                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-2126


BRAD R. JOHNSON,

                Plaintiff - Appellant,

           v.

COUNTY OF HORRY, SOUTH CAROLINA; JANET         BROWN;   M.   LOIS
EARGLE; TIM CHRISTOPHER; PAUL ABAJIAN,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:06-cv-02570-TLW)


Argued:   December 1, 2009                 Decided:   January 5, 2010


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stuart M. Axelrod, AXELROD & ASSOCIATES, Myrtle Beach, South
Carolina, for Appellant. Jerome Scott Kozacki, WILLCOX BUYCK &
WILLIAMS, PA, Florence, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       The appellant, Brad Johnson, filed this suit against Horry

County, South Carolina and employees in the County Auditor’s

Office, including: Janet Brown, an administrative assistant, M.

Lois     Eargle,    the    county     auditor,         and    Tim    Christopher,      an

administrative assistant.             Johnson also sued Paul Abajian, an

Horry County police officer.              Johnson filed suit against Eargle,

Brown,    Johnson    and    Officer       Abajian      in    their    individual,     not

official, capacities.         Johnson asserted claims for money damages

pursuant to 42 U.S.C. § 1983 based on the County’s enforcement

of state motor vehicle registration laws.                     Johnson also sought a

declaratory judgment that the statutes at issue, S.C. Code Ann.

§§ 56-3-150(B) & 160 (collectively, “the vehicle registration

statutes”), were unconstitutional on their face and as applied.

Specifically,      Johnson    alleged       that       the   statutes    violated     the

Equal    Protection       Clause    of    the    Fourteenth         Amendment    to   the

United States Constitution, the Privileges and Immunities Clause

(Art. IV, § 2, Cl. 1) of the United States Constitution, and the

dormant Commerce Clause found in Article I of the United States

Constitution.       His claims arising under § 1983 were based on his

contention that the defendants improperly executed and enforced

the unconstitutional vehicle registration statutes.

       The   District      Court    for    the     District     of    South     Carolina

granted      the   defendants’      motion       for    summary      judgment    on   all

                                            2
issues and denied Johnson’s motion for partial summary judgment.

Finding that the appellant’s arguments lack merit, we affirm.



                              I.   BACKGROUND

     From June 2003 to January 7, 2005, Johnson lived in North

Carolina and commuted to his job at Francis Marion University

located in Florence, South Carolina. 1          J.A. 195.   In March 2004

Johnson   purchased    two   residential   rental   properties   in   Horry

County and he visited at least one of these approximately 15

times per month.      J.A. 363.    By his own admission, Johnson was a

resident and domiciliary of South Carolina from January 7, 2005

until April 22, 2007, which he alleges was necessitated under

threat of incarceration by Horry County’s unlawful enforcement

of the vehicle registration statutes.        J.A. 195.

     As part of an increased effort to collect personal property

taxes on motor vehicles determined to be in violation of the

     1
        Although the parties apparently do not dispute that
Johnson’s residence and domicile were in Illinois during this
time period, the record is confusing on this point.     Although
Johnson stated in an affidavit that he was a resident of
Illinois, J.A. 195, he stated in that same affidavit that “at
all times relevant to the allegations he was employed “for
academic year 2003-04 (and beyond)” by Francis Marion University
in Florence, South Carolina and “resided [in] . . . Oak Island,
NC from June 2003 through . . . January 7, 2005.”       J.A. 196
(emphasis added).   Nonetheless, whether Johnson was a resident
of Illinois or North Carolina prior to becoming a resident and
domiciliary of South Carolina in January 2005 has no effect on
the result in this case.



                                     3
vehicle registration statutes, the Horry County Auditor’s Office

notified Johnson in July 2004 that he may be in violation and

warned of potential criminal prosecution.                    J.A. 124-25.           Johnson

received a second letter on September 17, 2004, stating that the

Auditor’s Office had received delivery confirmation of its July

2004 letter and asked that he contact the office immediately.

