Opinion
Civil Action 2:21-cv-01883-RMG-MHC
11-17-2021
AMANDA LAND, Plaintiff, v. BROOKS BARLOW, in his official and individual capacities; S. DUANE LEWIS, in his official and individual capacities; BERKELEY COUNTY SHERIFF'S OFFICE; BERKELEY ELECTRIC COOPERATIVE, INC.; TOWN OF MONCKS CORNER; and RICK OLLIC, in his official and individual capacities, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff, represented by counsel, filed this action in state court on May 19, 2021, alleging various causes of action arising under state law, as well as federal claims pursuant to 42 U.S.C. § 1983 for violations of her civil rights. ECF No. 1-2. The action was removed to this Court on June 21, 2021. ECF No. 1. With leave of the Court, Plaintiff filed a Second Amended Complaint on August 13, 2021. ECF No. 22.
Before the Court are two motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure: (1) a Motion to Dismiss filed by Defendants Brooks Barlow, Rick Ollic, and the Town of Moncks Corner (collectively, the “Moncks Corner Defendants”), ECF No. 26 (the “Moncks Corner Motion”); and (2) a Motion to Dismiss filed by Defendants Berkeley County Sheriff's Office (“BCSO”) and S. Duane Lewis (collectively, the “Sheriff Defendants”), ECF No. 28 (the “Sheriff Motion”). Plaintiff filed Responses in Opposition to each Motion. ECF Nos. 31 & 33. The Sheriff Defendants filed a Reply. ECF No. 35. The Motions are ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(f), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motions be granted, in part, and denied, in part.
LEGAL STANDARD
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
PLAINTIFF'S ALLEGATIONS
In her Second Amended Complaint, Plaintiff alleges that she is a thirty-four-year-old single mother who was working as a nurse until her arrest. ECF No. 22 at ¶ 9. On or about May 23, 2018, Defendants Barlow, Sheriff Lewis, Chief Ollic, Moncks Corner, and BCSO worked with a meter reader employed by Berkeley Electric Cooperative, Inc. (“BEC”) to enter the property of Plaintiff's neighbor, located at 114 and 124 Mimosa Drive, to search for marijuana without a warrant. Id. at ¶ 10. Plaintiff contends that the BEC meter-reader and BCSO deputies performed an illegal search of the neighbor's property at the instruction of BCSO's agents and Moncks Corner's agents. Id. During the search and seizure of the neighbor's property, Defendants asked to search Plaintiff's property. Id. at ¶ 11. After obtaining permission from Plaintiff, Barlow and BEC's employee searched Plaintiff's home located at 134 Mimosa Drive. Id. at ¶ 12. No evidence of marijuana was found on Plaintiff's property, and nothing was seized, but Plaintiff was arrested and incarcerated by Defendants BCSO and Moncks Corner, based on evidence and information they obtained through their search of the neighbor's property. Id. at ¶ 13. Agents of BCSO and Moncks Corner pressed and held charges against Plaintiff for three years and took and published mugshots of Plaintiff. Id. at ¶ 14.
On April 12, 2021, an assistant solicitor sent an email informing Plaintiff, “During a recent interview with employees of [BEC], I discovered DEU [Drug Enforcement Unit] instructed the meter reader to go on the defendant's property and search for marijuana without a warrant. I am dismissing all charges.” Id. at ¶ 16; ECF No. 22-1.
In her Second Amended Complaint, Plaintiff alleges thirteen causes of action against the Moncks Corner Defendants and the Sheriff Defendants: (I) a claim under 42 U.S.C. § 1983 for excessive force “in violation of the Fourth and/or Eighth and Fourteenth Amendments”; (II) a § 1983 claim for unlawful search and seizure in violation of the Fourth Amendment; (III) a § 1983 claim for abuse of process in violation of the Fourth and Fourteenth Amendments; and state law claims for (IV) negligence/gross negligence; (V) assault; (VI) battery; (VII) false imprisonment; (VIII) false arrest; (IX) malicious prosecution; (X) invasion of privacy; (XI) intentional/negligent infliction of emotional distress; (XII) slander/libel/defamation; and (XIII) conspiracy. ECF No. 22.
Although styled as one cause of action, Count XI includes two different theories of “infliction of emotional distress, ” each of which is addressed below.
DISCUSSION
In their Motion to Dismiss, the Moncks Corner Defendants seek dismissal of one of Plaintiff's claims alleged pursuant to 42 U.S.C. § 1983, and all of her state law claims. ECF No. 26. The Sheriff Defendants seek dismissal of all claims alleged against them, except for the civil rights claims alleged against Sheriff Lewis in his individual capacity pursuant to 42 U.S.C. § 1983. ECF No. 28-1.
