Opinion
C. A. 23-cv-4838-SAL-SVH
11-07-2023
Alexis Carberry, Plaintiff, v. Lancaster County Sheriff Office, ICO and Indv Barry Faile, and Lancaster Magistrate Court ICO Curtisha M. Ingram, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
Lancaster County Sheriff's Office (“LSCO”), Lancaster County Sheriff Barry Faile (“Sheriff Faile”), Lancaster County Magistrate Court (“LCMC”), and state Magistrate Judge Curtisha M. Ingram (“Judge Ingram”) (collectively “Defendants”) removed this case from the Lancaster County Court of Common Pleas pursuant to 28 U.S.C. § 1441 and §1446. [ECF No. 1]. In her complaint, Alexis Carberry (“Plaintiff”), proceeding pro se, alleges Defendants are liable under 42 U.S.C. § 1983 for having violated her rights under the Fourth, Fifth, Tenth, and Fourteenth Amendments to the United States Constitution. [ECF No. 1-1 at 3-4]. She further claims Defendants engaged in a conspiracy to obstruct her civil rights in violation of S.C. Code Ann. § 16-5-10, defamed her, and negligently breached a duty of care owed to her as a domestic violence victim. Id.
This matter is before the court on Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed on October 4, 2023. [ECF No. 8]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if she failed to respond adequately to the motion to dismiss. [ECF No. 10]. Plaintiff subsequently filed a response and an amended complaint, which the court construes as a motion to amend/correct the complaint. [ECF Nos. 14, 16]. The motion to dismiss having been fully briefed [ECF Nos. 8, 16, 17], it is ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Because the motion to dismiss is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends the court grant Defendants' motion to dismiss [ECF No. 8], deny as futile Plaintiff's motion to amend/correct the complaint [ECF No. 16], and deny leave for further amendment of the complaint.
I. Factual Background
A. Original Complaint
Plaintiff is a resident of Lancaster County, South Carolina. [ECF No. 11 at 2]. She claims that her estranged husband, Anthony Benson (“Mr. Benson”), was arrested by the Fort Mill Police Department and subsequently pleaded guilty to domestic violence for having attacked her on October 30, 2019. Id. at 13; ECF No. 16 at 2. She indicates she reconciled with Mr. Benson in May 2020 after he completed a rehabilitation program, and the two moved to Lancaster County in the summer of 2020. [ECF No. 16 at 3]. She states she began to suspect Mr. Benson was abusing drugs and/or alcohol between June and September 2021, during which time she reported several incidents to LCSO through calls, emails, and visits for which LSCO failed to render any aid. Id. at 3, 5-6. She submits Mr. Benson attacked her at a community clubhouse on September 19, 2021, and LCSO refused to do anything because the detective assigned to her case was on vacation. Id. at 3, 6. She states Mr. Benson was not charged with and arrested for domestic violence until September 27, 2021. Id. at 3. She states the charge against Mr. Benson remains pending and claims she has been denied timely due process and justice. Id. at 6.
Plaintiff attaches a series of emails to her motion to dismiss, including an email in which she describes the attack. [ECF No. 16-4 at 3]. She indicates she was at a community clubhouse for a Bible study on September 19, 2021, when Mr. Benson entered the clubhouse and demanded she refund him $200 she had transferred out of their joint account and share a video she recorded. Id. She states Mr. Benson took her keys and purse, yelled and screamed at her, backed her into a corner, shoved his face into hers, threatened to “give her a real reason for a protection order,” snatched her phone from her hand, smashed the phone on the ground, and took her damaged phone with him when he left. Id.
This allegation conflicts with documents Plaintiff attached to her response that indicate Mr. Benson was arrested on September 21, 2021. See ECF No. 16-12 at 12, 28.
