Petition for Writ of Certiorari — Shannon Lancaster, Petitioner v. James Ruane

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6791

SHANNON LANCASTER, a/Ida Shannon Miles Lancaster,

Plaintiff Appellant,

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V.

JAMES RUANE, 0890,

Defendant Appellee.

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Appeal from the United States District Court for the District of South Carolinas at

Spartanburg. Timothy M. Cain, District Judge. (7:I7-cv-02302-TMC)

Submitted: October 23, 2018

Decided: October 26, 2018

Before NIEMEYER. KING, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Shannon Miles Lancaster, Appellant Pro Se. Stephanie Holmes Burton, GIBBES &

BURTON, LLC, Spartanburg, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Shannon Miles Lancaster appeals the district court's order accepting the

recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983

(2012) complaint.

We have reviewed the record and find no reversible error.

Accordingly, we affirm for the reasons stated by the district court. Lancaster v. Ruane,

No. 7:17-cv-02302-TMC (D.S.C. June 18, 2018). We dispense with oral argument

because the fads and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED

2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

SPARTANBURG DIVISION

Shannon Miles Lancaster,

Civil Action No. 7:17-CV-02302-TMC

Plaintiff,

V.

ORDER

James Roane,

Defendant.

Plaintiff, a prisoner proceeding pro se and in forma pauperis, filed this civil action

pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule

73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. On October

20, 2017, and October 26, 2017, Plaintiff filed two Motions to Amend his Complaint. (ECF Nos.

14, 15). The magistrate judge granted Plaintiff's Motions to Amend. (ECF No. 16). On

November 13, 2017, Defendant filed a Motion to Dismiss Plaintiff's Complaint. (ECF No. 21).

The court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cit. 1975),

advising Plaintiff of the potential consequences if he did not respond adequately to Defendant's

motion. (ECF No. 22). Plaintiff subsequently filed a third Motion to Amend his Complaint (ECF

No. 25) and filed a Response in Opposition to the Defendant's Motion to Dismiss (ECF No. 20).

Thereafter, Plaintiff filed a Motion for Summary Judgment. (ECF No. 34). The magistrate judge

granted Plaintiffs third Motion to Amend, noting that based on Plaintiffs amendments, the court

would "treat the Complaint as filed against Defendant only in his individual capacity." (ECF No.

36). Defendant then filed a Response in Opposition to the Motion for Summary Judgment (ECF

No. 38) and a Reply to Plaintiff's Response in Opposition of the Motion to Dismiss (ECF No.

40).

Before the court is the magistrate judge's Report and Recommendation ("Report") (ECF

No. 42), recommending that the court grant Defendant's Motion to Dismiss (ECF No. 21).

Plaintiff was advised of his right to file objections to the Report. (ECF No. 42-1). After the

Report had been mailed to Plaintiff, Plaintiff filed a fourth Motion to Amend his Complaint.'

(ECF No. 44). Plaintiff subsequently filed objections to the Report (ECF No. 45) and later

supplemented those objections (ECF No. 47). Defendant filed a Response in Opposition to the

Motion to Amend. (ECF No. 48). On May 7, 2018, Plaintiff filed a fifth Motion to Amend his

Complaint.2 (ECF No. 51). Defendant responded, opposing the amendments (ECF No. 56), and

Plaintiff replied to Defendant's response. (ECF No. 58). Finally, on May 10, 2018, Plaintiff filed

a Motion for Copies stating that he has lost his copy of the Complaint due to a "shakedown" of

the prison and needs another copy. (ECF No. 54).

The recommendations set forth in the Report have no presumptive weight, and this court

remains responsible for making a final determination in this matter. See Mathews v. Weber, 423

U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those

portions of the Report to which a specific objection is made, and the court may accept, reject,

modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter

with instructions. 28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review

when a party makes only "general and conclusory objections that do not direct the court to a

In his fourth Motion to Amend the Complaint, Plaintiff seeks to do the following: (I) withdraw the false arrest

claim; (2) add a claim alleging violation of the fourth amendment right to privacy; (3) amend the fourth amendment

violation of privacy claim with a violation of S.C. Code Ann. § 17-30-20 —145 claim, due to "unlawful audio and

video recordings, or unlawful wiretap." (ECF No. 44).

2

In his fifth Motion to Amend, Plaintiff seeks to add the same information provided in his previous Motion to

Amend (ECF No. 44) along with (1) adding a claim alleging violation of the Fourteenth Amendment for violation of

due process, and (2) adding a claim to subject Defendant to criminal prosecution for violating the South Carolina

Wiretap Act. (ECF No. 51).

2

specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson,

687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the

magistrate judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life &

Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

I. BACKGROUND

In his Complaint, Plaintiff alleges that on April 11, 2016, Defendant, a narcotics

investigator, along with an informant, contacted Plaintiff and asked him to get drugs for

Defendant and the informant. (ECF No. 1 at 4). Plaintiff asserts that Defendant and the informant

told Plaintiff that if he got them the drugs, they could get Plaintiff a job with their construction

business. Id Plaintiff claims that Defendant then met with Plaintiff and conducted a controlled

buy "without using the informant at the scene," by personally giving Plaintiff $650 in exchange

for drugs." Id. Plaintiff states that Defendant's actions were wrongful because "no one

authorized" Defendant to make the controlled buy. Id at 5.