I. Plaintiff's Federal Claims (Counts I - III)
A. Plaintiff's § 1983 Claim for Abuse of Process against the Moncks Corner Defendants (Count III)
The only § 1983 claim the Moncks Corner Defendants seek to dismiss is Plaintiff's Third Cause of Action, which she titles as a claim for Abuse of Process in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983. The Moncks Corner Defendants seek dismissal of this claim, arguing that Plaintiff has failed to allege sufficient facts to state a claim for abuse of process. ECF No. 26 at 4-5.
Although the Fourth Circuit has not explicitly analyzed the nature of an abuse of process claim under § 1983, district courts in the circuit, citing cases from other circuits, have held that abuse of process is, in effect, a denial of procedural due process. See Ballock v. Costlow, 430 F.Supp.3d 146, 159 (N.D. W.Va. 2019) (citing Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994); Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977)); see also Hines v. Johnson, No. 1:19CV515, 2020 WL 1516397, at *11 (M.D. N.C. Mar. 30, 2020).
In Count III, Plaintiff alleges that the Moncks Corner Defendants “violated Plaintiff's Fourth and Fourteenth Amendment protections to be free from malicious prosecution without probable cause and without due process when they worked in concert to secure false charges against her, resulting in her unlawful confinement and prosecution.” ECF No. 22 at ¶ 70. She alleges that she was arrested notwithstanding that no drugs or any evidence of criminal activity was found at her home and that “[a]ll evidence obtained from Plaintiff's neighbors' homes was obtained by an illegal search.” Id. at ¶ 71. Accordingly, she asserts that these Defendants “conspired and/or acted in concert to institute, procure and continue a criminal proceeding against Plaintiff without probable cause” and that the “procurement of prosecution against Plaintiff for the . . . false allegations was malicious, shocking, and objectively unreasonable in the light of the circumstances.” Id. at ¶ 72.
Although Plaintiff titles her Third Cause of Action as a claim for “Abuse of Process, ” this claim, as pled, essentially amounts to a malicious prosecution claim. A “malicious prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)). To state a claim for malicious prosecution, “a plaintiff must allege that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor.” Evans, 703 F.3d at 647.
Accepting Plaintiff's allegations as true, the undersigned concludes that Plaintiff has stated a claim for malicious prosecution in her Third Cause of Action. She alleges that the Moncks Corner Defendants arrested her without probable cause and that her criminal proceedings terminated in her favor in April 2021 when the solicitor dismissed all charges upon learning of the nature of the search of the neighbor's property. At this stage of the proceedings, these allegations are sufficient to state a claim for relief against the Moncks Corner Defendants, such that Plaintiff's Third Cause of Action should not be dismissed at this time.
B. Plaintiff's § 1983 Claims against BCSO and Sheriff Lewis (Counts I, II and III)
In her First, Second and Third Causes of Action, Plaintiff alleges claims pursuant to 42 U.S.C. § 1983 for civil rights violations. The Sheriff Defendants seek dismissal of these claims against BCSO and Sheriff Lewis in his official capacity, arguing that the § 1983 claims against them are barred pursuant to Eleventh Amendment immunity. They also seek dismissal of Count I against Sheriff Lewis in his individual capacity, but only insofar as that claim alleges a violation of the Eighth and Fourteenth Amendments. They do not seek dismissal of Count I, to the extent it alleges a violation of the Fourth Amendment, Count II or Count III against Sheriff Lewis in his individual capacity.
1. Claims Against BCSO and Sheriff Lewis, in his Official Capacity
Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its instrumentalities, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Accordingly, unless South Carolina has consented to suit or Congress has waived South Carolina's immunity pursuant to the Fourteenth Amendment, South Carolina (and its agencies) may not be sued in federal or state court. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67 (1989).
Congress has not abrogated the states' sovereign immunity under § 1983, id.; Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e) (“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. . . .”); see Pringle v. S.C. Ret. Sys., No. Civ.A. 2:06-3294-PMD, 2007 WL 295626, at *5 (D.S.C. Jan. 29, 2007).