Plaintiff claims that on October 30, 2021, LCSO arrested her for driving under the influence (“DUI”), but the arresting officer did not conduct a breathalyzer test at the scene of the arrest. Id.; ECF No. 16 at 7. She indicates she subsequently refused a breathalyzer test at the jail because she was told she would not be released even if she were to pass it. Id.; ECF No. 16 at 7. She notes the South Carolina Department of Motor Vehicles (“SCDMV”) subsequently suspended her license as a result of her refusal of the breathalyzer test. Id.; ECF No. 16 at 8. She claims she was arrested in retaliation for her complaints regarding LCSO's “incompetent law enforcement with regard to domestic violence.” [ECF No. 16 at 8].
The law requires a breath sample “be collected within two hours of the arrest.” S.C. Code Ann. § 56-5-2950(A). Therefore, the law did not require the officer to conduct the breathalyzer at the scene of the arrest. Plaintiff attaches to her response a letter dated November 6, 2021, in which she recounted the circumstances surrounding her arrest. [ECF No. 16-9 at 4]. She wrote “I began to drive and put on my belt.” The undersigned interprets this statement as suggesting Plaintiff was initially driving without wearing a seatbelt. Plaintiff also admits she did not have her driver's license in her possession when she was pulled over. Id. Plaintiff states the officer who pulled her over asked if she had been drinking. Id. She wrote: “I was honest to share that the reason I was a little extra ‘happy' or ‘silly' was because I had an edible cookie.” Id. The undersigned interprets this as Plaintiff's admission that she had eaten a cookie that contained marijuana prior to driving. Plaintiff notes the officer indicated she was “under the influence of the cookie.” Id. at 5. It is unclear from Plaintiff's complaint exactly what she was charged with in relation to this incident. However, it appears she might reasonably have been charged under S.C. Code Ann. § 56-5-2930(A), which provides: “It is unlawful for a person to drive a motor vehicle within this State while . . . under the influence of any other drug or combination of other drugs or substances which cause impairment to the extent that the person's faculties to drive a motor vehicle are materially and appreciable impaired . . . . A person who violates the provisions of this section is guilty of the offense of driving under the influence ....” In addition, by her own account Plaintiff might reasonably have been charged under S.C. Code Ann. § 56-5-6520 (“The driver and every occupant of a motor vehicle, when it is being operated on the public streets and highways of this State, must wear a fastened safety belt which complies with all provisions of federal law for its use.”) and § 56-1-190 (“A licensee shall have his license in his immediate possession at all times when operating a motor vehicle and shall display it upon demand of any officer or agent of either Department of Motor Vehicles or the Department of Public Safety or a law enforcement officer of the State.”).
“A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of the person's breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or the combination of alcohol and drugs, if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs.” S.C. Code Ann. § 56-5-2950(A). Pursuant to S.C. Code Ann. § 56-5-2951(A): “The Department of Motor Vehicles shall suspend the driver's license, permit, or nonresident operating privilege of, or deny the issuance of a license or permit to, a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 .... The arresting officer shall issue a notice of suspension which is effective beginning on the date of the alleged violation in Section 56-5-2930, 56-5-2933, or 56-5-2945.” Plaintiff admits she refused a breathalyzer test and does not allege Defendants took any action other than that directed by law.
Plaintiff states she presented to LCMC for a scheduled appearance before Judge Ingram on the DUI charge on December 7, 2021, and was informed that she could not enter the building because she refused to wear a mask. [ECF No. 1-1 at 4]. She indicates that while she was waiting outside, a deputy and a clerk's office employee informed her that the hearing had been rescheduled because the arresting officer was in training. [ECF No. 16 at 9]. She notes she requested to speak to the judge about dismissing the charge and was informed that she would have to put on a mask to enter the building to speak to the judge. Id. She states she agreed to go inside, but refused to wear a mask. Id. She claims the deputy warned her that he would “straight tackle [her]” if she entered without a mask. [ECF No. 1-1 at 5]. Plaintiff admits she entered the building without a mask, despite the deputy's warning, and sat “peaceful[ly]” in a chair waiting to speak to the judge. Id.; ECF No. 16 at 4. She states another deputy arrested her and charged her with disorderly conduct. [ECF No. 16 at 9]. She indicates she has requested the video surveillance from LCMC, but has not received it. Id.