Plaintiff further asserted that Defendant's actions amounted to a "4th Amendment

Violation by virtue of 14th Amendment." Id Plaintiff later clarified this, stating that Defendant

caused "a deprivation of the Plaintiffs 14th Amendment right of due process of law from which

flowed an illegal invasion of a constitutionally protected 4th Amendment right to privacy." (ECF

No. 28-1 at 3). In relation to the violation of due process, Plaintiff alleges that Defendant

violated South Carolina law, specifically South Carolina Code Sections 17-30-20 through 17-30145, in not obtaining authorization from the South Carolina Law Enforcement Division

("SLED"), the Attorney General, or a judge before conducting a controlled buy. (ECF No. I at

5). Plaintiff, therefore, asserts that he was "illegally arrested" on April 20, 2016." Id at 8.

3

Plaintiff notes that all charges based on the controlled buy were no/lc prossed on March 14,

2017. Id. at 12.

II. APPLICABLE LAW

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to state a

claim should not be granted unless it appears certain that the plaintiff can prove no set of facts

which would support his claim and entitle him to relief. Fed. R. Civ. P. 12(b)(6). When

considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and

should view the complaint in a light most favorable to the plaintiff" My/an Labs., Inc. v.

Malkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal

conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable

conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd Pchip, 213 F.3d 175, 180

(4th Cir. 2000). While "a plaintiff is not required to plead facts that constitute a prima facie case

in order to survive a motion to dismiss ....factual allegations must be enough to raise a right to

relief above the speculative level." Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th

Cir. 2010) (citations omitted).

Therefore, a plaintiffs complaint only needs to include "a short and plain statement of

the claim showing that [he] is entitled to relief" Fed. R. Civ. P. 8(a)(2). Additionally, when

"evaluating a civil rights complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6),"

the court must be "especially solicitous of the wrongs alleged." Harrison v. U.S. Postal Serv.,

840 F.2d 1149, 1152 (4th Cir. 1988) (internal citations omitted). Furthermore, when the plaintiff

proceeds pro se, the court is charged with liberally construing the factual allegations of the

complaint in order to allow potentially meritorious claims to go forward. See Erickson v. Pardus,

Plaintiff asserts that the only charges resulting from the controlled buy were included in indictment

2016A4210101490. (ECF No. I at 8).

551 U.S. 89, 94 (2007). Still, this requirement of liberal construction does not mean that this

court may ignore a clear failure in the pleading to allege facts that set forth a cognizable claim

for relief. Weller v. Dep'! of Soc. Servs, 901 F.2d 387, 391 (4th Cir. 1990).

III. DISCUSSION

The magistrate judge provided a thorough report that addressed the sufficiency of

Plaintiffs claims and recommended that this court grant the Defendant's Motion to Dismiss.

(ECF No. 42). Plaintiff filed timely objections to this Report, (ECF No. 45), and later

supplemented those objections, (ECF No. 47). The vast majority of Plaintiffs objections simply

restate his claims or object generally to the magistrate judge's determinations on issues of law

without providing a specific basis for why Plaintiff objects .4 However, the court does find that

Plaintiff has made the following specific objections to the Report: (1) that the magistrate judge

failed to address Plaintiffs claims for invasion of privacy and unreasonable search; (2) that the

magistrate judge erred in not ruling on Defendant's alleged violation of various policies when

determining whether or not Plaintiff alleged a sufficient claim for violation of due process under

the Fourteenth Amendment; (3) that the magistrate judge erred in ruling that Plaintiffs claims

were frivolous due to the claims hinging on a meritless false arrest claim; and (4) that the

As to the objections regarding Plaintiff's claims for false arrest and entrapment, Plaintiff simply objects to the

ultimate decision of the magistrate judge and, as a basis for his disagreement, cites facts already in the record, which

were considered and addressed by the magistrate judge. Furthermore, per Plaintiff's motions to amend (ECF Nos. 44

& SI), Plaintiff now seeks to withdraw his false arrest claim. Additionally, the magistrate judge correctly found that

entrapment is an affirmative defense that would have been raised at Plaintiff's criminal proceedings before the state,

and that entrapment, by itself,does not give rise to a constitutional violation under the Fourth Amendment. See U.S.

v. Russell, 411 U.S. 423, 430 (1973) (in a criminal context, stating that entrapment did not violate an "independent

constitutional right" of a defendant); Stevenson v. Bales, 986 F.2d 1429 (10th Cir. 1993) (dismissing § 1983 claim

brought on the basis of entrapment); Jones v. Bombeck, 375 F.2d 737 (3rd Cir. 1967) (determining that there was no

cause of action under the Civil Rights Act for entrapment); Poole v. Carteret Cnty. Sheriff's Dept., No. 5-10-CT3215-130, 2011 WL 10653675 at *2 (E.D.N.C. May 10, 2011) (stating that "entrapment is not a constitutional

violation which extends to civil cases"), affd, 458 Fed. App'x 232, 233 (4th Cir. 2011).

Plaintiff contends that the crux of his § 1983 claims are for unlawful wiretap and violation of rights of privacy, not

false arrest. (ECF No. 47 at 3).

5

magistrate judge erred in not addressing Plaintiffs request for production. These specific

objections are discussed below.

