Opinion
2:24-cv-03260-RMG-MGB
07-10-2024
Lauren Albright, individually, and as personal representative of NG, a minor, Plaintiff, v. Berkeley County Sheriff's Office, et. al., Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Lauren Albright, (“Plaintiff”), individually and as personal representative of her minor son, NG, originally filed this action alleging state law claims and violations of 42 U.S.C. § 1983 in the Berkeley County Court of Common Pleas. (Dkt. No. 1-1.) The action was removed to federal court on May 30, 2024. (Dkt. No. 1.) Currently before the Court is a Motion to Dismiss filed by Defendants Berkeley County Sheriff's Office, Sheriff Duane Lewis, Deputy Jeffrey Day, and Deputy William Kimbro. (Dkt. No. 4.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. For the reasons set forth below, the undersigned recommends Defendants' Motion be granted in part and denied in part.
BACKGROUND
This action arises out of an alleged incident wherein NG, a “special needs eight-year-old minor,” was detained while attending Whitesville Elementary School. (Dkt. No. 1-1 at 3.) Specifically, on November 19, 2023, NG “went to a common area of the school” after his teacher “told him she wished he would run away.” (Id.) According to the Complaint, NG “oftentimes goes to this particular common area to calm down or otherwise separate himself from others who cause him stress.” (Id.) On that day, Defendant Jeffrey Day (“Day”), a Sheriff's Deputy employed by Defendant Berkeley County Sheriff's Office (“BCSO”), was “acting as the School Resource Officer” at Whitesville Elementary. (Id.) The Complaint alleges Day “was not the normal school resource officer for Whitesville Elementary,” and “upon information and belief, Day received no training on how to interact with students nor special needs students” and he “had no experience being a school resource officer.” (Id. at 3-4.)
The Complaint alleges that Day “took aggressive action to ‘correct'” NG's behavior. (Id. at 4.) More specifically, “Day dragged the minor into the principal's office and wrestled with the eight-year-old minor for over thirty minutes, causing bruising to the minor's body, physical pain, and mental trauma.” (Id.) Day ignored directives to stop from “educators in the room.” (Id.) According to the Complaint, when the incident was over, Day “joked and said ‘this ain't much compared to dealing with meth heads all day.'” (Id.)
Defendant William Kimbro (“Kimbro”), a Sheriff's Deputy employed by the BCSO, “later came to Plaintiff Albright's house to explain that Day's actions were necessary ‘to protect harm to others.'” (Id.) The Complaint alleges Kimbro “provided little to no supervision over Day before, during, or after the incident.” (Id.) The Complaint further alleges that despite knowing Day “had no experience with minors, with special needs minors, or as a school resource officer,” Kimbo “failed to train, instruct or otherwise control or advise Defendant Day.” (Id.) The Complaint names BCSO, Day and Kimbro as Defendants as well as the Berkeley County School District (“BCSD”), Anthony Dixon (“Dixon”), in his individual and official capacity as the Superintendent of BCSD, and Duane Lewis (“Lewis”), in his individual and official capacity as the Berkeley County Sheriff.
The Complaint alleges claims for “Gross Negligence” under the South Carolina Tort Claims Act (“SCTCA”) separately against Defendants BCSO and BCSD, and § 1983 claims for “Unreasonable Seizure & Excessive Force” separately against Defendants Day, Kimbro, Lewis, and Dixon. (Id. at 4-10.) The Complaint seeks punitive and compensatory damages.
On June 3, 2024, Defendants BCSO, Lewis, Day, and Kimbro (“Defendants”) filed a Motion to Dismiss. (Dkt. No. 4.) They seek to dismiss the federal claims against BCSO and against Lewis, Day, and Kimbro in their official capacities. (Dkt. No. 4-1 at 2-5.) They further seek to dismiss the § 1983 claims against Lewis and Kimbro in their individual capacities. (Id. at 5-8.) Plaintiff filed a response in opposition on June 17, 2024 (Dkt. No. 13), and Defendants filed a reply brief on June 27, 2024 (Dkt. No. 16). The Motion has been fully briefed and is ready for the Court's review.
