Opinion
C. A. 2:22-CV-02854-BHH-MGB
02-09-2023
DAWANI FLADGER, individually and as a parent or guardian of minor, C.S., PLAINTIFF, v. SUMMERVILLE POLICE DEPARTMENT, UNITED STATES GOVERNMENT, DEFENDANTS.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by Dawani Fladger (“Fladger”), individually and as a parent or guardian of minor, C.S. (“Plaintiffs”), through counsel, alleging causes of action under 42 U.S.C. § 1983 and state law. (Dkt. No. 1.) Before the Court is Defendant United State Government's Motion to Dismiss. (Dkt. No. 8.) All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. For the reasons set forth below, the undersigned recommends the Motion to Dismiss be granted, and the United States Government be dismissed from this action.
BACKGROUND
This civil action arises out of the alleged unlawful search of Plaintiffs' house on August 5, 2020. (Dkt. No. 5.) Plaintiffs allege that “Defendants”had a search warrant for the house located next door to their house, based on a suspicion that it was “the house of an assailant involved in criminal activity.” (Id. at 2.) On August 5, 2020, at approximately noon, Defendants arrived at Plaintiffs' house to execute the search warrant. Despite being at the wrong house, Defendants “proceeded with the execution of the warrant, stormed onto the Plaintiffs' front porch with guns drawn, and forced the Plaintiffs out of their home.” (Id.) Plaintiffs allege that “Plaintiff Fladger pleaded to the Defendants that they were at the wrong house.” (Id.) According to Plaintiffs, after Defendants forced them outside at gunpoint, “Defendants showed Plaintiff Fladger a photo and asked the Plaintiff if he knew the individual in the photo, which was the person the Defendants were actually looking for.” (Id.) Plaintiffs allege they have suffered, inter alia, “extreme fear of their lives,” “invasion of privacy,” “loss of freedom,” and “emotional trauma” based on Defendants' actions. (Id.) The Amended Complaint alleges claims under § 1983 against Defendants Summerville Police Department (“SPD”) and the United States Government for violation of Plaintiffs' rights under the First, Fourth, Ninth, and Fourteenth Amendments. (Id. at 3-4.) The Complaint also alleges claims against Defendants under South Carolina law for “Negligence and Gross Negligence,” “Invasion of Privacy,” “Negligent and Intentional Infliction of Emotional Distress/Outrage,” Wrongful Detainment/Detention,” and “Excessive Force.” (Id. at 4-8.)
The Amended Complaint names the Summerville Police Department and the United States Government as Defendants and appears to refer to both these entities as “Defendants” throughout the factual summary. (Dkt. No. 5.)
On July 29, 2022, Plaintiffs filed this action in the Court of Common Pleas for the County of Dorchester, naming SPD and the U.S. Marshals Services as Defendants. (Dkt. No. 1.) SPD removed the case to this Court on August 26, 2022. On September 13, 2022, Plaintiffs filed an Amended Complaint, in which they named the United States Government and SPD as defendants and removed the U.S. Marshals Services as a named defendant.(Dkt. No. 5.) On January 3, 2023, Defendant the United States Government (hereafter, “Defendant”) filed a Motion to Dismiss. (Dkt. No. 16.) Plaintiffs filed a response in opposition on January 17, 2023 (Dkt. No. 17), and Defendant did not file a reply brief. The Motion is ripe for review.
In a Report and Recommendation issued October 12, 2022, the undersigned recommended that SPD's Motion to Dismiss be granted in part and denied in part. (Dkt. No. 13.)
STANDARD OF REVIEW
Defendant seeks dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 16.) A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks and citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. County Commissioners of Carroll County, Maryland, 523 F.3d 453, 459 (4th Cir. 2008).
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)). “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)).
DISCUSSION
Defendant argues that Plaintiffs' claims against it should be dismissed for lack of subject matter jurisdiction and failure to state a claim. (Dkt. No. 16.) More specifically, Defendant argues that: (1) the Untied States is not subject to suit under § 1983 or the South Carolina Tort Claims Act (“SCTCA”); and (2) to the extent Plaintiffs allege a claim under the Federal Tort Claims Act (“FTCA”), this claim fails because Plaintiffs have not filed the requisite administrative claim. (Id. at 1-2.) Plaintiffs do not directly respond to these arguments in their response brief. (Dkt. No. 17.) They merely assert that dismissal at this early stage in the proceedings, prior to discovery, would be premature. (Id. at 3.)