Moreover, BCSO and Sheriff Lewis, in his official capacity, are considered instrumentalities of the state. “It is well-established in South Carolina that a sheriff's office is an agency of, and a sheriff ‘dominated by,' the state, such that a suit against the sheriff in his official capacity is a suit against the State.” Stewart v. Beaufort Cty., 481 F.Supp.2d 483, 492 (D.S.C. 2007) (citing Gulledge v. Smart, 691 F.Supp. 947 (D.S.C. 1988), aff'd 878 F.2d 379 (1989)). As such, the claims against BCSO and Sheriff Lewis-in his official capacity-are claims against the State of South Carolina itself. Id. (citing Carroll v. Greenville Cnty. Sheriff's Dept., 871 F.Supp. 844, 845-46 (D.S.C. 1994)); see Will, 491 U.S. 58 at 71 (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.”). As a result, the Eleventh Amendment bars Plaintiff's § 1983 claims against BCSO and Sheriff Lewis, in his official capacity. See Will, 491 U.S. at 71 (holding that neither a State nor its officials acting in their official capacities are “persons” amenable to suit under § 1983).
Plaintiff, citing case law from courts outside of the Fourth Circuit, argues that by removing the case to federal court, Defendants BCSO and Lewis waived sovereign immunity. ECF No. 33 at 3. The undersigned finds no merit to this argument and notes that the Fourth Circuit has rejected such arguments in recent years. As the Fourth Circuit reaffirmed last year, “[i]n this circuit, a state's removal of a suit to federal court waives sovereign immunity only if the state has consented to suit in its own courts.” Biggs v. N. Carolina Dep't of Pub. Safety, 953 F.3d 236, 241 (4th Cir. 2020) (citing Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005)); see also Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019) (“Nothing in these out-of-circuit cases makes us inclined to revisit Stewart; in any event, we are powerless to overturn Stewart.”), cert. denied, 140 S.Ct. 903 (2020). Because South Carolina has not consented to a § 1983 suit in state court, such a suit is barred in federal court, even following removal.
For the reasons stated above, the undersigned recommends dismissing the § 1983 claims alleged against BCSO and those alleged against Sheriff Lewis in his official capacity (Counts I, II and III).
2. Count I Claim against Sheriff Lewis, in his Individual Capacity
With respect to the § 1983 claims against Sheriff Lewis in his individual capacity, he seeks dismissal of Count I only to the extent that it alleges a violation of the Eighth and Fourteenth Amendments. Specifically, he contends that because all of Plaintiff's allegations stem from her arrest, “the applicable standard is the Fourth Amendment and Plaintiff's claims for a depr[i]vation of her Eighth and Fourteenth Amendment rights should be dismissed.” ECF No. 28-1 at 13. Plaintiff responds that she has a right to be protected from cruel and usual punishment and that her Fourteenth Amendment due process rights were violated by the prosecution of knowingly false charges and her unlawful confinement. ECF No. 33 at 10-11.
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Const. amend. VIII. “An examination of the history of the Amendment and the decisions of [the Supreme Court] construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes.” Ingraham v. Wright, 430 U.S. 651, 664 (1977) (emphasis added). Because the harm Plaintiff alleges occurred before any conviction, the undersigned finds that Plaintiff has failed to allege any facts to support an Eighth Amendment claim in her First Cause of Action.
Moreover, excessive force claims arising from an arrest are governed by the Fourth Amendment's prohibition on unreasonable seizures. The Fourteenth Amendment's “Due Process Clause does not constitute a catch-all provision that provides a remedy whenever a state actor causes harm.” Evans, 703 F.3d at 647 n.2 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998)). “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (internal quotation marks omitted). Because the Fourth Amendment provides “an explicit textual source” for excessive forces claims arising from an arrest, the Fourteenth Amendment provides no alternative basis for those claims.
For the foregoing reasons, the undersigned recommends that Plaintiff's First Cause of Action proceed against Sheriff Lewis in his individual capacity for alleged violations of the Fourth Amendment only.
II. Plaintiff's State Law Claims (Counts IV - XIII)
In her Fourth through Thirteenth Causes of Action, Plaintiff alleges ten claims arising under state law: (IV) negligence/gross negligence; (V) assault; (VI) battery; (VII) false imprisonment; (VIII) false arrest; (IX) malicious prosecution; (X) invasion of privacy; (XI) intentional/negligent infliction of emotion distress; (XII) defamation; and (XIII) conspiracy. ECF No. 22 at 13-19. The Moncks Corner Defendants and the Sheriff Defendants seek dismissal of all of Plaintiff's state law claims alleged against them, raising substantially the same arguments in support of dismissal in their respective motions: (1) that most of the state law claims are barred by the applicable statutes of limitations; (2) that Plaintiff's claim for malicious prosecution, invasion of privacy, and intentional/negligent infliction of emotion distress fail as a matter of law; and (3) that the individual Defendants are immune from suit for Plaintiff's state law claims. ECF Nos. 26 at 3-10, 28-1 at 5-14. The Sheriff Defendants also argue that the civil conspiracy claim should be dismissed as against them for failure to state a claim. ECF No. 28-1 at 10-11.
