officers' actions were in retaliation for their participation in the investigation.

Robert, Ben and the Garage brought this action under 42 U.S.C. § 1983 and state tort law against the various officers. In his § 1983 claim, Robert claimed arrest without probable cause in violation of the Fourth and Fourteenth Amendments. In theirs, Ben and the Garage claimed a denial of procedural due process in the removal of the Garage from the wrecker list. The affected officers moved for summary judgment as to each of the § 1983 claims on qualified immunity grounds. Robert, Ben and the Garage moved for "partial" summary judgment on their respective § 1983 claims 766 F.Supp. 442 (D.S.C.1991). 3

As to Robert's false arrest claim, the district court ruled as a matter of law that the arrest violated Robert's Fourth Amendment rights, and denied the officers' motion for summary judgment made on qualified immunity grounds. As to that defense, the court held that genuine issues of material fact made summary...

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