Plaintiff attaches a copy of a July 30, 2020 order issued by the Honorable Donald W. Beatty, Chief Justice of South Carolina (“Chief Justice Beatty”), mandating that “all persons employed in, conducting business in, or otherwise visiting or present for any reason in county and municipal courthouses statewide . . . wear a protective mask or other facial covering while inside the courthouse.” [ECF No. 16-11 at 5]. The order provides: “Any person who refuses to comply with these directives is subject to contempt for violation of this order.” Id. at 6.
Plaintiff states the DUI charge was dismissed in the summer of 2023, and she has been denied her right to a speedy trial on the disorderly conduct charge. [ECF No. 1-1 at 5].
In Younger v. Harris, the Supreme Court held that a federal court should not interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). The Younger Court noted courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44 (citation omitted). From Younger and its progeny, the Fourth Circuit has derived the following test to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Maryland Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Plaintiff admits the disorderly conduct charge remains pending, satisfying the first part of the test. The second part of the test is met because the Supreme Court has noted “the States' interest in administering their criminal justice system free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). With respect to the third criterion, the Fourth Circuit has noted “‘that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.'” Gilliam, 75 F.3d at 904 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975). Plaintiff may pursue her claim related her right to a speedy trial during the disposition of the criminal charge.
Plaintiff alleges that between July and December 2021, LCSO negligently failed to protect her from her abusive husband, failed to conduct an adequate and timely investigation, falsely arrested her for driving under the influence and public disorderly conduct, attempted to prevent her entry to LCMC, arrested her for entering LCMC without a mask, falsified police documentation, and destroyed reports and video evidence pertaining to her arrests. [ECF No. 1-1 at 3-4]. She claims enforcement of the mask mandate against her resulted in denial of her Fifth, Tenth, and Fourteenth Amendment rights because it was passed outside of legislative channels, and she was serving as a peaceful protester when she was arrested while sitting in a chair LCMC. Id. at 5.
Plaintiff requests the court award damages of $300,000 from each defendant and attorney fees based on “harm to her reputation, humiliation, embarrassment, mental and emotional anguish and distress.” [ECF No. 1-1 at 5].
B. Proposed Amended Complaint
The proposed amended complaint contains most of the same factual allegations as the original complaint and names two additional defendants, SCDMV through its executive director Kevin Shwedo (“Director Shwedo”) and the South Carolina Department of Social Services (“SCDSS”) through its state director Michael Leach (“Director Leach”). [ECF No. 14]. Plaintiff claims SCDSS employees called and emailed her to demand a home visit based on Mr. Benson's “malicious phone calls,” presumably reporting that her children were being abused. Id. at 6. She alleges LCSO and SCDSS refused to investigate the calls. Id. She demands $3,300,000 in damages “plus court and other comparable attorneys fees.” Id. at 8.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of a plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.3d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to Pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Section 1983 Claim
The Eleventh Amendment generally prohibits a federal court 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). The Supreme Court has held that 42 U.S.C. § 1983 does not abrogate a state's Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 322, 340 (1979).
To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that she was injured by “the deprivation of any [of her] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color of state law.” See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). Only “persons” may act under color of state law; therefore, a defendant in a § 1983 action must qualify as a “person.” See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (setting forth the elements of a § 1983 action).