A. Invasion of Right of Privacy and Unreasonable Search

Plaintiff states that the magistrate judge did not rule on his Fourth Amendment claims for

an unreasonable search that invaded his right of privacy. (ECF No. 47 at 3). The magistrate judge

did discuss the Plaintiffs Fourth Amendment claims within the context of his claim for false

arrest. (ECF No. 42 at 9

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11). However, to the extent that Plaintiffs Complaint and objections

can also be liberally construed as asserting a claim for unreasonable search under the Fourth

Amendment regarding the audio and video recording of the controlled buy, which the magistrate

judge did not address, the court finds this claim to be without merit.

The Fourth Amendment protects individuals from unreasonable searches and seizures.

U.S. Const. amend. IV. However, as the Supreme Court has routinely held, "the application of

the Fourth Amendment depends on whether the person invoking its protection can claim a

'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by

government action." Smith v. Maryland, 442 U.S. 442 U.S. 735, 740 (1979). In answering this

question, the court must look at (1) whether the individual "exhibited an actual (subjective)

expectation of privacy" and (2) whether "the individual's subjective expectation of privacy is

'one that society is prepared to recognize as 'reasonable," or, in other words, whether the

individual's expectation was objectively "justifiable under the circumstances." Id.

The Supreme Court has specifically rejected the notion that "the Fourth Amendment

protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his

wrongdoing will not reveal it." Hoffa v. United Slates, 385 U.S. 293, 302-303 (1966). In Ho/Ta v.

United States, the court noted that "no interest legitimately protected by the Fourth Amendment"

was involved where the claimant invited the government official into his hotel room and the

conversation was either directed at or in the presence of the government official. Id. at 302. The

court stated that the claimant "was not relying on the security of [his] hotel room; he was relying

upon the misplaced confidence that [the official] would not reveal his wrongdoing." Id. As such,

the claimant had no reasonable expectation of privacy as to those communications. See id.

Furthermore, the Supreme Court has determined that where the law "gives no protection to the

wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him

when the same agent has recorded or transmitted the conversations" with the wrongdoer and

those conversations are "offered in evidence to prove the State's case." United States v. White,

401 U.S. 745, 752 (1971).

Here, Plaintiff arguably had a subjective expectation that his conversations with

Defendant and with the confidential informant were private conversations that were not being

recorded. However, this misplaced belief does not entitle him to a reasonable, justifiable

expectation of privacy as to those communications. Id Plaintiff voluntarily agreed to meet with

Defendant and the informant in order to exchange drugs. (ECF No. .1 at 7-8). While meeting, all

conversations and the exchange were within the presence of Defendant and the informant, both

of whom were working to reveal Plaintiffs wrongdoing. Id. Plaintiff's "misplaced confidence"

that Defendant and the informant would not record his actions do not amount to a reasonable

expectation of privacy. 6 Therefore, Plaintiffs claim for an unreasonable search under the Fourth

Amendment fails.

o Additionally, to the extent that Plaintiff is claiming a violation of either the state or federal acts regarding wiretaps,

found in S.C. Code Ann. § 17-30-10 ci seq. and 18 U.S.C. § 2510 ci seq., based on the same transactions or

occurrences of the controlled buy and arrest, these claims fail. Both the state and federal acts provide that that it is

lawful for "a person acting under color of law to intercept a wire, oral, or electronic communication, where such

person is a party to the communication or one of the parties to the communication has given prior consent" to the

interception. 18 U.S.C. § 2511 (2)(c); S.C. Code Ann. § 17-30-30(C). Here, Defendant was undoubtedly acting

"under color of law" during the commission of his undercover investigation. He was a party to the communications

VA

B. Violation of Due Process

Plaintiff further asserts that the magistrate judge erred in determining that he had not pled

sufficient factual basis to establish a claim for violation of due process under the Fourteenth

Amendment. The Fourteenth Amendment provides that no person shall be deprived "of life,

liberty, or property, without due process of law." U.S. Const. amend. XIV. The Supreme Court

has acknowledged that "there may be a substantive due process violation where 'the conduct of

law enforcement agents is so outrageous that due process principles would absolutely bar the

government from invoking judicial processes to obtain a conviction." Stokes v. Gann, 498 F.3d

483, 485 (5th Cir. 2007) (quoting United States v. Russell, 411 U.S. 423, 431-32 (1973)).

However, to establish a substantive due process violation, Plaintiff must demonstrate that

Defendant's "conduct was 'so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience." Manion v. North Carolina Med. Bc!., 693 Fed. App'x 178, 181 (4th

Cir. 2017) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998), abrogated on

other grounds, Saucier v. Katz, 533 U.S. 194 (2001)). Furthermore, any "conduct intended to

injure in some way [that is] unjustifiable by any government interest is the sort of official action

most likely to rise to the conscience-shocking level." Cty. of Sacramento, 523 U.S. at 849.

Here, the state undoubtedly has a significant interest in enforcing its drug trafficking laws

and getting drug dealers off the streets. To the extent that this claim for violation of due process

is based on Plaintiffs assertion that he was entrapped by Defendant, this claim fails. The court

offers no opinion as to whether or not Plaintiff was entrapped. However, even if Plaintiff was

entrapped, given the state's significant interest in enforcing its drug laws, the court finds that

that were recorded. While the court makes no finding as to whether or not the recording of the controlled buy was an

"interception" of "oral communications" under these provisions, as Plaintiff asserts, even if it was, Defendant's

actions were lawful.