In     early    October     2004    Eargle        prepared    a     sworn       affidavit

declaring       that    Johnson      was     in     violation      of     the       vehicle

registration statutes.            On October 11, 2004, Johnson received a

letter    from    a    magistrate     judge       alleging    a    violation        of   the

statutes and threatening criminal action unless he contacted the

magistrate court.          Johnson called the magistrate who advised him

to speak with Eargle, which he did in an effort to explain his

living and working arrangements.

       On January 7, 2005, Johnson met with Officer Abajian at one

of Johnson’s rental properties.                 At the meeting Officer Abajian

instructed       Johnson    to     register       his    vehicle    with     the      South

Carolina       Department    of     Motor       Vehicles     and    obtain      a     South

Carolina driver’s license.            Johnson was not taken into custody,

but,     allegedly      under      duress,        immediately      took     the       steps

necessary to register his vehicle.                      He then filed the present

challenge to the vehicle registration statutes.




                                            4
                                   II.   ANALYSIS

       The   district      court     determined         that     Johnson’s    claims

concerning the unconstitutionality of the vehicle registration

statutes were without merit, both facially and as applied.                          As

an alternative basis for its decision, the district court also

concluded that the individual defendants had qualified immunity

from Johnson’s claims arising under 42 U.S.C. § 1983 “because a

reasonable    official     would     not       have    been    cognizant   that    his

actions - enforcing facially valid statutes – violated any of

the constitutional rights asserted by the plaintiff.”                      J.A. 371.

Finally, the district court granted summary judgment to Horry

County because Johnson failed to identify an Horry County policy

that could result in liability.

       We review a district court’s grant of summary judgment de

novo, “viewing the facts in the light most favorable to, and

drawing all reasonable inferences in favor of, the nonmoving

party.”      Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d

194,   198   (4th   Cir.   2005).        A     grant    of    summary   judgment    is

warranted only if “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.”                        Fed. R. Civ. P.




                                           5
56(c). 2      “[A]s a practical matter, we recognize that summary

judgment           may   be    particularly    appropriate      given    the

circumstances, because it is favored as a mechanism to secure

the just, speedy and inexpensive determination of a case, where

its proper use can avoid the cost of a trial.”             JKC Holding Co.

LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th

Cir.       2001)    (citing   Thompson   Everett,   Inc.   v.   Nat’l   Cable

Advert., L.P., 57 F.3d 1317, 1322-23 (4th Cir. 1995)).

       The South Carolina vehicle registration statutes provide,

in part, as follows:

            The vehicle of a nonresident must be registered
       and licensed pursuant to this chapter upon the earlier
       of a nonresident's:
            (1) subsequent establishment of domicile in this
       State; or
            (2) operation of the vehicle in this State for an
       accumulated period exceeding one hundred fifty days.

S.C. Code Ann. § 56-3-150(B).

            Every foreign vehicle moved into this State the
       owner of which is a resident of this State immediately
       becomes liable for registration and license under the
       provisions of this chapter, and for the purpose of
       this section, the term “resident of this State” shall
       include   every  person   who   moves  temporarily  or
       permanently into this State for the purpose of
       engaging in any business, profession or employment.

S.C. Code Ann. § 56-3-160.



       2
       Due to amendments to the Federal Rules of Civil Procedure
effective December 1, 2009, this provision is now located in
Fed. R. Civ. P. 56(c)(2).



                                         6
      Johnson     contends     that    the       statutes       violate   the       Equal

Protection      Clause   and   the     Privileges         and     Immunities    Clause

because      “they   facially       treat        residents        differently        from

nonresidents . . . and facially burden every nonresident who

enters    and   leaves   South   Carolina.”           Br.    of    Appellant    at     29

(quotations omitted).          In his First Amended Complaint Johnson

asserts that

      based upon the plain meaning of S.C. Code Ann. § 56-3-
      160, when a legal resident of another state (i.e., an
      [sic] S.C. nonresident) moves across the S.C. state
      line operating a motor vehicle, owned by the S.C.
      nonresident and displaying valid non-S.C. car-tags,
      the S.C. nonresident/owner (a) is deemed (legal
      fiction created) a S.C. legal resident/owner and (b)
      is thereby required to immediately (1) register and
      license his vehicle . . . .

