Bradley R. MARSHALL, Plaintiff, v. NINTH CIRCUIT SOLICITOR'S OFFICE, et al., Defendants Case No. 2:20-cv-2993-RMG United States District Court, D. South Carolina, Charleston Division Signed January 26, 2022 Filed January 27, 2022 Counsel Bradley R. Marshall, Mt. Pleasant, SC, Pro Se. Christopher Thomas Dorsel, Senn Legal, Charleston, SC, for Defendants Ninth Circuit Solicitor's Office, Scarlett A. Wilson, Gregory Voight. Elloree A. Ganes, Evan Michael Sobocinski, Hood Law Firm LLC, Charleston, SC, for Defendants South Carolina Law Enforcement Division, R. Kelly, Charles Ghent. Elloree A. Ganes, Hood Law Firm LLC, Charleston, SC, for Defendant Brian Bolchaz. Gergel, Richard M., United States District Judge ORDER *1 Before the Court is Plaintiff's appeal of the Magistrate Judge's December 9, 2021 order granting in part and denying in part Defendants’ motion for protective order and Plaintiff's motion to compel. (Dkt. No. 64). For the reasons set forth below, the Court affirms the December 9, 2021 order and dismisses Plaintiff's appeal. I. Background Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging various violations of his constitutional rights as well as a state law claim. Plaintiff's Amended Complaint concerns an underlying state court action in which Plaintiff was charged with the unauthorized practice of law (“UPL”) in violation of S.C. Code § 40-5-310. (Dkt. No. 12 at 3). Plaintiff alleges that Defendants—including Ninth Circuit Solicitor Scarlett Wilson; Assistant Solicitor Benjamin Simpson; and Assistant Solicitor Gregory Voigt—were required to obtain a declaratory judgment from the South Carolina Supreme Court certifying that his conduct did in fact constitute UPL prior to charging him under the state statute. (Id. at 3, 6). In failing to do so, Plaintiff claims that Defendants abused their investigatory and prosecutorial powers, and violated his constitutional rights under the First, Fourth, Sixth, and Fourteenth Amendments, as well as his rights under 42 U.S.C § 1981 and the South Carolina Tort Claims Act (“SCTCA”). More specifically, Plaintiff claims that Defendants subjected him to unlawful search and seizure, arrest, imprisonment, and malicious prosecution; withheld exculpatory evidence from the state court; and improperly delayed the judicial proceedings. (Id. at 3–8). Moreover, Plaintiff claims that Defendant Wilson “developed and maintained policies, procedures, customs, and/or practices exhibiting deliberate indifference to the constitutional rights of citizens, which were moving forces behind and proximately caused the violations of [his] constitutional and federal rights.” (Id. at 11). Plaintiff further alleges that the “deliberately indifferent training and supervision” provided by Defendant Wilson also contributed to his purported injuries. (Id. at 12). As a result of Defendants’ allegedly unlawful conduct, Plaintiff claims that he “has suffered emotional injuries, and other damages and losses as described herein entitling him to compensatory and special damages....” (Id.). On July 20, 2021, the Magistrate Judge filed an R&R recommending that: (1) Plaintiff's claims proceed against Defendants Wilson and Voigt only to the extent the claims arise from the alleged investigation performed by Voigt and supervised by Wilson; (2) Plaintiff's claims against Simpson be dismissed in their entirety; and (3) Plaintiff's § 1983 claims against the Solicitor's Office be dismissed, and only those state law claims against the Solicitor's Office arising from the alleged investigation performed by Voigt and supervised by Wilson proceed. (Dkt. No. 32 at 10). On August 25, 2021, the Court adopted the above R&R in whole. (Dkt. No. 35) (the “Prior Order”). *2 On November 16, 2021, Defendant's Solicitor's Office, Wilson, and Voigt filed a motion for protective order, asking that the Court “prevent the disclosure of the mental impressions, strategies, opinions and other information protected by the Work Product Doctrine.” (Dkt. No. 45 at 1). That same day, Plaintiff filed a motion to compel, asking the Court to compel Voigt “to answer deposition questions related to claims set forth in the amended complaint and to produce documents for an in camera review.” (Dkt. No. 46 at 1). On December 9, 2021, the Magistrate Judge ruled on the above motions: [T]he Court grants in part Defendants’ Motion for Protective Order and orders that the following areas of discovery are protected from disclosure: (1) deposition questions concerning actions taken, strategies, opinions, etc. by the Solicitor Defendants after Plaintiff was arrested; (2) any testimony from Simpson; (3) attorney notes and research created after Plaintiff's arrest; and (4) any other documents or tangible items created after the arrest of Plaintiff that contain attorney opinion work product. (Id. at 7.) While Defendants also seek protection from disclosure the “prosecutorial memos,” Plaintiff has asked that the Court review these memos in camera before finding them privileged. Given the limited number of pages at issue, Plaintiff's request for in camera review is granted. The Court will review the prosecution memos and legal research identified