Avoki v. City of Chester

Francisco K. Avoki, Plaintiff, v. City of Chester, SC; Police Dept. of Chester, SC; HyGloss Paint & Body Shop, Inc.; Cpl. Robert Martz; Ptl. Tyler Covington, Defendants.

C. A. No. 19-324-SAL-PJG

United States District Court, D. South Carolina, Rock Hill Division

January 4, 2022

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE

Plaintiff Francisco K. Avoki, a self-represented litigant, filed this civil rights action pursuant to 42 U.S.C. § 1983. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the parties' cross motions for summary judgment.^[1] (ECF Nos. 254, 258, 263, & 264.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motions. (ECF Nos. 255, 259.) The motions are fully briefed and ready for resolution.^[2] Having reviewed the record presented and the applicable law, the court concludes that the defendants' motions for summary judgment should be granted and Plaintiff's motions denied.

BACKGROUND

The following facts are either undisputed or are taken in the light most favorable to Plaintiff, to the extent they find support in the record. This case arises out of the towing and impounding of three separate vehicles on three different occasions by the City of Chester, South Carolina.^[3]

On April 3, 2018, Plaintiff's daughter, Prisca Avoki, was involved in a minor car accident in a parking lot while driving a blue minivan owned by Plaintiff's wife, Ekoko Avoki. Defendant Robert Martz, a City of Chester police officer, responded to the scene of the accident. Officer Martz determined that Prisca Avoki was driving without insurance and without a fully licensed driver as required by her beginner's driving permit. The beginner's permit was also expired. Prisca Avoki originally told Officer Martz that her boyfriend was in the car with her at the time of the accident, but Officer Martz believed she was lying. Officer Martz charged Prisca Avoki with providing false information to the police and driving without insurance. Officer Martz had the minivan towed by Defendant HyGloss because it was not insured.^[4] Plaintiff never redeemed the minivan from HyGloss and HyGloss eventually sold the minivan at auction without notifying Plaintiff or registering a lien on the minivan as required by S.C. Code Ann. § 29-15-10.

On May 10, 2018, the City of Chester towed Plaintiff's gold minivan from in front of his house. The City received a complaint from a citizen that the minivan was blocking the sidewalk in front of Plaintiff's house. Defendant Tyler Covington, a Chester Police Officer, and another officer^[5] arrived in response to the complaint and determined that the minivan overtook the entire sidewalk. The officers attempted to make contact with someone at Plaintiff's residence, but nobody was home, and it appeared that no one had occupied the residence for a while because mail was piling up in the mailbox and front door. The officers called for a tow truck to remove the minivan from the sidewalk because no one was available to move the minivan, and the minivan lacked a license plate and appeared abandoned.^[6] The minivan was towed by Chad's Wrecker Service.^[7] On September 8, 2019, ^[8] Plaintiff's son, William Avoki, was arrested for murder by the City of Chester Police. William was driving a black sedan owned by Plaintiff at the time of his arrest. HyGloss towed the sedan at the City's direction.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, raising claims of illegal search and seizure in violation of the Fourth Amendment, violations of the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments, and retaliation.^[9]

DISCUSSION

A. Summary Judgment

Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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.” Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

B. State Action

Defendant HyGloss argues that it is a private corporation and Plaintiff cannot show that it was engaged in state action when it towed Plaintiff's vehicles and sold one at auction. The court agrees.

Plaintiff brings this case pursuant to 42 U.S.C. § 1983, which “ ‘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. McCollan, 443 U.S. 137, 144 n.3 (1979)). To obtain relief under § 1983, the Plaintiff must prove: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The Plaintiff bears the burden of showing that his rights were violated and that the defendant was engaged in state action. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982).

“To constitute state action, ‘the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,' and ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.” West, 487 U.S. at 49 (quoting Lugar, 457 U.S. at 936 n.18). Federal courts have not developed a “precise formula” to determine what conduct constitutes state action, but “the key question remains whether there is a ‘close nexus between the State and the challenged action' such that private conduct ‘may be fairly treated as that of the State itself.' ” Peltier v. Charter Day Sch., Inc., 8 F.4th 251, 261 (4th Cir. 2021) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974)), reh'g en banc granted, No. 20-1001, 2021 WL 4892153 (4th Cir. Oct. 19, 2021). The United States Court of Appeals for the Fourth Circuit has identified four circumstances where a private party can be deemed a state actor:

(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen.

Andrews v. Fed. Home Loan Bank of Atlanta, 998 F.2d 214, 217 (4th Cir. 1993); see also Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (stating that whether the defendants are state actors depends on, among other factors, whether the injury caused is aggravated in a unique way by the incidents of governmental authority, the extent and nature of public assistance and public benefits accorded the private actor, the extent and nature of governmental regulation over the actor, and whether the state itself regards the actor as a state actor).

In its motion for summary judgment, HyGloss does not acknowledge federal case law suggesting that towing vehicles on behalf of local law enforcement agencies may constitute state action under the right circumstances, even by private corporations. See, e.g., Smith v. Insley's Inc., 499 F.3d 875, 880 (8th Cir. 2007) (finding a private towing company acted under state law for purposes of a § 1983 claim by towing the plaintiff's vehicle at the direction of the sheriff and in support of a criminal investigation); Stypmann v. City & Cty. of S.F. 557 F.2d 1338, 1341 (9^th Cir. 1977) (holding that a private towing company acting at the behest of a...