A. The South Carolina Tort Claims Act Governs Plaintiff's Claims
As an initial matter, the parties disagree whether Plaintiff's state law claims fall under the purview of the South Carolina Tort Claims Act (“SCTCA”), § 15-78-10 et seq. Defendants maintain that they do, ECF Nos. 26 at 6, 8-10, 28-1 at 5, while Plaintiff argues that they do not, ECF No. 31 at 3. The undersigned agrees with Defendants that the SCTCA applies to Plaintiff's state law claims.
The SCTCA “governs all tort claims against governmental entities and is the exclusive civil remedy available in an action against a governmental entity or its employees.” Flateau v. Harrelson, 584 S.E.2d 413, 416 (S.C. Ct. App. 2003); see S.C. Code Ann. § 15-78-20(b). All governmental entities, defined as the State and its political subdivisions, may be held liable for their torts as a private individual would be liable, subject to the limitations and exemptions of the Act. Hawkins v. City of Greenville, 594 S.E.2d 557, 563 (S.C. Ct. App. 2004) (citing S.C. Code Ann. §§ 15-78-30(d), 15-78-40).
The SCTCA “is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employee's official duty.” S.C. Code Ann. § 15-78-200. “For a government employee to be acting within the scope of his official duty or employment, the employee must be (1) ‘acting in and about the official business of the government entity,' and (2) ‘performing official duties.'” Wade v. Berkeley County, 498 S.E.2d 684, 688 (S.C. 1998) (quoting S.C. Code § 15-78-30(i))).
In her Second Amended Complaint, Plaintiff alleges that BCSO and Moncks Corner are political subdivisions of the State of South Carolina. ECF No. 22 at ¶¶ 2-3. She also alleges that during the time relevant to the occurrences giving rise to this action, the employees and agents of BCSO and Moncks Corner were acting “within the scope of their officially assigned and/or compensated duties.” Id. As such, the undersigned concludes that Plaintiff's state law claims against Defendants are subject to the SCTCA. See Flateau, 584 S.E.2d at 417 (finding SCTCA applied to plaintiffs' claims where complaints alleged torts committed by government employees acting within the scope of their official duty).
B. Affirmative Defenses Based on the SCTCA
In their Motions, Defendants seek dismissal of Plaintiff's state law claims based on a number of affirmative defenses arising under the SCTCA. “The provisions of the [SCTCA] establishing limitations on and exemptions to the liability of the State, its political subdivisions, and employees, while acting within the scope of official duty, must be liberally construed in favor of limiting liability of the State.” Hawkins, 594 S.E.2d 557, 563 (S.C. Ct. App. 2004). However, the “governmental entity asserting the [SCTCA] as an affirmative defense bears the burden of establishing a limitation upon liability or an exception to the waiver of immunity.” Id. Moreover, “a motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); see Goldfarb, 791 F.3d at 508 (“While no absolute bar exists, a motion to dismiss under Rule 12(b)(6) does not typically resolve the applicability of defenses to a well-pled claim.”); Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (stating that a motion to dismiss under Rule 12(b)(6) “does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses”). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense clearly appear on the face of the complaint.” Goodman, 494 F.3d at 464 (emphasis in original) (internal quotation marks and bracket omitted). With these standards in mind, the undersigned considers Defendants' affirmative defenses.
1. The Statute of Limitations Defense
The Sheriff Defendants argue that Plaintiff's claims for negligence, false arrest, false imprisonment, assault, battery, conspiracy, and defamation should be dismissed as being filed past the applicable two-year statute of limitations. ECF No. 28-1 at 5. The Moncks Corner Defendants argue that all of Plaintiff's state law claims, except for her claim for malicious prosecution, are time-barred. ECF No. 26 at 3-4.