in the Solicitor's Office's privilege log (Dkt. No. 46 at 93), and determine whether these documents constitute opinion work product and/or are irrelevant because they were created after Plaintiff's arrest warrant was issued. ... Additionally, given the above findings, the Court denies in part Plaintiff's Motion to Compel. The Court will not compel Voigt to answer deposition questions concerning events after the arrest warrant was issued. For the reasons detailed herein, defense counsel's objections during Voigt's deposition based on relevance and privilege were sound. However, the Court grants Plaintiff's request for in camera review, as discussed above, and holds in abeyance its ruling as to whether the prosecutorial memos should be produced, pending in camera review. (Dkt. No. 56 at 13) (the “Discovery Order”). On December 16, 2021, Plaintiff appealed the Discovery Order. (Dkt. No. 64). II. Legal Standard Rule 72(a) of the Federal Rules of Civil Procedure permits a party to submit objections to a magistrate judge's ruling on nondispositive matters, such as discovery orders. Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636(b)(1)(A). As a non-dispositive matter, the review of a magistrate judge's discovery order is governed by the “clearly erroneous” or “contrary to law” standard of review. Id. Only if a magistrate judge's decision is “clearly erroneous or contrary to law” may a district court judge modify or set aside any portion of the decision. Id. A court's “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); see also Harman v. Levin, 772 F.2d 1150, 1152 (4th Cir. 1985). “In light of the broad discretion given to a magistrate judge in the resolution of nondispositive discovery disputes, the court should only overrule a magistrate judge's determination if this discretion is abused.” Shoop v. Hott, 2010 WL 5067567, *2 (N.D.W. Va. Dec. 6, 2010) (citing Detection Sys., Inc. v. Pittway Corp., 96 F.R.D. 152, 154 (W.D.N.Y. 1982)). III. Discussion *3 In its Prior Order, the Court adopted in whole the Magistrate Judge's July 20, 2021, R&R. (Dkt. No. 35). In pertinent part, the Court found: Prosecutors “are immune from § 1983 claims where their challenged actions are intimately associated with the judicial phase of the criminal process.” See Cash v. Horn, No. 7:16-cv-3654-MGL-PJG, 2017 WL 4174775, at *2 (D.S.C. Apr. 28, 2017), adopted by, 2017 WL 4156456 (D.S.C. Sept. 19, 2017) (referencing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). “To determine whether a particular act is ‘intimately associated with the judicial phase,’ ... we employ a functional approach.” Nero v. Mosby, 890 F.3d 106, 118 (4th Cir. 2018) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). “We look to ‘the nature of the function performed,’ without regard to ‘the identity of the actor who performed it,’ ‘the harm that the conduct may have caused,’ or even ‘the question whether it was lawful.’ ” Id. (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). “The official claiming absolute immunity ‘bears the burden of showing that such immunity is justified for [each] function in question.’ ” Id. (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)). “In applying this functional approach, the Supreme Court has distinguished between advocative functions and investigative or administrative functions, holding that the former enjoy absolute immunity but the latter do not.” Id. (citing Kalina v. Fletcher, 522 U.S. 118, 125–26 (1997)). A prosecutor acts as an advocate when she professionally evaluates evidence assembled by the police, Buckley, 509 U.S. at 273, ... decides to seek an arrest warrant, Kalina, 522 U.S. at 130, ... prepares and files charging documents, id., participates in a probable cause hearing, Burns, 500 U.S. at 492, and presents evidence at trial, Imbler, 424 U.S. at 431 .... In contrast, a prosecutor does not act as an advocate, but rather in an investigative or administrative capacity, when she gives legal advice to police during an investigation, Burns, 500 U.S. at 493, ... investigates a case before a probable cause determination, Buckley, 509 U.S. at 274 ..., and personally attests to the truth of averments in a statement of probable cause, Kalina, 522 U.S. at 129. Nero, 890 F.3d at 118. In reviewing the Amended Complaint, the [Court] finds that, at this stage in the proceedings, Defendants Wilson and Voight have not established that Plaintiff's claims against them are entirely barred by prosecutorial immunity. Specifically, Plaintiff alleges that after a local attorney contacted several agencies in July of 2012 with complaints about Plaintiff participating in the unauthorized practice of law (“UPL”), “Wilson assigned Voit, who was acting, under the color of state law, to investigate Marshall. Voight's investigation involved interviews of [the local attorney] and multiple other individuals over a period of months.” (Dkt. No. 12 at 3.) This investigation allegedly occurred prior to the execution of a search warrant and Plaintiff's arrest. (Id.) Because this alleged conduct implies the performance of an investigative function by Voight under Wilson's supervision, the [Court finds] these