STANDARD
Defendants seek dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 24.) On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's 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.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
DISCUSSION
In their Motion, Defendants argue that the Eleventh Amendment bars Plaintiff's § 1983 claims against BCSO and against Lewis, Day, and Kimbro in their official capacities. (Dkt. No. 41 at 2-5.) They further argue that Plaintiff has failed to allege any § 1983 claims against Lewis and Kimbro in their individual capacities. (Id. at 5-8.) As a result, they argue for the dismissal of Kimbro and Lewis from this action, and for the dismissal of the § 1983 claim against Defendant Day, to the extent it is based on conduct in his official capacity.Plaintiff opposes the Motion. She argues that Defendants are not entitled to Eleventh Amendment immunity and that she has properly alleged § 1983 claims against Lewis and Kimbro in their individual capacities. (Dkt. No. 13.)
Defendants do not argue for the dismissal of the § 1983 claim against Day in his individual capacity.
The undersigned considers these arguments, below.
A. Eleventh Amendment Immunity
Defendants first argue that pursuant to Eleventh Amendment immunity, Defendants Lewis, Kimbro, and Day are entitled to dismissal of any § 1983 claims brought against them in their official capacities and BCSO is also entitled to dismissal of any § 1983 claims brought against it. (Dkt. No. 4-1 at 2-5.) Plaintiff argues the Eleventh Amendment does not apply here because Defendants waived any applicable immunity when they removed this action to federal court and because the State treasury is not responsible for any judgment against a county office in South Carolina. (Dkt. No. 13 at 1-4.)
The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). “As an agency of the state, Berkeley County Sheriff's Department is immune from suit under the Eleventh Amendment, which strips this court of jurisdiction to hear a suit brought against the State of South Carolina or its integral parts.” Olszowy v. Schmutz, No. 9:09-cv-01662-PMD-BM, 2009 WL 3698387, at *7 (D.S.C. Nov. 3, 2009); see Brooks v. Berkeley Cnty. Sheriff's Off., No. 2:21-cv-4054-BHH-KDW, 2022 WL 18635126, at *3 (D.S.C. Sept. 1, 2022) (recommending dismissal of BCSO because it is considered a state agency, “and as such, [it is] entitled to sovereign immunity”), adopted by, 2023 WL 142394 (D.S.C. Jan. 10, 2023). Likewise, “[t]he Fourth Circuit and courts within this district have long held that sheriffs in South Carolina are state officials for purposes of Eleventh Amendment immunity.” Childress v. City of N. Charleston, No. 2:21-cv-02843-DCN-MGB, 2021 WL 9553006, at *4 (D.S.C. Dec. 6, 2021) (collecting cases), adopted by, 2022 WL 4376865 (D.S.C. Sept. 22, 2022).
Notably, by voluntarily removing a case to federal court, a defendant waives any immunity from suit in federal court with respect to any claims it otherwise would have been subject to in state court. Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 619 (2002) (“A State's voluntary appearance in federal court waives sovereign immunity for claims where a state has consented to suit in its own courts for such claims); see also Cameron v. Cox, No. 10-cv-1278-HFF-SVH, 2011 WL 1235308, at * 4 (D.S.C. Jan. 21, 2011), adopted by, 2011 WL 1212177 (D.S.C. Mar. 30, 2011). Through enactment of the SCTCA, South Carolina has generally consented to suit for tort claims filed against it in state court. Briggs v. South Carolina Dept. of Corrections, No. 13-cv-1348-RMG, 2014 WL 1278173 at *21 (D.S.C. Mar. 27, 2014).