Sheriffs' departments in South Carolina are considered arms of the state. See Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988) (discussing sheriff as agent and alter ego of state and that deputy sheriffs act as the sheriffs agent), affd, 878 F.2d 379 (4th Cir.1989); Carroll v. Greenville County Sheriffs Dept, 871 F.Supp. 844, 846 (D.S.C.1994) (suit against the sheriffs office is suit against the state); S.C. Code Ann. § 23-13-550. As an arm of the state, LCSO is not a “person” within the meaning of § 1983. See Will v. Michigan Dept of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“[N]either a state nor its officials acting in their official capacities are ‘persons' under § 1983.”); see e.g., McCall v. Strickland, C/A No. 4:11-1324-RMG-TER, 2012 WL 2428600 (D.S.C. June 1, 2012) (finding that the Spartanburg County Sheriff's Department should be dismissed as it was not a person amendable to suit under § 1983), report and recommendation adopted by 2012 WL 2427889, (D.S.C. June 27, 2012).
State courts are considered state entities immune from suit in federal court. See Curry v. South Carolina, C/A No. 2:07-599-PMD-GCK, 518 F.Supp.2d 661, 668 (D.S.C. June 20, 2007) (citing Hernandez v. U.S. FamilyCourt of Bronx County, No. 96 CIV. 6138(RPP), 1997 WL 458751, at *5 (S.D.N.Y. Aug. 11, 1997) (“Eleventh Amendment immunity also extends to a state's agencies and courts, and officials of those state agencies and courts when acting in their official capacities cannot be sued for damages. This court does not have subject matter jurisdiction over plaintiff's claims against the Bronx Family Court because the Bronx Family Court is a court or agency of the State of New York.”); Amankwaah v. Cayuga County, No. 92-CV-1103, 1992 WL 296459, at *3 (N.D.N.Y. Oct. 16, 1992) (“Plaintiff's suit against the State's Family court must be dismissed because plaintiff has sued an agency of the state, an entity that is not subject to liability under ... [42 U.S.C. § 1983].”). Magistrate's courts are considered state courts in South Carolina. See Brown v. Tunstall No. 9:07-603-JFA, 2007 WL 1306746, at *2 (D.S.C. May 3, 2007) (“The Supreme Court of South Carolina, the Court of Appeals of South Carolina, Courts of General Sessions, Courts of Common Pleas, Family Courts, Probate Courts, Magistrate's Courts, and Municipal Courts are in a unified judicial system.). Accordingly, LCMC does not qualify as a “person” subject to suit under § 1983.
Plaintiff has failed to state valid claims under § 1983 against Sheriff Faile and Judge Ingram because she has not alleged a causal connection between these defendants and the actions giving rise to her complaint. A plaintiff must allege a causal connection or affirmative link between the conduct of which she complains and the officials sued. See Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the constitution); Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (holding a § 1983 plaintiff must show that he suffered a specific injury as a result of specific conduct of a defendant, and an affirmative link between the injury and that conduct).
The doctrine of supervisory liability is generally inapplicable to § 1983 suits, such that an employer or supervisor is not liable for the acts of his employees, absent an official policy or custom that results in an illegal action. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“In order for an individual to be liable under § 1983, it must be ‘affirmatively shown that the officer charged acted personally in the deprivation of the plaintiff's rights. The doctrine of respondeat superior has no application under this section.'” (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)); see also Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1142-43 (4th Cir. 1982). The Supreme Court has explained that “[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see Slakan v. Porter, 737 F.2d 368, 372-74 (4th Cir. 1984) (finding officials may be held liable for the acts of their subordinates, if the official is aware of a pervasive, unreasonable risk of harm from a specified source and fails to take corrective action as a result of deliberate indifference or tacit authorization).
Plaintiff makes general and conclusory allegations against “Defendants” in the complaint, but fails to specify which, if any, of Sheriff Faile's and Judge Ingram's actions caused her injuries in violation of her federally-protected rights. She does not allege Judge Ingram directed any action that led to her arrest for disorderly conduct or held her in contempt of court for failure to comply with Chief Justice Beatty's order requiring masks in courthouses. In her response, Plaintiff attaches correspondence in which she copied Sheriff Faile regarding the investigation into the domestic violence allegations against Mr. Benson, but she does not explain how his failure to act after being copied on this correspondence led to a violation of any recognized constitutional right. Sheriff Faile's role as the investigating officer's supervisor is insufficient to establish his liability under § 1983. See Doyle v. Hogan, 1 F.4th 249, 256 (4th Cir. 2021) (“[A] general ‘supervisory' role does not permit an individual to sue an officer under Ex Parte Young.”).