J.A. 16. 3

      Johnson     asserts    that     the       vehicle   registration        statutes

prohibit him from residing in North Carolina and traveling to

South Carolina for work because, once he does so in excess of

150 days, he becomes subject to the registration and licensing

requirements of S.C. Code Ann. § 56-3-150(B).                        With respect to

the   Equal     Protection     Clause,          Johnson     argues     that    he     “is



      3
       Johnson’s characterization of the statute is confusing.
The plain language of the statute means that any resident of
South Carolina, either a long-time resident or one who has moved
there temporarily or permanently, must register and license any
vehicle registered in another state once it is brought to South
Carolina.



                                            7
currently in fear of criminal prosecution by North Carolina law

enforcement       persons    because       [he]   cannot     comply    with          North

Carolina    Law      (requiring     registration     and    licensing          of    [his]

motor vehicles in North Carolina) and remain in compliance with”

the   vehicle     registration      statutes.       Br.    of   Appellant           at   41.

Accordingly, Johnson says “that under threat of incarceration,

[he] was forced to change [his] legal residence and domicile” to

South Carolina from Illinois.           Id.

      There     is    a   serious    and    dispositive      flaw     in       Johnson’s

analysis.     S.C. Code Ann. § 56-3-150(A) provides as follows:

      A foreign privately owned and operated passenger
      vehicle   of  a   nonresident,  otherwise subject  to
      registration and license as provided by this chapter,
      may be operated within this State without being
      registered and licensed pursuant to this chapter,
      subject to the conditions that at all times when
      operated in this State the vehicle:

      (1) is duly registered or licensed in the state,
      territory, district, or country of residence of the
      owner; and

      (2) has displayed on it a valid registration card and
      registration or license plate or plates.

(Emphasis     added).        The     statute      thus     “provides       a    general

exemption     from    the   registration       requirement      for   ‘[a]      foreign

privately-owned-and-operated                passenger        vehicle            of        a

nonresident,’” United States v. Johnson, 256 F.3d 214, 216 (4th

Cir. 2001) (quoting § 56-3-150), so long as the vehicle at issue

is registered or licensed in the owner’s state of residence.


                                           8
      Although Johnson was either a resident of North Carolina or

Illinois at the time of the County’s enforcement of the vehicle

registration statutes, see supra note 1, the vehicle at issue

displayed an Oregon license plate. 4                 J.A. 128, 352.       Therefore,

Johnson did not fall within the general exemption contained in

§ 56-3-150(A) – his pickup truck was not registered or licensed

in   the     state    of   his     purported      residency,   Illinois    or    North

Carolina. 5         Johnson was thus “otherwise subject to registration

and license” under § 56-3-150(B), which required him to register

and license his vehicle if he became a domiciliary of South

Carolina or if he operated his pickup truck in South Carolina in

excess of 150 days. 6

        The Equal Protection Clause states, in relevant part, that

“[n]o       State    shall   .     .   .   deny    to    any   person   within     its

jurisdiction         the   equal    protection      of   the   laws.”   U.S.    Const.


        4
       Johnson admits that he established his residency and
domicile in South Carolina on January 7, 2005 (though he claims
to have done so under duress from the defendants’ enforcement of
the vehicle registration statutes) and there is no question that
he was required to register his vehicle in that state under 56-
3-150(B) upon doing so.
        5
       There is no evidence in the record that Johnson was at any
relevant time a resident of Oregon.
        6
       The validity of the County’s determination that Johnson
had in fact operated the vehicle in South Carolina in excess of
150 days is not before us, but we note that Johnson admitted
having been at one of his residences in Horry County about
fifteen times per month. J.A. 115.