Such voluntary removal does not waive a defendant's immunity to any § 1983 claims, however. See Passaro v. Virginia, 935 F.3d 243, 248 (4th Cir. 2019) (rejecting argument that the Commonwealth waived its sovereign immunity to a Title I claim by removing case to federal court); Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005) (holding that where a state retains its sovereign immunity from suit in state court, it does not lose that immunity by removing the case to federal court). Plaintiff's argument that Defendants have consented to the federal claims is without merit, as South Carolina has not consented to a § 1983 suit in state court, and therefore cannot waive immunity to such claims in federal court. See Land v. Barlow, No. 2:21-cv-01883-RMG-MHC, 2021 WL 6495298, at *4 (D.S.C. Nov. 17, 2021) (rejecting argument that “by removing the case to federal court, . . . [BCSO] waived sovereign immunity”; “Because South Carolina has not consented to a § 1983 suit in state court, such a suit is barred in federal court, even following removal.”), adopted by, 2021 WL 5997984 (D.S.C. Dec. 20, 2021).
Here, the undersigned recognizes Plaintiff's brief argument that under Ram Ditta By & Through Ram Ditta v. Maryland Nat. Cap. Park & Plan. Comm'n, 822 F.2d 456 (4th Cir. 1987), Defendants cannot be considered “arms of the state” because the state treasury is not responsible for paying any judgment that might be awarded against them. (Dkt. No. 13 at 2-4.) In Ram Ditta, the Fourth Circuit enumerated a four-factor test to determine whether an entity, other than the state itself, is eligible for Eleventh Amendment immunity:
While many factors must be considered in determining whether an entity is the alter ego of the state, it is generally held that the most important consideration is [1] whether the state treasury will be responsible for paying any judgment that might be awarded....Other important inquiries underlying our consideration of eleventh
amendment immunity include, but are not necessarily limited to, [2] whether the entity exercises a significant degree of autonomy from the state, [3] whether it is involved with local versus statewide concerns, and [4] how it is treated as a matter of state law.Ram Ditta, 822 F.2d at 457-58.
In arguing that the state treasury would not be liable for any judgment against Defendants, Plaintiff has submitted email correspondence between Plaintiffs' counsel and the Deputy State Treasurer & General Counsel for the South Carolina Treasurer's Office. (Dkt. No. 13-1.) The email correspondence states “we [ ] have no way to determine on whose behalf a payment is made [by the Insurance Reserve Fund]” and “[t]he State Treasury is not responsible for the payments of any judgment levied against the Dorchester County Sheriff's Office, or any county office for that matter. Questions regarding whether a judgment is covered by the Insurance Reserve Fund should be directed to the Insurance Reserve Fund.” (Id.)
Notably, Plaintiff's counsel unsuccessfully relied on this same email to argue against dismissing different defendant sheriffs in another case in this district. Specifically, in Green v. Dorchester Cty., the court found this “email evidence does not rule out that the state treasury could be impacted by the instant litigation” and, therefore, the first Ram Ditta factor did not weigh against finding the sheriffs were entitled to Eleventh Amendment immunity. No. 2:21-cv-01304-DCN-MGB, 2023 WL 5772627, at *9-*11 (D.S.C. Jan. 18, 2023) adopted by, 2023 WL 5345752 (D.S.C. Aug. 21, 2023). The court further found that the remaining Ram Ditta factors “swing definitively in favor of finding that sheriffs are agents of the state.” Id. Consistent with Green, the undersigned finds no merit to Plaintiff's argument that Defendants cannot be considered arms of the state for Eleventh Amendment purposes.
Based on the foregoing, the undersigned recommends that the Eleventh Amendment bars Plaintiff's § 1983 claims against all Defendants in their official capacities. Accordingly, any § 1983 claim against BCSO should be dismissedas well as the § 1983 claims brought against Defendants Lewis, Day, and Kimbro in their official capacities. However, because Defendants voluntarily removed this case to federal court and South Carolina has consented to suit for tort claims filed against it in state court, BCSO is subject to suit in this Court for the gross negligence claim asserted against it.
Here, the undersigned recognizes that Plaintiff has not expressly brought any § 1983 claims against BCSO. This recommendation is made to the extent any of the § 1983 claims against Lewis, Day, and Kimbro include allegations against BCSO.