8

setting up a controlled buy with the help of a confidential informant and recording that

transaction does not "shock the conscience." Plaintiff agreed to meet with Defendant and the

informant and exchanged drugs for money. (ECF No. 1 at 7-8). Therefore, even if Defendant

tricked Plaintiff into thinking Defendant was a legitimate buyer, Defendant's conduct cannot be

said to be "so brutal and so offensive to human dignity" that it "shocks the conscience." See

Stokes, 498 F.3d at 485 (holding there was no Fourteenth Amendment violation even though an

undercover government official entrapped plaintiff by persuading him to hunt for deer at night

using a spotlight and provided the transportation, gun, and weapon because plaintiff still

voluntarily broke the law). Furthermore, as discussed above, Plaintiff's claim for a Fourth

Amendment violation fails, so, to the extent that his claim for violation of the Fourteenth

Amendment stems from his claims for an unreasonable search based on the recording of the

controlled buy, this claim must also fail.

Frivolousness of Claims and Designation as a "Strike" Pursuant to 28 U.S.C. § 1915(g)

Plaintiff objects to the magistrate judge's recommendation that this case be counted as a

"strike" under 29 U.S.C. § 1915(g). (ECF No. 47 at 3). While the magistrate judge correctly

found that Plaitniff has been continuously warned about the lack of viability of a false arrest

claim when there is a valid grand jury indictment (ECF No. 42 at 12-13), in liberally construing

the complaint, the court does find that Plaintiff may have asserted additional claims beyond just

a claim for false arrest: While the court has liberally construed Plaintiffs complaint as asserting

these claims, Plaintiff has, nonetheless, failed to state a claim upon which relief can be granted,

and his action is subject to dismissal accordingly. However, the court declines to designate this

matter as a "strike."

Request for Production

Plaintiff further objects to the magistrate judge not addressing his requests for production

of evidence that Defendant had authorization to conduct the controlled buy. (ECF No. 47 at 4).

Plaintiff states that the request had been previously filed with the court and was dated October

27, 2017. Id The court has thoroughly reviewed the record, and the only request for production

that the court could find was the one attached to Plaintiffs objections, which were filed April 26,

2018. (ECF No. 47-1). Plaintiff, however, dated the request as being made on November 27,

2017. Id

Regardless of when the requests for production were filed, the magistrate judge did not

err in not addressing those requests at this stage in the litigation. Requests for production are a

discovery mechanism. At this time, Defendant has not answered the Complaint, and no discovery

has taken place. Furthermore, because the court is granting Defendant's Motion to Dismiss,

Plaintiff's request for production is now moot.

IV. Motions to Amend Plaintiffs Complaint

After the Report had been mailed to Plaintiff, Plaintiff filed two separate motions to

Amend his Complaint. (ECF Nos. 44 & 51). His fifth Motion to Amend, found at docket entry

51, encompasses all proposed amendments from docket entry 44 and adds additional proposed

amendments. As such, Plaintiffs fourth Motion to Amend (ECF No. 44), is denied as moot. In

regards to Plaintiffs fifth Motion to Amend, Defendant responded, opposing the amendments.

(ECF Nos. 56). Plaintiff replied to Defendant's responses. (ECF Nos. 58).

First, Plaintiff seeks to withdraw his false arrest claim. (ECF Nos. 51 at 1). Defendant has

previously stated that he does not object to the withdrawal of this claim. (ECF No. 52 at 4).

However, the court finds that the remaining proposed amendments do not cure the deficiencies

of Plaintiffs Complaint and would be futile. See Fed. R. Civ. P. 15; Johnson v. Oroweal Foods,

F

Co., 785 F.2d 503, 509 (4th Cit. 1986) ("leave to amend a pleading should be denied only when

the amendment would be prejudicial to the opposing party, there has been bad faith on the part of

the moving party, or the amendment would be futile"). First, Plaintiff seeks to amend his

Complaint to subject Defendant to criminal prosecution for breaking South Carolina law. (ECF

No. 51 at 2). However, Plaintiff has no authority to prosecute Defendant in a criminal context or

bring any criminal claims against Defendant within his § 1983 civil action. Finally, the remainder

of Plaintiffs proposed amendments include only reiterations of his prior claims

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which have

been discussed by both the magistrate judge and this court. Therefore, the court finds that none

of Plaintiffs proposed amendments would cure the deficiencies of Plaintiffs Complaint.

Accordingly, Plaintiffs Motion to Amend (ECF No. 51) is granted in part only to the extent that

it withdraws Plaintiffs claim for false arrest, and is denied in part as to all other proposed

amendments.

V. CONCLUSION

For the reasons stated above, Plaintiffs fifth Motion to Amend (ECF No. 51) is

GRANTED IN PART to the extent that Plaintiff wishes to withdraw his claim for false arrest

and DENIED IN PART as to all other proposed amendments because they would not cure the

deficiencies of the Complaint. Furthermore, because Plaintiffs fifth Motion to Amend (ECF No.

