Richardson v. Union Pub. Safety Dep't Police

• Decision Date: 26 January 2022
• Docket Number: 7:10-cv-02679-JD-JDA
• Court: U.S. District Court — District of South Carolina
• Parties: Anthony D. Richardson, Delinda Ann Turner, Plaintiffs, v. Union Public Safety Department Police, Chief Sam White, Mickey Parker, Investigator Beatty, Captain Bailey, Defendants.

Anthony D. Richardson, Delinda Ann Turner, Plaintiffs,
v.
Union Public Safety Department Police, Chief Sam White, Mickey Parker, Investigator Beatty, Captain Bailey, Defendants.

No. 7:10-cv-02679-JD-JDA

United States District Court, D. South Carolina, Spartanburg Division

January 26, 2022

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendants' motion for summary judgment. [Doc. 316.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.

Plaintiffs filed this action pro se in the Union County Court of Common Pleas on September 15, 2010, concerning actions arising out of seizures relating to the sale of counterfeit CDs and DVDs. [Doc. 1-1.] Defendant Union Public Safety Department Police (“UPSD”) removed the action on October 15, 2010.^[1] [Doc. 1.] Plaintiffs filed an Amended Supplemental Complaint on October 21, 2010, naming as additional defendants UPSD officers Chief Sam White (“Chief White”), Investigator Beatty, Mickey Parker (“Investigator Parker”), and Captain Bailey. [Doc. 12.]

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On December 7, 2021, Defendants filed a motion for summary judgment. [Doc. 316.] The same day, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiffs of the summary judgment/dismissal procedure and the possible consequences if they failed to respond adequately. [Doc. 317.] Plaintiffs filed a response opposing the summary judgment motion on January 3, 2022. [Doc. 319.] The motion is now ripe for review.

BACKGROUND

Viewing the summary judgment record in the light most favorable to Plaintiffs, as is appropriate on consideration of Defendants' summary judgment motion, the undersigned gleans the following facts.

Plaintiffs operated a business known as Hakeem Records, which sold CDs and DVDs that they displayed on a fold-out table. [Doc. 316-2 ¶ 3.] The business was located in a parking lot Plaintiffs rented on South Pickney Street in the City of Union. [Id. ¶ 4.] The lot was in a high-crime area and, accordingly, patrol officers sometimes parked nearby to talk to each other, but mostly to deter crime. [Id.] During the summer of 2010, Plaintiffs contacted Union's mayor, complaining that the presence of the officers in the area was harming their business. [Id. ¶ 5.] The mayor then asked Chief White to speak to Richardson, and Chief White informed Richardson that he would instruct the officers not to park at or near the parking lot while Plaintiffs were operating their business. [Id.; Doc. 316-3 ¶ 4.] Chief White subsequently instructed the officers accordingly, and the officers followed his instructions. [Doc. 316-2 ¶ 5.]

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Beginning in approximately the summer of 2010, Chief White began to suspect Plaintiffs were selling counterfeit CDs and DVDs. [Id. ¶ 6.] He conveyed this concern to Captain Bailey, who, in turn, instructed Investigator Parker to send confidential informants to Plaintiffs' business to purchase items to determine whether Plaintiffs were in fact selling counterfeit merchandise. [Id.; Docs. 316-4 ¶¶ 4-5; 316-5 ¶ 4.]

On or about June 23, 2010, Investigator Parker and other officers met with two confidential informants. [Doc. 316-5 ¶ 5.] The informants were given an audio/video recorder and $20.00 and were sent to Hakeem Records, where they purchased five music CDs for $20.00. [Id.] When they returned, the evidence was recovered. [Id.] On or about June 24, 2010, a confidential informant met with Investigator Parker and other officers. [Id. ¶ 6.] The informant was again given $20.00 and sent to Hakeem Records, where the informant purchased five movie DVDs. [Id.] When the informant returned, the evidence was recovered. [Id.] On or about August 18, 2010, Investigator Parker and other officers again met with a confidential informant. [Id. ¶ 7.] The informant was provided an audio/video recorder and U.S. currency, which was used to purchase counterfeit DVD movies from Plaintiffs. [Id.] The informant then returned to the officer, and the evidence was recovered.^[2] [Id.]

After the items were purchased, Chief White asked an investigator from the Secretary of State for assistance. [Doc. 316-2 ¶ 8.] That investigator and a private

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investigator examined the items and informed the UPSD that they were counterfeit. [Id.] Specifically, the CDs were found to be copies of genuine CDs of recording artists, and the DVDs were found to be copies of genuine DVDs of movies, both of which indicated violations of copyright laws. [Id.]