To the extent Plaintiff might be alleging Sheriff Faile conspired with others to have her arrested on other charges after she filed complaints against LCSO or to destroy evidence related to her arrests, she has only speculated as to the existence of a conspiracy and has alleged no facts that would support its existence. Under § 1983, an alleged conspiracy must be pled and proved by concrete facts, not mere conclusory allegations. Simmons v. Poe, 47 F.3d 1370, 1376-77 (4th Cir. 1995); Buschi v. Kirven, 775 F.2d 1240, 1248 (4th Cir. 1985). Under Fed.R.Civ.P. 12(b), the court lacks jurisdiction over claims that are “so attenuated and unsubstantial as to be absolutely devoid of merit.” Hagans v. Lavine, 415 U.S. 528, 536 (1974). Plaintiff has not properly pled the existence of a conspiracy under § 1983.
Because LSCO and LCMC are entitled to Eleventh Amendment immunity and Plaintiff has not alleged sufficient facts to link her alleged injuries to Sheriff Faile's or Judge Ingram's conduct, the undersigned recommends her § 1983 claim be dismissed.
2. Judicial Immunity
Even if Plaintiff had properly asserted a claim against Judge Ingram based on her role in addressing Plaintiff's noncompliance with Chief Justice Beaty's order, judicial immunity would shield Judge Ingram from liability.
It is well established that judges have absolute immunity from claims arising out of their judicial actions. Mireless v. Waco, 502 U.S. 9, 12 (1991); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). Judicial immunity is a protection from suit, not just from ultimate assessment of damages, and such immunity is not pierced by allegations of corruption or bad faith. See Mireless, 502 U.S. at 11; see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.'”) (citation omitted). In Stump, 435 U.S. at 362, the court clarified that “whether an act by a judge is a ‘judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.”
To the extent Judge Ingram took any action leading to Plaintiff's arrest for entering the courthouse without a mask, such action was “judicial” insomuch as she was following Chief Justice Beatty's order by exercising the court's power to hold individuals in contempt for violating the mask mandate.
Although Plaintiff alleges Chief Justice Beatty lacked authority to enact and continue the mask mandate, Chief Justice Beatty cited his authority as being derived from Article V, § 4 of the South Carolina Constitution, which provides the Supreme Court authority to “make rules governing the administration of all courts of the State” and to “make rules governing the practice and procedure in all such courts.”
3. Causes of Action Brought Under State Law
Plaintiff attempts to bring additional causes of action under state law, but fails to state valid claims recognized under the law.
Plaintiff asserts a cause of action under S.C. Code Ann. § 16-5-10, which provides as follows:
It is unlawful for two or more persons to band or conspire together or go in disguise upon the public highway or upon the premises of another with the intent to injure, oppress, or violate the person or property of a citizen because of his political opinion
or his expression or exercise of the same or attempt by any means, measures, or acts to hinder, prevent, or obstruct a citizen in the free exercise and enjoyment of any right or privilege secured to him by the Constitution and laws of the United States or by the Constitution and laws of this State.
A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than five years, or both. A person convicted under this section is ineligible to hold, and disabled from holding, any office of honor, trust, or profit in this State.However, SC Code Ann. § 16-5-10 is a criminal statute that does not create a civil cause of action. See Young v. Spartanburg County Detention Facility, C/A No. 6:23-2378-MGL-KFM, 2023 WL 6149760, at *6 (D.S.C. Aug. 14, 2023), report and recommendation adopted by 2023 WL 6143465 (Sep. 20, 2023); Dalton v. Karanfil, C/A No. 19-17645 (MAS) (TJB), 2021 WL 879933, at *4 (D.N.J. Mar. 9, 2021). Therefore, Plaintiff's claim is subject to dismissal.