51) encompassed all proposed amendments in his fourth Motion to Amend, Plaintiffs fourth

Motion to Amend (ECF No. 44) is DENIED AS MOOT.

Additionally, after a thorough review of the Report and the entire record in this case in

accordance with the standard set forth above, the court adopts the magistrate judge's Report

(ECF No. 42) to the extent that it is consistent with this Order and incorporates it herein. As

such, Defendant's Motion to Dismiss (ECF No. 21) is GRANTED. Furthermore, because this

order is dispositive of the lawsuit as a whole, the Plaintiffs Motion for Summary Judgment

(ECF No. 34) is DENIED AS MOOT. Accordingly, this case is DISMISSED.

IT IS SO ORDERED.

s/ Timothy M. Cain

United States District Judge

June 18, 2018

Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4

of the Federal Rules of Appellate Procedure.

12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

SPARTANBURG DIVISION

Shannon Lancaster,

Case No. 7:17-cv-02302-TMC-JDA

Plaintiff,

V.

REPORT AND RECOMMENDATION

OF MAGISTRATE JUDGE

James Ruane,

Defendant.

This matter is before the Court on Defendant's motion to dismiss [Doc. 21] and

Plaintiffs motion for summary judgment [Doc. 34]. 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 this case and to submit findings and recommendations to

the District Court.

Plaintiff, proceeding pro se, filed this action on August 24, 2017,1 alleging violations

of his constitutional rights pursuant to 42 U.S.C. § 1983. [Doc. 1.] On October 31, 2017,

the Court granted two motions to amend the Complaint and directed the Clerk to file the

documents as attachments to the Complaint. [Doc. 16.] On November 13, 2017,

Defendant filed a motion to dismiss Plaintiffs Complaint. [Doc. 21.] The next day, the

Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.

1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible

consequences if he failed to adequately respond to the motion. [Doc. 22.] Plaintiff filed a

A prisoner's pleading is considered filed at the moment it is delivered to prison

authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988).

Accordingly, this action was filed on August 24, 2017. [Doc. 1-1 at 1 (envelope stamped

as received by prison mailroom on August 24, 2017.]

1

response in opposition to the motion to dismiss on December 7, 2017. [Doc. 28.1 On

December 27, 2017, Plaintiff's motion for summary judgment was entered on the docket.

[Doc. 34.] Defendant filed a response in opposition to the motion for summary judgment

[Doc. 38], and Plaintiff filed a reply [Doc. 40]. Additionally, on January 3, 2018, the Court

granted a third motion to amend the Complaint stating it would treat the Complaint as filed

against Defendant only in his individual capacity .2 [Doc. 36.] The motions are now ripe for

review.

BACKGROUND

Plaintiff alleges that on April 11, 2016, he was contacted by a criminal informant

named David Brent Goode ("Goode") and Defendant, James Ruane, a narcotics

investigator. [Doc. 1 at 4.] Plaintiff contends that they told Plaintiff that if Plaintiff could help

Goode and Defendant find drugs that he could get a job with them at their construction

business remodeling houses. [Id.] Plaintiff alleges that on April 11, 2016, he exchanged

$650.00 with Defendant as part of an illegal controlled buy. [Id. at 4-6.] Plaintiff contends

2The Court granted Plaintiff's third motion to amend after the pending motion to

dismiss was filed. Although "an amended pleading ordinarily supersedes the original and

renders it of no legal effect," Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir.

2001), "if some defects raised in the original motion remain in the amended pleading, the

Court simply may consider the motion as being addressed to the amended pleading

[because to] hold otherwise would be to exalt "form over substance." 6 Charles Alan Wright

et aL, Federal Practice and Procedure § 1476 (3d ed. 2011). In this case, the Plaintiff

amended the Complaint only to clarify that he is seeking recovery from Defendant in his

individual capacity. [Docs. 25, 36.] The pending motion to dismiss argues that Plaintiff has

failed to allege the necessary facts to support a claim for relief. Plaintiff's clarification as

to his claims does not affect the deficiencies alleged by Defendant. Thus, the Court

considers the motion as addressed to the Complaint as amended.

3The facts included in this Background section are taken directly from Plaintiff's

Complaint and the amendments to the Complaint. [Docs 1, 1-2, 1-3.]

2

that he only participated in the controlled buy in order to help his future boss and in

exchange for a job. [Id. at 7.1 He alleges that Defendant's actions during the controlled buy

were improper because Defendant was not authorized to make the controlled buy. [Id. at

4-6.] Plaintiff also contends that Defendant's actions were entrapment as Defendant

convinced Plaintiff to find him drugs. [Id. at 7.] Plaintiff alleges that Defendant's actions

violated South Carolina Law Enforcement Division ("SLED") protocol set out in S.C. Code

§ 17-30-70 and SLED Policy 13.30 when he completed the controlled buy with Plaintiff on

April 11, 2016, as it took place outside of the supervision of a SLED agent and did not use

a criminal informant. [Id. at 5-6; Doc. 1-2 at 1.1 Plaintiff also alleges that Defendant's

actions were a violation of the Interception of Wire, Electronic, or Oral Communications Act.

