Zelarno v. Taylor

• Decision Date: 24 August 2011
• Docket Number: C.A. No. 7:09-cv-02860-JMC
• Citation: Zelarno v. Taylor, C.A. No. 7:09-cv-02860-JMC (D. S.C. Aug 24, 2011)
• Parties: Frances Louise Zelarno, Plaintiff, v. Sheriff David Taylor, Union County, James Owens and the City of Jonesville, Defendants.
• Court: U.S. District Court — District of South Carolina

Frances Louise Zelarno, Plaintiff,

v.Sheriff David Taylor, Union County,James Owens and the City of Jonesville, Defendants.

C.A. No. 7:09-cv-02860-JMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA SPARTANBURG DIVISION

Dated: August 24, 2011

ORDER AND OPINION

This matter is before the court on Defendant James Owens's Motion for Summary Judgment[Doc. 58].¹Based on the record before this court, Officer Owens's motion is granted in part and denied in part.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 20, 2009, Officer James Owens("Officer Owens"), a patrol officer employed by the Town of Jonesville Police Department, observed Britney Nicole Turner("Turner") driving her car, along with her passenger PlaintiffFrances Louise Zelarno("Plaintiff''), with one of its front headlights out and initiated a traffic stop.²[Doc. 48-2, at p. 19, ll. 14-16]; [Doc. 48-2, at p. 20, ll. 3-11]; [Doc. 48-3, at p. 8, ll. 1-12].Turner admitted that shehad been stopped on four prior consecutive days for driving without a headlight.[Doc. 48-2, at p. 15, ll. 15 - p. 17, l. 2]; [Doc. 48-4, at p. 20, l. 15 - p. 21, l. 2]; [Doc. 48-5, at p. 31, ll. 17-20].However, Turner did not fix her headlight, and it was still broken on May 20, 2009, when she and Plaintiff left her home.[Doc. 48-3, at p. 7, l. 16 - p. 8, l. 12].Turner admitted that she knew it was against the law to drive without a headlight and that she had no problem being stopped yet again.[Doc. 48-3, at p. 8, ll. 13-18]; [Doc. 48-3, at p. 9, ll. 6-8]; [Doc. 48-3, at p. 49, ll. 18-22].Just before pulling Turner over, Officer Owens observed Plaintiff throw a cigarette out of the car window.[Doc. 48-4, at p. 23, ll. 6-15].

Plaintiff and Turner admit that Officer Owens advised Turner that he smelled alcohol coming from the car.[Doc. 48-2, at p. 24, ll. 18-21]; [Doc. 48-4, at p. 24, ll. 15-18].Both Plaintiff and Turner admit that Turner consented to a search of her vehicle upon request by Officer Owens.[Doc. 48-2, at p. 24, ll. 18-21]; [Doc. 48-4, at p. 24, ll. 15-18].After consent, Officer Owens searched the vehicle and then used his police dog to sniff the vehicle for drugs.[Doc. 48-2, at p. 25, ll. 1-12]; [Doc. 48-3, at p. 18, ll. 2-24]; [Doc. 48-3, at p. 20, ll. 12-18]; [Doc. 48-4, at p. 26, ll. 1-24]; [Doc. 48-5, at p. 27, ll. 3-20].Plaintiff testified that Officer Owens showed Turner some marijuana stems and seeds he found in the car.[Doc. 48-4, at p. 29, l. 21 -p. 30, l. 22]; [Doc. 48-5, at p. 25, l. 14 - p. 26, l. 3].³

When Officer Owens called for back-up, a deputy employed by the Union County Sheriff's Office responded.[Doc. 48-2, at p. 26, ll. 16-19]; [Doc. 48-3, at p. 23, ll. 10-14]; [Doc.48-4, at p. 28, ll. 16-23].The officer assisted in a search of Turner's vehicle.[Doc. 48-2, at p. 26, ll. 21- 24]; [Doc. 48-4, at p. 28, ll. 20-23].Officer Owens, apparently believing that Plaintiff or Turner may have hidden drugs on their bodies, requested that a female officer come to the scene to conduct a search of Plaintiff and Turner.[Doc. 48-2, at p. 26, l. 25 - p. 27, l. 4]; [Doc. 48-4, at p. 29, ll. 4-20].

A female detention officer employed by the Union County Sheriff's office responded.[Doc. 48-2, at p. 27, l. 25 - p. 28, l. 9]; [Doc. 48-4, at p. 29, ll. 4-20].She took Plaintiff to the side of her patrol car away from the road and searched her in between the open passenger's side door and rear door.[Doc. 48-2, at p. 27, ll. 21-23]; [Doc. 48-2, at p. 29, ll. 9-23]; [Doc. 48-4, at p. 31, l. 2 - p. 32, l. 7].She conducted searches of Plaintiff by asking her to hold out and shake her bra, unhook her bra, pull down her panties, cough, squat, and bounce.[Doc. 48-2, at p. 27, l. 25 - p. 28, l. 8]; [Doc. 48-2, at p. 29, ll. 9-23]; [Doc. 48-3, at p. 24, l. 24 - p. 25, l. 12]; [Doc. 484, at p. 31, ll. 13- 24]; [Doc. 48-4, at p. 34, l. 16 - p. 35, l. 1].The record does not reveal nor does Plaintiff point to evidence that the male officers or other individuals could observe this search conducted behind the patrol car.Turner had been searched by the female officer in the same manner.[Doc. 48-2, at p. 36, ll. 17-22 - p. 37, ll. 18-24]; [Doc. 48-3, at p. 29, ll. 6-16]; [Doc. 484, at p. 37, l. 11 - p. 38, l. 15].No drugs were found.