The undersigned considers Defendant's arguments below.
A. Jurisdiction under § 1983 and SCTCA
Defendant first argues that it is not subject to suit under § 1983 or the SCTCA. (Dkt. No. 16 at 4-6.) Plaintiffs do not directly respond to these arguments. (Dkt. No. 17.)
To state a plausible claim for relief under § 1983, an aggrieved party must sufficiently allege injury by “the deprivation of any [of his or 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). “Section 1983 applies only to state actors, which means that suits against federal officials may not be brought via § 1983.” Massey v. United States Gov't, No. 1:18-cv-341, 2019 WL 8918795, at *1 (M.D. N.C. July 2, 2019) (citing District of Columbia v. Carter, 409 U.S. 418 (1973)), adopted by, 2020 WL 2813467 (M.D. N.C. May 29, 2020). “The United States has not waived its sovereign immunity for constitutional tort suits, such as the one here.” McLean v. United States, 566 F.3d 391, 401 (4th Cir. 2009). Specifically, the United States has not consented to be sued under § 1983. See 42 U.S.C. § 1985; Cuyler v. Dep't of Army, No. 3:10-cv-1561-CMC-JRM, 2010 WL 3941606, at *3 (D.S.C. Sept. 23, 2010) (“The Defendant, a federal agency, is not subject to suit pursuant to § 1983.”), adopted sub nom. Cuyler v. Dep't of the Army, 2010 WL 3940977 (D.S.C. Oct. 6, 2010).
Also, it is well established that “the South Carolina Tort Claims Act does not apply to federal agencies.” Keels v. Sec'y of Health & Hum. Servs., No. 3:01-cv-4864-17BD, 2003 WL 22843160, at *4 (D.S.C. Feb. 6, 2003) (recommending dismissal of SCTCA claim against defendant federal agency); see also S.C. Code Ann. § 15-78-20(b) (“The General Assembly additionally intends to provide for liability on the part of the State, its political subdivisions, and employees, ”).
Based on the foregoing, the undersigned recommends Plaintiffs' claims against Defendant under § 1983 and the SCTCA be dismissed.
B. FCTCA Claim
Defendant next argues that to the extent to the extent Plaintiffs allege a claim under the FTCA, this claim fails because Plaintiffs have not filed the requisite administrative claim. (Dkt. No. 16 at 5.) Again, Plaintiffs do not directly address this argument in their response brief. (Dkt. No. 17.)
The FTCA permits recovery of “damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee.” United States v. Muniz, 374 U.S. 150, 150 (1963). Pursuant to the provisions of the FTCA, the administrative process must be fully exhausted before FTCA claims may be brought in an action in federal court. 28 U.S.C. § 2675(a). Administrative exhaustion under the FTCA requires an inmate to submit written notification of the incident-accompanied by a sum certain claim for monetary damages-to the federal agency responsible for the activities giving rise to the claim. See 28 C.F.R. § 14.2(a) and (b)(1). Here, Defendant has submitted an affidavit from the Office of General Counsel for the U.S. Marshals Service, averring that it has no record of any administrative tort claims “presented” by Plaintiffs.(Dkt. No. 16-1.)
Edley-Worford v. Virginia Conf. of United Methodist Church, 430 F.Supp.3d 132, 133-34 (E.D. Va. 2019) (“In considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), a court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.”).
Upon review, while the Amended Complaint alleges a claim for negligence and gross negligence, it does not mention any statutes within the FTCA. (Dkt. No. 5 at 4-6.) The pleading's lack of specificity and Plaintiffs' failure to dispute Defendant's argument here, warrants dismissal of any purported claim under the FTCA. Even if this claim were properly before the Court, however, dismissal would still be appropriate for lack of exhaustion. See Johnson v. Teague, No. 4:07-cv-3277-RBH, 2008 WL 4065779, at *6 (D.S.C. Aug. 26, 2008) (dismissing FTCA claim against federal agency for lack of exhaustion).
CONCLUSION
For the foregoing reasons, the undersigned recommends that the Court GRANT Defendant's Motion to Dismiss (Dkt. No. 16) and dismiss the United States Government as a party to this action. (Dkt. No. 16.)
IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).