[Doc. 1-3 at 1.] Plaintiff alleges violations of his Fourth and Fourteenth Amendment rights

and a breach of proper procedure because Defendant caused him to be illegally arrested

for an illegal charge and Defendant's actions caused Plaintiff to suffer emotional distress

and wrongful incarceration. [Doc. 1 at 8; Doc. 1-3 at 1.] Additionally, Plaintiff contends that

the charges from the controlled buy with Defendant, bearing warrant number

2016A4210101490, were nolle prossed on March 14, 2017. [Doc. 1 at 12.] In the instant

matter, Plaintiff seeks to recover $650,000 in damages from Defendant for the violation of

his constitutional rights, entrapment, emotional distress, incarceration time, and

Defendant's intentional wrongful act. [Id. at 8.]

91

APPLICABLE LAW

Liberal Construction of Pro Se Complaint

Plaintiff brought this action pro se, which requires the Court to liberally construe his

pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519,

520 (1972); Loe v. Arm/stead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574

F.2d 1147, 1151 (4th Cir. 1978). Prose pleadings are held to a less stringent standard

than those drafted by attorneys.

Haines, 404 U.S. at 520. The mandated liberal

construction means only that if the Court can reasonably read the pleadings to state a valid

claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d

1128, 1133 (10th Cir. 1999). A court may not construct the plaintiffs legal arguments for

him. Small v. End/cot!, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure

up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274,

1278 (4th Cir. 1985).

Requirements for a Cause of Action Under § 1983

This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of

action for constitutional violations by persons acting under color of state law. Section 1983

"'is not itself a source of substantive rights,' but merely provides 'a method for vindicating

federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting

Baker v. McCo/lan, 443 U.S. 137, 144 n.3(1979)). Accordingly, a civil action under § 1983

allows "a party who has been deprived of a federal right under the color of state law to seek

relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).

Section 1983 provides, in relevant part,

-I

Every person who; under color of any statute, ordinance,

subjects, or

regulation, custom, or usage, of any State

causes to be subjected, any citizen of the United States or any

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress

.

.

.

42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements:

(1) that the defendant "deprived [the plaintiff] of a right secured by the Constitution and laws

of the United States" and (2) that the defendant "deprived [the plaintiff] of this constitutional

right under color of [State] statute, ordinance, regulation, custom, or usage." Mentavlos v.

Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and

internal quotation marks omitted).

The under-color-of-state-law element, which is equivalent to the "state action"

requirement under the Fourteenth Amendment,

reflects judicial recognition of the fact that most rights secured

by the Constitution are protected only against infringement by

governments. This fundamental limitation on the scope of

constitutional guarantees preserves an area of individual

freedom by limiting the reach of federal law and avoids

imposing on the State, its agencies or officials, responsibility

for conduct for which they cannot fairly be blamed.

Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658

(4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, "the deed

of an ostensibly private organization or individual" may at times be treated "as if a State has

caused it to be performed." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531

U.S. 288, 295 (2001). Specifically, "state action may be found if, though only if, there is

such a 'close nexus between the State and the challenged action' that seemingly private

behavior 'may be fairly treated as that of the State itself." Id. (quoting Jackson v. Metro.

Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional

deprivation "caused by the exercise of some right or privilege created by the State or by a

rule of conduct imposed by the State.

.

.

or by a person for whom the State is responsible"

and that 'the party charged with the deprivation [is] a person who may fairly be said to be

a state actor." Luger v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination

of whether a private party's allegedly unconstitutional conduct is fairly attributable to the

State requires the court to "begin[] by identifying 'the specific conduct of which the plaintiff

complains." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v.

Yaretsky, 457 U.S. 991, 1004 (1982)).

Motion to Dismiss Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be

dismissed if it fails to state a claim upon which relief can be granted. When considering a

motion to dismiss, the court should "accept as true all well-pleaded allegations and should

view the complaint in a light most favorable to the plaintiff." My/an Labs., Inc. v. Matkari,

7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal

conclusions drawn from the facts" nor "accept as true unwarranted inferences,

unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd.

P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion,

a court may rely on only the complaint's allegations and those documents attached as

exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762

F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not

excluded by the court, the motion is treated as one for summary judgment under Rule 56

of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).

With respect to well-pleaded allegations, the United States Supreme Court explained

the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twomb/y:

Federal Rule of Civil Procedure 8(a)(2) requires only "a short

and plain statement of the claim showing that the pleader is

entitled to relief," in order to "give the defendant fair notice of

claim is and the grounds upon which it rests."

what the

While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a plaintiffs

obligation to provide the "grounds" of his "entitle[ment] to relief'

requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.

Factual allegations must be enough to raise a right to relief

above the speculative level on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).

.

.

.

550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he

pleading must contain something more

.

.

.

than a bare averment that the pleader wants

compensation and is entitled to it or a statement of facts that merely creates a suspicion

that the pleader might have a legally cognizable right of action.").

"A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged." Ashcroft v. /qbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than

a sheer possibility that a defendant has acted unlawfully." Id. (citing Twomb/y, 550 U.S. at

556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the

pleader must plead sufficient facts to show he is entitled to relief, not merely facts

consistent with the defendant's liability. 'Twomb/y, 550 U.S. at 557 (quoting Fed. R. Civ.