Defendants are not entitled to dismissal based on prosecutorial immunity. *4 ... However, the remaining allegations in the Complaint imply advocative functions by Defendants Wilson, Simpson, and Voight. (See Dkt. No. 12 at 3–6 (alleging, inter alia, Voight arranged for preliminary hearing; Wilson, Simpson, and Voight “declined to schedule hearings for any of the motions” and only provided the SLED file as discovery; “Simpson entered a nol prossed concerning the then pending charges with leave to restore,” and he later filed a declaratory judgment action with the South Carolina Supreme Court).) Accordingly, the [Court finds] that Defendant Simpson is entitled to prosecutorial immunity and should be dismissed from this action. The [Court] further [finds] that Defendants Wilson and Voight are entitled to prosecutorial immunity as to any allegations extending beyond the investigation discussed above. (Dkt. No. 32 at 6-8) (emphasis added). After a careful review of the parties’ briefing, the record, and the Discovery Order—and finding no clear error therein—the Court overrules Plaintiff's objections. First, Plaintiff objects in general terms regarding the Magistrate Judge's ruling that Plaintiff cannot depose Simpson because the testimony would be irrelevant and/or protected by the work product doctrine. As noted above, the Court dismissed Simpson from this case because his challenged actions against Plaintiff were barred by the doctrine of prosecutorial immunity. (Dkt. No. 32 at 8) (noting that Plaintiff alleged Simpson became involved in the action after Plaintiff had been indicted and was responsible for entering the “nol prossed concerning the then pending charges”). In his appeal of the Discovery Order, beyond speculation, (Dkt. No. 64 at 11-13), Plaintiff presents no substantive argument as to why the Magistrate Judge's finding that Simpson's testimony would be irrelevant or otherwise protected is clearly erroneous—especially given Plaintiff nowhere disputes that Simpson was not employed by the Solicitor's Office in 2012 and 2013, the years during which the allegedly wrongful investigation took place. See (Dkt. No. 45 at 7). Accordingly, Plaintiff's appeal as to Simpson is overruled. As to Voigt, Plaintiff presents no substantive argument demonstrating how the Magistrate Judge's ruling that the doctrine of prosecutorial immunity bars Plaintiff from posing questions “concerning actions taken, strategies, opinions, etc. by the Solicitor Defendants after Plaintiff's arrest” was clearly erroneous. Instead, without cogent explanation or citation to case law, Plaintiff claims the finding was “unreasonable.” (Dkt. No. 64 at 13-14). Again, Plaintiff has not demonstrated that the Magistrate Judge's ruling as to Voigt was clearly erroneous, and Plaintiff's appeal of this portion of the Discovery Order is overruled. Last, again repeating arguments already considered and rejected by the Magistrate Judge, Plaintiff argues that Defendants’ motion for a protective order should have been denied because the work product doctrine cannot be “invoked to conceal wrongdoing,” Plaintiff has a “substantial need” for the disputed material, and Plaintiff is entitled to the materials because he is attempting to “show his innocence.” (Dkt. No. 64 at 15-20). The Court overrules these arguments. In his appeal, Plaintiff states that the evidence he “is seeking in this case relates to fact work product.” (Dkt. No. 64) (emphasis added). In the Discovery Order, the Magistrate Judge granted Defendant's motion for protective order as to opinion work product and further indicated that an in camera inspection of the prosecutorial memos would be conducted. (Dkt. No. 56 at 13) (granting Defendants’ motion for protective order as to “attorney notes and research created after Plaintiff's arrest ... and [ ] any other documents or tangible items created after the arrest of Plaintiff that contain attorney opinion work product”). In sum, Plaintiff again fails to present a cogent argument as to how the Magistrate Judge's above ruling was clearly erroneous, especially given the ruling concerned opinion work product. Plaintiff's appeal on this point is therefore overruled.[1] See Washington v. Follin, No. 4:14-cv-416-RBH-KDW, 2016 WL 1614166, at *15 (D.S.C. Apr. 22, 2016) (work product privilege barred production of opinion work product contained in the prosecutorial file from the plaintiff's terminated civil case). IV. Conclusion *5 For the reasons set forth above, Plaintiff's appeal of the Discovery Order (Dkt. No. 64) is DENIED. AND IT IS SO ORDERED. Footnotes [1] In his appeal, Plaintiff also raises a new argument regarding “waiver.” Plaintiff argues Defendants “waived” any work product protections because “Voigt submitted the attached pleading in state court ... [and] in doing so he provided his mental impressions and opinions regarding the reasoning for his action.” (Dkt. No. 64 at 20-21). Besides being procedurally improper—as the argument was not presented to the Magistrate Judge for initial consideration—Plaintiff cites no case law in support of such an interpretation of the work product doctrine. Accordingly, said objection is overruled.