Officer Owens gave Turner a warning for the headlight and gave Plaintiff a ticket for throwing a cigarette out of Turner's car.[Doc. 48-2, at p. 35, l. 22 - p. 36, l. 14]; [Doc. 48-4, at p. 41, ll. 14-18].When Turner's car would not start, Officer Owens assisted in jumpstarting her vehicle.Thereafter, Plaintiff and Turner left the scene.[Doc. 48-2, at p. 35, ll. 6-21]; [Doc. 48-4, at p. 41, l. 19 - p. 42, l. 12].

After the stop, Plaintiff and Turner went to a nearby convenience store.[Doc. 48-2, at p. 38, ll. 15-17]; [Doc. 48-2, at p. 40, ll. 1-18]; [Doc. 48-4, at p. 43, l. 12 - p. 44, l. 6].Thereafter, Officer Owens came to the store and approached Plaintiff and Turner with a half of a marijuana cigarette indicating that he had found it under his car after they left.[Doc. 48-2, at p. 40, l. 20 -p. 41, l. 14]; [Doc. 48-4, at p. 44, l. 11 - p. 45, l. 6].Plaintiff and Turner denied that the marijuana was theirs.[Doc. 48-2, at p. 41, ll. 18-23]; [Doc. 48-5, at p. 2, l. 6].

Plaintiff filed her Complaint[Doc. 1] on November 2, 2009.Officer Owens filed his Answer[Doc. 37] on February 10, 2010, and the instant Motion for Summary Judgment[Doc. 58] on September 29, 2010.

LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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).To prevail on a motion for summary judgment, the movant must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to judgment as a matter of law.In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party.SeeUnited States v. Diebold, Inc., 369 U.S. 654, 655(1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact.SeeCelotex Corp. v. Catrett, 477 U.S. 317, 323(1986).Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.Rather, the non-moving party must demonstrate that specific, material facts existwhich give rise to a genuine issue.Seeid at 324.Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion.SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 252(1986).Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion.SeeRoss v. Commc'ns Satellite Corp., 759 F.2d 355, 365(4th Cir.1985)."Only 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."Anderson, 477 U.S. at 248.

DISCUSSION

I. 42 U.S.C. § 1983

Plaintiffs case primarily rests on her claims under 42 U.S.C. § 1983, the federal provision permitting a civil action for the deprivation of federally guaranteed rights.Section 1983 allows a citizen, or other person within the jurisdiction of the United States, to bring suit against any person acting under the color of law, whether state or federal, for depriving her of rights secured by the United States Constitution.See42 U.S.C. § 1983.This includes police officers employed by municipalities.SeeMonell v. Dept. of Soc. Serv. Of City of N.Y., 436 U.S. 658(1978).To state a claim under section 1983, a plaintiff must allege 1) that a right secured by the constitution or laws of the United States has been violated, and 2) that the alleged violation was committed by a person acting under color of state law.SeeWest v. Atkins, 487 U.S. 42, 48(1988).

A.Constitutional Allegations

Plaintiff asserts Officer Owens caused her to be illegally strip searched in violation of her Fourth, Fifth, Sixth, Seventh, Eighth, Fourteenth, and Twenty-fourth Amendment rights of theUnited States Constitution.Given Plaintiff's focus on the strip searches, the right at issue here is that protected by the Fourth Amendment - the right to protection against unreasonable search and seizures.SeeU.S. Const. amend IV.The other Amendments(Fifth, Sixth, Seventh, Eighth, and Twenty-fourth) are irrelevant, inapplicable to the facts alleged, and should be disregarded; the court's analysis is directed to the Fourth Amendment.⁴

The Fourth Amendment prevents unreasonable searches of "persons, houses, papers, and effects."U.S. Const. amend. IV."The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State."Schmerber v. State of California, 384 U.S. 757, 767(1966).The Fourteenth Amendment essentially extends the federal right of due process, as provided in the Fourth Amendment, to state and local levels of government, and it is the vehicle through which the procedural and substantive requirements of due process are applied to state and local governments.SeeU.S. Const. Amend. XIV, § 2;see alsoHallinger v. Davis, 146 U.S. 314, 320(1893).

Under the Fourth Amendment, a law enforcement officer is generally required to have probable cause for conducting a search.SeeSafford Unified School District #1 v. Redding, 129 S. Ct. 2633, 2639(2009)."[P]robable cause exists where the facts and circumstances are sufficient to warrant a person of reasonable caution to...