B. § 1983 Claims against Lewis and Kimbro in their Individual Capacities
Defendants next argue that the Complaint fails to sufficiently allege § 1983 claims against Lewis and Kimbro in their individual capacities. (Dkt. No. 4-1 at 5-8.) Defendants argue that the Complaint does not include any allegations of personal participation by Lewis and Kimbro and that it also fails to allege a supervisory liability cause of action against them. (Id.) In response, Plaintiff asserts that Defendants are incorrectly claiming Plaintiff must prove her “allegations as true to survive a motion to dismiss.” (Dkt. No. 13 at 5.)
As discussed above, the Complaint alleges separate § 1983 claims against Lewis and Kimbro for “Unreasonable Seizure & Excessive Force.” (Dkt. No. 1-1 at 7-9.) While these causes of action are captioned in a way that indicates Plaintiff relies on Defendants' personal wrongdoing, the underlying allegations show Plaintiff seeks to hold Lewis and Kimbro liable for their supervisory actions. Indeed, there are no allegations in the Complaint stating Lewis or Kimbro acted personally in the deprivation of NG's or Plaintiff's rights. See Harbeck v. Smith, 814 F.Supp.2d 608, 627 (E.D. Va. 2011) (“To establish [ ] personal wrongdoing, the individual ‘must have had personal knowledge of and involvement in the alleged deprivation of appellant's rights in order to be liable.'” (quoting Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)).
Rather, the § 1983 claim against Kimbro alleges he violated Plaintiff's constitutional rights “by failing to supervise Defendant Day while he was acting as” a School Resource Officer. (Dkt. No. 1-1 at 7-8.) The Complaint also alleges Kimbro “failed to train, instruct, or otherwise control or advise Defendant Day,” despite knowing that Day “had no experience with minors [and] with special needs minors.” (Id. at 4.) Likewise, the § 1983 claim against Lewis alleges he violated Plaintiff's constitutional rights by, inter alia, failing to “properly and adequately hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline” unconstitutional activity of BCSO officers and BCSO school resource officers. (Id. at 8-9.) The Complaint further alleges Lewis failed “to enact reasonable procedures in ensuring officers who become [school resource officers] are properly trained,” and he failed “to ensure only officers who have had training on how to interact with children or special needs children serve as [school resource officers].” (Id. at 9.)
“[W]here the only remaining claims are against a public official in [his] individual capacity, to hold the official liable for [his] subordinate's conduct, that ‘conduct must meet the test for supervisory liability.'” Pratt-Miller v. Arthur, 701 Fed.Appx. 191, 193 (4th Cir. 2017) (quoting Mikkelsen v. DeWitt, 141 Fed.Appx. 88, 91 (4th Cir. 2005)). The Fourth Circuit has set forth three elements “necessary to establish supervisory liability under § 1983”:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) that there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation marks and citations omitted). To satisfy the first element, a plaintiff must show the following: “(1) the supervisor's knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff.” Id. (citing Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)). “Establishing a ‘pervasive' and ‘unreasonable' risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury.” Id. (citing Slakan, 737 F.2d at 373-74).
Relatedly, to impose supervisory liability under § 1983 for failure to train subordinates, a plaintiff must plead that: (1) the subordinates actually violated the plaintiff's constitutional or statutory rights; (2) the supervisor failed to train properly the subordinates thus illustrating a “deliberate indifference” to the rights of the persons with whom the subordinates come into contact; and (3) the failure to train actually caused the subordinates to violate the plaintiff's rights. Hubbard v. Byars, No. 8:14-cv-33-BHH, 2015 WL 337642, at *12 (D.S.C. Jan. 26, 2015) (quoting Brown v. Mitchell, 308 F.Supp.2d 682, 701 (E.D. Va. 2004)).