                                            9
amend. XIV, § 1.                “The Clause requires that similarly-situated

individuals be treated alike.”                         Giarratano v. Johnson, 521 F.3d

298, 302 (4th Cir. 2008) (citing City of Cleburne v. Cleburne

Living Ctr., Inc., 473 U.S. 432, 439 (1985)).                                 “Under an Equal

Protection analysis, courts generally hold that ‘legislation is

presumed to be valid and will be sustained if the classification

drawn by the statute is rationally related to a legitimate state

interest.’         Id. at 302-303 (quoting Cleburne, 473 U.S. at 440).

        As    discussed         by    the       district       court,    we    disagree   with

Johnson’s          assertion          that       non-residents          receive       disparate

treatment         under   the        vehicle      registration         statutes.       Clearly,

§ 56-3-160         only    applies         to    residents       and    cannot,     therefore,

subject       non-residents           to    disparate         treatment.        Section 56-3-

150(B), in contrast, does not apply to residents at all; it

simply treats certain non-residents (those who operate a vehicle

in the state in excess of 150 days without valid registrations

from    their       state       of    residence)         the    same    as    South    Carolina

residents.         Johnson, as a non-resident driving a vehicle on the

roads of South Carolina without a valid registration from his

state        of   residence,          is    not       similarly      situated      with   South

Carolina residents.              Likewise, Johnson is not similarly situated

with those nonresident drivers who do travel to South Carolina

for    employment         but    maintain         a    valid    vehicle       registration   in

their    state       of     residence           (and    who    are     thus    exempted   from

                                                  10
registering their vehicle in South Carolina by § 56-3-150(A)).

A nonresident does not “move” into the state merely by crossing

the state line; the term plainly contemplates a fixed rather

than transitory status.

      Moreover, a nonresident subject to the vehicle registration

statutes is not being treated differently than a resident.                    The

crux of Johnson’s complaint is not that he is being subject to a

different      obligation    from     South    Carolina      residents        (the

registration and payment of property tax on his vehicle), but

that he is being subjected to those obligations.                  In essence, he

seeks to be treated differently from South Carolina residents.

      For the same reasons set forth above we also agree with the

district    court   that    “the    statutes   do   not    unconstitutionally

burden   the   right   to   interstate      travel.”       J.A.    358.    South

Carolina undoubtedly has a strong interest in regulating the

vehicles on its roadways and Johnson has not carried his “burden

‘to   negate   every   conceivable     basis   which      might    support’    the

legislation.”       Giarratano, 521 F.3d at 303 (quoting Lehnhausen

v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).                       The

vehicle registration statutes only apply to those who move to

South Carolina or who, like Johnson, avail themselves, for more

than 150 days, of the use of South Carolina’s roadways while

operating a vehicle that is not registered in their own state of

residence.      Contrary to Johnson’s assertions, the statutes do

                                       11
not significantly infringe on “the right of a citizen of one

State to enter and to leave” South Carolina, Saenz v. Roe, 526

U.S. 489, 500 (1999), or discriminate “against citizens of other

States    where    there   is       no        substantial       reason      for   the

discrimination beyond the mere fact that they are citizens of

other States.”     Toomer v. Witsell, 334 U.S. 385, 396 (1948).                    In

short, Johnson may travel across South Carolina unimpeded so

long as he abides by the reasonable and minimally burdensome

regulations    necessary   to   protect         the    safety   of   that    state’s

citizens.

     Finally, we find no merit in Johnson’s contention that the

vehicle     registration   statutes       violate       the     dormant     commerce

clause.

         The Commerce Clause states, “The Congress shall
    have Power ... To regulate Commerce . . . among the
    several States,” U.S. Const. art. I, § 8, cl. 3, and
    it is well-established that this affirmative grant of
    authority implies a “negative” or “dormant” constraint
    on the power of the States to enact legislation that
    interferes with or burdens interstate commerce.    See
    Dennis v. Higgins, 498 U.S. 439, 447, 111 S.Ct. 865,
    112 L.Ed.2d 969 (1991) (“It is also clear, however,
    that the Commerce Clause does more than confer power
    on the Federal Government; it is also a substantive
    restriction   on   permissible  state  regulation   of
    interstate commerce” (internal quotation marks and
    citation omitted)).