Plaintiff also attempts to allege a cause of action for negligence under state law, but Defendants properly raise the South Carolina Tort Claims Act (“SCTCA”) as a defense to the negligence claim. The SCTCA provides: “Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued in any state court beyond the boundaries of the State of South Carolina.” S.C. Code Ann. § 15-78-20(e). In addition, a provision of the SCTCA-S.C. Code Ann. § 15-78-60(6)-“specifically excepts the Police from liability concerning the methods which they choose to utilize to provide police protection.” Huggins v. Metts, 640 S.E.2d 465, 467 (S.C. Ct. App. 2006). The South Carolina Court of Appeals has held “police officers do not owe a duty to individuals but to the public at large.” Arthurs v. Aiken County, 525 S.E.2d 542, 551 (S.C. Ct. Appl. 1999). Thus, Plaintiff may not assert a state law claim for negligence based on LCSO's alleged failure to protect her from Mr. Benson.
Plaintiff accuses “Defendants” of defamation “by falsifying police documentation and destroying evidence,” but these are only conclusory allegations, and she points to no actual defamatory statements. Furthermore, “under longstanding South Carolina case law, contents of government records-such as judicial proceedings, case reports, published cases, investigative reports, or arrest records-do not give rise to liability for slander or libel.” Miller v. South Carolina Dept. of Probation, C/A No. 2:09-967-JFA-RSC, 2009 WL 1348604, at *3 (D.S.C. May 12, 2009) (citing Heyward v. Cuthbert, 15 S.C.L. (4 McCord) 354, 356-59 (1827); and Padgett v Sun News, 278 S.C. 26, 292 S.E.2d 30, 32-33 (1983). Therefore, the alleged facts cannot support a cause of action for defamation under South Carolina law.
In light of the foregoing, the undersigned recommends the court dismiss Plaintiff's state law claims under Fed. R. Civ. 12(b)(6).
4. Additional Causes of Action in Proposed Amended Complaint
Plaintiff names Defendants in the original complaint, as well as SCDMV through Director Shwedo and SCDSS through Director Leach. [ECF No. 14]. She asserts Defendants (to include Director Shwedo and Director Leach) violated her rights under the First, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Fourteenth amendments. Id. at 3, 5. As explained in greater detail above, Plaintiff cannot pursue claims for violations of her constitutional rights under 42 U.S.C. § 1983 against LCSO, SCDMV, or SCDSS because they are not individuals and are arms of the state. She cannot pursue § 1983 claims against Sheriff Faile, Judge Ingram, Director Shwedo, and Director Leach because she has not alleged they personally acted to deprive her of any constitutional rights.
In addition to the causes of action discussed above, Plaintiff attempts in the amended complaint to bring causes of action under the Federal Tort Claims Act (“FTCA”), SC Code Ann. § 15-3-530, 18 U.S.C. § 1509, 29 C.F.R. § 1606.8, and S.C. Code Ann. § 16-3-1720. These claims are also subject to dismissal under Fed.R.Civ.P. 12(b)(6).
Plaintiff's claims under the FTCA fail because none of the proposed defendants is subject to suit under the law. The FTCA governs “civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Plaintiff does not sue the United States, the proper party in an action under the FTCA, and none of the parties she attempts to sue is an employee of the United States government. Therefore, Plaintiff's claim does not raise sufficient facts to support a cause of action under the FTCA.
Plaintiff claims she is pursuing a complaint under S.C. Code Ann. § 153-530. However, SC Code Ann. § 15-3-530 does not serve as a cause of action, but merely provides a three-year statute of limitations for the commencement of certain civil actions. As explained above, Plaintiff has not identified any civil action that may be brought against the proposed defendants under state law.