P. 8(a)(2)); see also /qbal, 556 U.S. at 678 ("Where a complaint pleads facts that are

7

'merely consistent with' a defendant's liability, it 'stops short of the line between possibility

and plausibility of "entitlement to relief." (quoting Twombly, 550 U.S. at 557)). Accordingly,

the plausibility standard requires a plaintiff to articulate facts that, when accepted as true,

demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is

entitled to relief. Francis v. Giacomelb, 588 F.3d 186, 193 (4th Cir. 2009) (quoting IqbaI,

556 U.S. at 678).

DISCUSSION

Defendant argues: (1) Plaintiffs claims against Defendant in his official capacity are

barred by the Eleventh Amendment [Doc. 21-1 at 3-4]; (2) Plaintiffs claims are barred by

Heck [id. at 4-5]; (3) Plaintiff has failed to state a claim for relief under § 1983 because a

grand jury indicted Plaintiff on the charges underlying his false arrest claim [id. at 6-7]; (4)

entrapment does not provide the basis for a § 1983 action [Id. at 7]; and (5) there is no

factual basis for Plaintiffs Fourteenth Amendment violation claim [Id. at 7-8] .4 Additionally,

4 A an initial matter, Plaintiff has amended his Complaint to indicate that Plaintiff is

suing Defendant only in his individual capacity. [Docs. 25, 36.] As such, the undersigned

finds Defendant's Eleventh Amendment immunity argument moot. Additionally, Defendant

argues that Plaintiffs claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). [Doc.

21-1 at 4-5.] In Heck, the Supreme Court held:

[l]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by

actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into

question by a federal court's issuance of a writ of habeas

corpus, 28 U.S.C. § 2254. A claim for damages bearing that

relationship to a conviction or sentence that has not been so

invalidated is not cognizable under § 1983. Thus, when a state

prisoner seeks damages in a § 1983 suit, the district court must

.

D

Defendant requests the instant matter be dismissed and designated as a strike pursuant

to 28 U.S.C. § 1915(g). [Id. at 8-9.] The Court will address each claim in turn.

False Arrest Claim

Section 1983 actions premised on malicious prosecution, false arrest, and/or false

imprisonment are analyzed as actions claiming unreasonable seizures in violation of the

Fourth Amendment. See, e. g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002)

(recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the

officer decided to arrest him without probable cause to establish an unreasonable seizure

under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001)

(stating claims of false arrest and false imprisonment "are essentially claims alleging a

seizure of the person in violation of the Fourth Amendment"); Lambert v. Williams, 223 F.3d

257, 262 (4th Cir. 2000) ("[T]here is no such thing as a

claim. What we termed a 'malicious prosecution' claim

.

1983 malicious prosecution'

'

.

.

is simply a claim founded on

a Fourth Amendment seizure that incorporates elements of the analogous common law tort

of malicious prosecution-specifically, the requirement that the prior proceeding terminate

consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence; if

it would, the complaint must be dismissed unless the plaintiff

can demonstrate that the conviction or sentence has already

been invalidated.

512 U.S. at 486-87 (footnotes omitted). This is known as the "favorable termination"

requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). Though Plaintiff

asserts that the complained of charge, bearing warrant number 2016A4210101490, was

nolle prossed on March 14, 2017, at this time the undersigned cannot determine whether

Plaintiff actually received a truly 'favorable termination" when the above charge was nolle

prossed. Accordingly, out of an abundance of caution, the undersigned will address the

merits of Plaintiffs claims.

favorably to the plaintiff'). "The Fourth Amendment is not violated by an arrest based on

probable cause." Graham v. Connor, 490 U.S. 386, 396 (1989).

Under § 1983, "a public official cannot be charged with false arrest when he arrests

a defendant pursuant to a facially valid warrant." Porterfield v. Lott, 156 F.3d 563, 568 (4th

Cir, 1998) ("[A] claim for false arrest may be considered only when no arrest warrant has

been obtained."); see also Brooks v. City of Winston-Salem, 85 F.3d 178, 181-82 (4th Cir.

1996) (determining that when the arresting official makes the arrest with a facially valid

warrant, it is not false arrest). Moreover, "an indictment, 'fair upon its face,' returned by a

'properly constituted grand jury,' conclusively determines the existence of probable cause."

Durham v. Homer, 690 F.3d 183, 189 (4th Cir. 2012) (quoting Gerstein v. Pugh, 420 U.S.

103, 117 n.1 9 (1975)); see also Provet v. S. C., C.A. No. 6:07-1 094-GRA-WMC, 2007 WL

1847849, at 5 (D.S.C. June 25, 2007) (§ 1983 claims of false arrest and malicious

prosecution were precluded because of indictment). This Court takes judicial notice that

a grand jury indicted Plaintiff on September 30, 2016, for the state drug charge complained

of in the present action. [Doc. 21-2 at 9-10]; see also Philips v. Pitt Cty. Mem. Hosp., 572

F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public

record"); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that

'the most frequent use of judicial notice is in noticing the content of court records.")

Additionally, Plaintiff admits that his charges were indicted by a grand jury.' [Doc. 28 at 1.]

51n his response in opposition, Plaintiff appears to suggest that Defendant's wrongful

act—engaging in the illegal controlled buy—"tainted" the grand jury indictment because

without the taint of the illegal action "there would have been a lack of probable cause."

[Doc. 28-1 at 2.] Plaintiffs argument, however, does not negate the probable cause

established by the indictment. See United States v. Brewer, 1 F.3d 1430, 1433 (4th Cir.