Brown v. Hovatter, 561 F.3d 357, 362–63 (4th Cir. 2009).

     Determining    whether     a    state       law    violates     the     dormant

Commerce Clause involves a two-tiered analysis.                      Id. at 363.


                                         12
The   first    inquiry       is   “whether    the    state       law   discriminates

against interstate commerce.”            Id. (emphasis omitted).             In this

context, “‘discrimination’ simply means differential treatment

of in-state and out-of-state economic interests that benefits

the former and burdens the latter.” Oregon Waste Systems, Inc.

v. Dep’t of Env’tl Quality, 511 U.S. 93, 99 (1994) (emphasis

added).       If the state law is nondiscriminatory, a court asks

whether it “unjustifiably burdens interstate commerce.”                       Brown,

561 F.3d at 363. The law “will be upheld unless the burden

imposed   on     [interstate]       commerce        is    clearly      excessive    in

relation to the putative local benefits.”                     Pike v. Bruce Church,

Inc., 397 U.S. 137, 142 (1970).

      The district court properly rejected Johnson’s claim that

requiring nonresidents to register their vehicles after they are

determined     to   be   a    resident   pursuant        to    South   Carolina    law

constitutes     a   discriminatory       trade   barrier        prohibited   by    the

dormant Commerce Clause.           The vehicle registration statutes are

directed at activity in South Carolina, not elsewhere, and they

do not discriminate between in-state and out-of-state interests.

      South Carolina’s registration requirements do not impose a

disproportionate burden on interstate commerce.                        If anything,

South   Carolina’s       vehicle   registration          requirements    burden    in-




                                         13
state residents, not vice-versa. 7         See Am. Trucking Assocs., Inc.

v.   Mich.    Public    Serv.   Comm'n,       545   U.S.   429,     434   (2005)

(upholding fee assessed only against intrastate transactions).

As   the     district   court    observed,      the     vehicle     registration

statutes     “are   necessary   to   insure    public    safety.”      J.A.   359

(quoting Arizona v. Richey, 762 P.2d 585, 587 (Ariz. Ct. App.

1988)).    As such, they are nothing more “than an unobjectionable

exercise of the State's police power.”                Am. Trucking Assocs.,

545 U.S. at 434.

     For the foregoing reasons, South Carolina Code Ann. § § 56-

3-150(B) and 56-3-160 are constitutional, both facially and as




     7
       Although the district court did not mention it, we note
the record contains no factual evidence that the registration
requirement “imposes any significant practical burden upon
interstate trade.”    Am. Trucking Assocs., 545 U.S. at 434.
Johnson has thus not shown that the vehicle registration
statutes “involve burdens placed on the interstate movement of
goods, materials, or other articles of commerce.”   Brown, 561
F.3d at 365.



                                      14
applied. 8   Accordingly, we affirm the judgment of the district

court.

                                                        AFFIRMED




     8
       Because we find the vehicle registration statutes at issue
constitutional, we need not address the district court’s
alternative   finding   that,   even   if   the   statutes   were
unconstitutional, the individual defendants would be entitled to
qualified immunity and Horry County was not subject to liability
under Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978). We
note, however, that the defense of qualified immunity only
“protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’”    Pearson v. Callahan, 555 U.S. ___, 129 S.
Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (emphasis added)).    The defense is not available in
“cases against individuals where injunctive relief is sought
instead of or in addition to [monetary] damages.”     Id. at 822
(emphasis added). Thus, while the defense of qualified immunity
may have protected the individual defendants from judgment
awarding money damages, a determination of the constitutionality
of the statutes was still required because Johnson also sought
“[a] preliminary and permanent injunction enjoining [Horry
County] and [the] Individual County Defendants from executing
established practices and procedures enforcing” the vehicle
registration statutes. J.A. 35 (emphasis omitted).



                                15