Additional surveillance revealed that two other groups in the area were also selling counterfeit CDs and DVDs in the area. [Id. ¶ 10; Doc. 316-5 ¶ 10.] Chief White sought help from the South Carolina Law Enforcement Division (“SLED”) in addressing these crimes. [Doc. 316-2 ¶ 10.] On or about August 20, 2010, SLED arranged for a meeting among local law enforcement departments to set up a sting operation to seize the counterfeit merchandise that Plaintiffs and the two other groups were selling. [Id. ¶ 11; Docs. 316-3 ¶ 8; 316-4 ¶ 7; 316-5 ¶ 10.]^[3] SLED was in charge of the operation and directed the local law enforcement departments regarding which group to pursue and what to seize. [Docs. 316-2 ¶ 11; 316-3 ¶ 8; 316-4 ¶ 7; 316-5 ¶ 10.] Investigator Parker served as liaison between SLED and the UPSD officers who participated in the operation. [Docs. 316-2 ¶ 11; 316-3 ¶ 8; 316-4 ¶ 7; 316-5 ¶ 10.] During the meeting, SLED instructed First Sergeant Troy Wright (“First Sergeant Wright”) and Investigator Beatty to go to Plaintiffs' business and seize all counterfeit merchandise in plain view as well as all items being used in connection with the sale of the counterfeit merchandise. [Docs. 316-2 ¶ 12; 316-3 ¶ 9; 316-4 ¶ 7; 316-5 ¶ 11.] SLED informed First Sergeant Wright and Investigator Beatty that the perpetrators would not be arrested at the business but instead would be allowed to turn themselves in. [Docs. 316-2 ¶ 12; 316-3 ¶ 9; 316-4 ¶ 7; 316-5 ¶ 11.]

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First Sergeant Wright and Investigator Beatty arrived at Plaintiff's business on or about August 20, 2010, and observed that Plaintiffs were selling CDs and DVDs that were displayed openly on a fold-out table. [Doc. 316-3 ¶ 10.] They informed Plaintiffs they had come to seize all of the counterfeit merchandise and all items relating to the sale of the merchandise. [Id.] The officers proceeded to seize all of the DVDs and CDs as well as all items connected to the sale of the illegal merchandise. [Id.] These items included the table, a tent, a cooler, a sign, a table, and a chair. [Id.] Investigator Beatty instructed Plaintiffs to contact Investigator Parker the following Monday and turn themselves in. [Id.; Doc. 316-5 ¶ 12.] First Sergeant Wright and Investigator Beatty left Plaintiffs' business immediately after confiscating the counterfeit merchandise. [Doc. 316-3 ¶ 11.]

The same day, other officers went to the two other businesses that were selling counterfeit merchandise, one of which was operated by two African-American males and one of which was operated by one Caucasian male. [Docs. 316-2 ¶ 15; 316-5 ¶ 13.] No. search warrant was issued for the business operated by the Caucasian male because, similar to Plaintiff, he was selling his items in an open-air-type market and his items were in plain view. [Doc. 316-2 ¶ 15.] As the officers did with Plaintiffs, they seized the counterfeit merchandise and all items connected to the sale of the counterfeit merchandise from the other two businesses and allowed the operators of the businesses to turn themselves in. [Id.; Doc. 316-5 ¶ 13.] The operators of the other two businesses turned themselves in shortly thereafter, but Plaintiffs did not. [Docs. 316-2 ¶ 15; 316-5 ¶ 13.]

With Plaintiffs having not turned themselves in, SLED secured warrants for their arrests on or about August 23, 2010. [Docs. 316-5 ¶ 14; 316-6 ¶ 4.] Plaintiffs were served with the arrest warrants and were arrested on September 13, 2010. [Doc. 316-6 ¶ 4.] The

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arrest warrants charged Plaintiffs with three counts of distribution of illegal recordings. [Id.] At a preliminary hearing held on February 22, 2011, a magistrate judge determined there was probable cause for arrest on these charges and sent the case to the grand jury. [Id. ¶ 5.] On March 3, 2011, the case was presented to the grand jury, which returned indictments against Plaintiffs charging both Plaintiffs with three counts of distribution of illegal recordings and charging Richardson with one count of possession with intent to distribute illegal recordings. [Id. ¶ 6.] On December 5, 2011, Richardson pled guilty to all charges and received a sentence consisting of a fine and one year of probation. [Docs. 127; 316-7 ¶ 6; 316-8 at 2; 316-9 at 2; 316-10 at 2.] The charges against Turner were dismissed when Richardson pled guilty. [Doc. 316-7 ¶ 7.]

On December 16, 2011, Richardson's attorney filed a notice of appeal, but the South Carolina Court of Appeals dismissed the appeal on February 13, 2013, for failure to timely serve opposing counsel with the notice of appeal.^[4] See Richardson v. Warden, No. 8:21-cv-00899-JD (D.S.C. Mar. 29, 2021), Docs. 17-1 at 61; 17-4.^[5] On March 6, 2013,

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Richardson filed an application for post-conviction relief (“PCR”) in the Union County Court of Common Pleas. [21-899 Doc. 17-1 at 12-18.] On October 6, 2017, the Honorable Letitia Verdin entered an order denying his request for PCR relief and dismissing the PCR application with prejudice, but she granted him a belated appeal. [Id. at 62-67.] On January 20, 2021, the South Carolina Court of Appeals dismissed Richardson's appeal, and it issued a remittitur on February 10, 2021. [Id. Docs. 17-11...