A plaintiff can plead that supervisory defendants failed to properly train their subordinates in a manner exhibiting deliberate indifference in two ways. First, a plaintiff can plead that defendants “were aware of, and acquiesced in, a pattern of constitutional violations.” Gallimore v. Henrico Cnty. Sch. Bd., 38 F.Supp.3d 721, 726 (E.D. Va. 2014) (quoting City of Canton v. Harris, 489 U.S. 378, 397 (1989). Second, a plaintiff can allege facts that show that defendants failed to “train [their] employees concerning an obvious constitutional duty that the particular employees are certain to face.” Id. (quoting Brown, 308 F.Supp.2d at 704. A plaintiff must also establish a “causal” nexus between the deficient training and the alleged constitutional violation. Brown, 308 F.Supp.2d at 694. Generally, a plaintiff cannot demonstrate the requisite causal connection “by proof of a single incident of unconstitutional activity alone.” Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994). However, under limited circumstances, a single incident can establish a causal connection where the constitutional duty is so obvious that without the proper training, “the specific violation [was] ‘almost bound to happen, sooner or later.'” Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987) (quoting Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir. 1983)).
Upon review, the Complaint does not allege a widespread pattern of constitutional violations that would put Kimbro or Lewis on notice of the need for additional or better supervision and/or training of school resource officers within BCSO. See, e.g., Brown v. Collier, No. 7:23-cv-00567, 2024 WL 3184651, at *3 (W.D. Va. June 26, 2024) (granting supervisory defendants' motion to dismiss because plaintiff “does not allege a ‘pattern of similar constitutional violations by untrained employees,' which is ‘ordinarily necessary' for a successful failure-to-train claim” (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)); Armstrong v. City of Greensboro, 190 F.Supp.3d 450, 468 (M.D. N.C. 2016) (dismissing supervisory liability claim where plaintiff failed “to allege facts sufficient to show a widespread pattern or practice from which to derive [the defendant's] liability”).
However, the Complaint does allege that Lewis and Kimbro failed to train officers within BCSO in an area where there is an obvious need for training. The Complaint alleges that Day, while acting as a school resource officer, physically dragged NG into the principal's office and wrestled with him for over thirty minutes, causing NG bruising, physical pain, and mental trauma. “The need to train [school resource officers] on the proper handling and restraint of special needs students was plainly obvious, and the risk of not training [the officers] was realized as alleged by the injuries sustained in [the] Complaint.” P.A. v. Fayette Cnty. Bd. of Educ., No. 2:19-CV-00705, 2020 WL 4740481, at *7 (S.D. W.Va. Aug. 14, 2020).
At this stage in the proceedings, the undersigned recommends Plaintiff has sufficiently plead § 1983 failure-to-train claims against Kimbro and Lewis based on their failure to adequately train Day on how to properly interact with special needs minors as a school resource officer. (Dkt. No. 1-1 at 4, 7-9). Although thin, the allegations in the Complaint give rise to a reasonable inference connecting this training failure on Kimbro and Lewis's part to the wrongdoing Plaintiff alleges. See P.A., 2020 WL 4740481, at *7 (finding plaintiffs sufficiently plead failure-to-train claim against defendant “under the theory that the need to train employees on the proper restraint of special needs students was ‘plainly obvious'”); DeHaven v. W. Virginia Div. of Corr., No. 2:14-cv-16156, 2014 WL 2765612, at *4 (S.D. W.Va. June 18, 2014) (finding “the Complaint adequately states a claim for supervisory liability for failure to train under § 1983” based on defendants' failure to train “their officers ‘concerning a clear constitutional duty implicated in recurrent situations that a particular [officer] is certain to face'”). However, any other § 1983 claims brought against Kimbro and Lewis in their individual capacities should be dismissed, for the reasons discussed above.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' Motion to Dismiss (Dkt. No. 4) be GRANTED IN PART AND DENIED IN PART. Specifically, the undersigned recommends the § 1983 claims brought against Lewis, Kimbro, and Day in their official capacities should be dismissed. Additionally, to the extent any of those § 1983 claims include allegations against BCSO, such claims cannot be brought against BCSO pursuant to the Eleventh Amendment. The undersigned further recommends the § 1983 failure-to-train claims against Kimbro and Lewis should survive dismissal. Any other § 1983 claims brought against Kimbro and Lewis in their individual capacities should be dismissed, however.
IT IS SO RECOMMENDED.