1993) (finding that a police officer's perjury was insufficient to create doubt as to the grand

10

The indictments act as a barto Plaintiff s false arrest allegations. Thus, Defendant's motion

should be granted with respect to Plaintiff's claim for false arrest.

Entrapment Claim

Plaintiff also contends that Defendant's behavior violated Plaintiffs constitutional

rights because he was entrapped. [Doc. 1 at 4.] The United States Supreme Court, in the

criminal context, ruled that a criminal defendant's constitutional rights were not violated

because he was entrapped. See United States v. Russell, 411 U.S. 423, 430 (1973)

(finding that the government's conduct—entrapment--did not violate an independent

constitutional right of the defendant). Several circuit courts have adopted the Supreme

Court's analysis in the civil context, finding that entrapment is not a constitutional violation.

See e.g., Stokes v. Gann, 498 F.3d 483, 485 (5th Cir. 2007) (collecting cases).

Accordingly, even if Plaintiff could prove he was entrapped, entrapment in and of itself does

not constitute a violation of a constitutional right; thus, Plaintiffs entrapment claim should

be dismissed.

Fourteenth Amendment Claim

Plaintiff alleges that Defendant violated his Fourth Amendment rights "by virtue of'

the Fourteenth Amendment. [Doc. 1-3 at 1.] To the extent Plaintiff alleges a due process

violation, this claim is without merit.' While the "liberal pleading requirements" of Rule 8(a)

jury's decision to indict); see also Costello v. United States, 350 U.S. 359, 363 (1956)

(finding that a defendant may not challenge an indictment on the ground that it was not

supported by adequate or competent evidence). As such, the undersigned finds Plaintiffs

argument unpersuasive with respect to his false arrest claim.

Plaintiffs Fourteenth Amendment claim appears to hinge on his false arrest claim.

As the undersigned recommends dismissal of Plaintiff's false arrest claim, Plaintiff's due

process claim, to the extent it relies upon the false arrest claim, should be dismissed as

well.

6

11

require only a 'short and plain" statement of the claim, the plaintiff must "offer more detail

• .

than the bald statement that he has a valid claim of some type against the defendant."

Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted). Even with

respect to a pro se complaint, a plaintiff must do more than make mere conclusory

statements to support his claim. Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995); see

White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (dismissing a complaint where it "failed

to contain any factual allegations tending to support the [plaintiff's] bare assertion")). It is

well settled that federal courts performing their duties of construing pro se pleadings are

not required to be "mind readers" or "advocates" for pro se litigants. See Beaudett, 775

F.2d at• 1278; Leeke, 574 F.2d at 1151. Plaintiffs Complaint fails to allege facts sufficient

to support a due process claim, and thus, this claim should be dismissed.

Frivolousness

Lastly, this action may also be dismissed based on frivolousness. Defendants

request that this action be dismissed and designated as a "strike" pursuant to 28 U.S.C.

§ 1915(g). [Doc. 21-1 at 8-9.] Plaintiff filed a separate lawsuit alleging the same facts as

in the instant matter, which was dismissed without prejudice, pursuant to Younger v. Harris,

401. U.S. 37 (1971)). Lancaster v. Ruane, No. 7:17-21-TMC-JDA, 2017 WL 727617

(D.S.C. Feb. 1, 2017), Report and Recommendation adopted by 2017 WL 713973 (Feb.

23, 2017). That same Report and Recommendation informed Plaintiff that he failed to state

a claim for false arrest because Plaintiff was indicted by a grand jury. Id. at *2. Plaintiff has

also filed multiple lawsuits alleging false arrest and has been advised each time that a

facially valid indictment acts as a bar to a false arrest claim. See Lancaster v. Horton, No.

7:17-151 -TMC-JDA, 2017 WL 727644 (D.S.C. Feb. 1, 2017), Report and Recommendation

12

adopted by 2017 WL 713977 (D.S.C. Feb. 23, 2017); Lancaster v. Woodward, No. 7:163940-TMC-JDA, 2017 WL 727616 (D.S.C. Jan. 31, 2017), Report and Recommendation

adopted by 2017 WL 713970 (D.S.C. Feb. 23, 2017). As Plaintiffs claims in the present

matter hinge upon his false arrest claim, Plaintiff should know that his lawsuit has no

arguable basis in law. See Nagy v. FMC Butner, 376 F.3d 252, 256-57 (4th Cir. 2004)

(explaining that "[t]he word 'frivolous' is inherently elastic and 'not susceptible to categorical

definition."); Worley v. Keller, 475 F. App'x 484 (4th Cir. 2012) (a suit is frivolous if it lacks

an arguable basis in law or fact). Accordingly, Plaintiffs claims can also be dismissed

based upon frivolousness.

RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that Defendant's

motion to dismiss [Doc. 21] be GRANTED and that Plaintiffs motion for summary judgment

[Doc. 34] be FOUND AS MOOT. It is further recommended that this action be designated

a "strike" pursuant to 28 U.S.C. § 1915(g).

IT IS SO RECOMMENDED.

s/Jacciuelvn D. Austin

United States Magistrate Judge

April 9, 2018

Greenville, South Carolina

13

Additional material

from this filing is

a vailable in the

Clerk's Office.