Plaintiff claims she is pursuing an action under 18 U.S.C. § 1509 for obstruction of court orders. The statute provides:
Whoever, by threats or force, willfully prevents, obstructs, impedes, or interferes with, or willfully attempts to prevent, obstruct, impede, or interfere with, the due exercise of rights or the performance of duties under any order, judgment, or decree of a court of the United States, shall be fined under this title or imprisoned not more than one year, or both.
No injunctive or other civil relief against the conduct made criminal by this section shall be denied on the ground that such conduct is a crime.18 U.S.C. § 1509.
Plaintiff identifies no order of a court of the United States that the proposed defendants have allegedly violated. All her complains derived from state court matters. Therefore, she cannot support a claim for relief under 18 U.S.C. § 1509.
Plaintiff indicates she is pursuing a claim for harassment under 29 C.F.R. § 1606.8 based on texts and calls DSS employees sent requesting a home visit, the deputies and magistrate's court employees having denied her entry into the building without a mask, and for having been pulled over for a DUI after making complaints about LSCO. These actions do not give rise to a cause of action under 29 U.S.C. § 1606.8, as the regulations address labor relations between employers and employees and Plaintiff was not employed by LSCO, SCDSS, or any other proposed defendant.
Plaintiff also attempts to assert a cause of action for harassment in the first degree under S.C. Code Ann. § 16-3-1720 based on the same actions. However, SC Code Ann. § 16-3-1720 is a criminal statute setting forth penalties for conviction of harassment in the first degree. It does not give rise to a civil cause of action.
In sum, Plaintiff's proposed amended complaint fails to correct the errors of the original complaint and asserts no valid claim for which this court may provide relief. Accordingly, the undersigned recommends the court deny Plaintiff's motion to amend her complaint. [ECF No. 14].
5. Plaintiff's Additional Requests
Plaintiff requests “a certified copy of the Public Servant insurance bond held by Barry Faile pursuant to S.C. Code § 8-3-220 (2013).” [ECF Nos. 1-1 at 4, 14 at 5, and 16 at 10]. “Any officer, agent, servant or employee of the State or any of its boards, bureaus, departments, commissions or other instrumentalities, upon request therefor by any interested person, shall supply such person with information as to whether any person employed in any office, board, bureau, department, commission, agency or other instrumentality of the State is bonded for any purpose and, if so, furnish such interested person with a copy of such bond.” S.C. Code Ann. § 8-3-210. Plaintiff has not alleged that she requested information as to whether Sheriff Faile is bonded for any purpose from an “officer, agent, servant or employee of the State or any of its board, bureaus, department, commissions or other instrumentalities,” as required pursuant to S.C. Code Ann. § 8-3-210. Therefore, the undersigned recommends the court deny this request, as the law requires affirmative action on the part of Plaintiff that she does not appear to have taken and because Plaintiff has not alleged Sheriff Faile engaged in any action for which a bond would be relevant.
Plaintiff also requests a copy of Sheriff Faile's “signed oath of office.” [ECF No. 16 at 10]. The undersigned denies this request as irrelevant to Plaintiff's claims and as obtainable through other non-judicial sources.
Plaintiff “Objects to counsel of Barry Faile as he is being sued under his own personal liability and responsibility under section 1983.” [ECF No. 16 at 10]. She claims “[i]t is not the taxpayers responsibility to supply a defense attorney for him” and “[h]e must obtain his own counsel to not create any unethical conflict of interest and misuse of taxpayer funds.” Id.
As noted above, Plaintiff has attempted to assert causes of action against Sheriff Faile based on a theory of supervisory liability for action performed in his capacity as Lancaster County Sheriff. Plaintiff has presented no authority-and the undersigned is aware of none-that would require the court to disqualify counsel from representing both LCSO and Sheriff Faile based on the facts Plaintiff alleges. Therefore, the undersigned recommends the court deny Plaintiff's request that counsel be disqualified from representing Sheriff Faile.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Plaintiff's claims be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 8], without leave for further amendment, and her request to amend the complaint be denied [ECF No. 14].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).