South Carolina law provides a two-year statute of limitations for “an action for libel, slander, or false imprisonment.” S.C. Code Ann. § 15-3-550. Similarly, claims governed by the SCTCA are generally subject to a two-year limitations period:
Except [as to certain persons under disability], any action brought pursuant to [the SCTCA] is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered; provided, that if the claimant first filed a claim pursuant to this chapter then the action for damages based upon the same occurrence is forever barred unless the action is commenced within three years of the date the loss was or should have been discovered.S.C. Code Ann. § 15-78-110. To trigger the three-year statute of limitations under § 15-78-110, a party must follow the procedure outlined in § 15-78-80, which requires the filing of a verified claim. Flateau, 584 S.E.2d at 418. Plaintiff neither alleges nor argues that she filed a verified claim pursuant to S.C. Code Ann. § 15-78-80. Therefore, the SCTCA's two-year statute of limitations is applicable to this action. See id.
Plaintiff argues, however, that the SCTCA's statute of limitations should not apply in this case because each state law cause of action, except for the negligence/gross negligence claim, contains an element of intent. ECF No. 33 at 5. Thus, she reasons, if the Court accepts the allegations in the Second Amended Complaint as true, Defendants “acted with the intent to harm Plaintiff, which would exclude them from any immunity granted to them by the SCTCA pursuant to § 15-78-70(b).” Id. at 10.
Plaintiff's argument conflates the concept of immunity with the overall applicability of the statute. Section 15-78-70(b) only “lifts the immunity normally enjoyed by governmental employees if they act outside the scope of their employment or their actions constitute fraud, malice, an intent to harm, or a crime of moral turpitude.” Price v. Town of Atl. Beach, No. 4:12-CV-02329-MGL, 2013 WL 5945728, at *5 (D.S.C. Nov. 6, 2013) (quoting Flateau, 584 S.E.2d at 419). It does not, however, alter the general rule that the SCTCA “constitutes the exclusive remedy for any tort committed by an employee of a governmental entity” in the scope of official duty. S.C. Code Ann. § 15-78-70(a); see Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005). More particularly, “[a]bsolutely nothing in subsection (b) references a limitations period and, as part of the general Tort Claims Act statutory scheme, it is subject to the Act's statute of limitations as prescribed in S.C. Code. Ann. § 15-78-110.” Flateau, 584 S.E.2d at 419. Accordingly, the undersigned finds no merit to Plaintiff's argument that the SCTCA's statute of limitations does not apply to Plaintiff's state law claims.
Plaintiff alternatively argues that if the SCTCA's two-year statute of limitations applies, it did not start to run until April 12, 2021, the date the assistant solicitor sent the email notifying Plaintiff that he was dismissing the charges. ECF Nos. 31 at 3; 33 at 4. According to Plaintiff, she did not and could not have known about the problems with the search at the time of her arrest on May 23, 2018, or any time before the April 2021 email. Id. at 4-5. Thus, Plaintiff argues, the SCTCA's statute of limitations did not start to run until April 2021, “the date the loss was or should have been discovered, ” and she timely filed her claims a month later. Id. at 4 (quoting S.C. Code Ann. § 15-78-110). As stated above, for Defendants to prevail on their affirmative defense at this stage of the proceedings, all facts necessary to show that Plaintiff knew or should have known about her claims more than two years before she filed her Complaint must clearly appear on the face of the Second Amended Complaint. See Goodman, 494 F.3d at 464.
a. Claims for Assault (Count V) and Battery (VI)
Plaintiff's allegations regarding her Assault and Battery claims show that the actions about which she complains were taken wholly within the scope of the individual Defendants' official duties and occurred on or near May 23, 2018. See ECF No. 22 at ¶¶ 77-79 (assault claim alleging that the “conduct and acts undertaken by Defendants, as alleged herein, placed Plaintiff in reasonable fear of imminent bodily harm, which was, in fact, actually realized upon Plaintiff's body”); Id. at ¶¶ 81-85 (battery claim alleging that “Defendants, without cause or provocation, willfully, unlawfully, and in reckless disregard of Plaintiff's rights, battered and/or caused battery upon Plaintiff against Plaintiff's will with great force and violence”). Moreover, there are no allegations in the Second Amended Complaint from which to infer that Plaintiff neither knew nor should have known of her reasonable fear of bodily harm or of the battery with great force and violence at the time they occurred in May 2018. Thus, the undersigned finds that all facts necessary to the affirmative defense clearly appear on the face of the complaint and agrees with Defendants that the statute of limitations on the assault and battery claims began to run on or about May 23, 2018, and expired almost a year before Plaintiff filed her lawsuit. See Goodman, 494 F.3d at 464. Accordingly, the undersigned recommends that Counts V and VI be dismissed as against the Moncks Corner Defendants and the Sheriff Defendants.
b. Remaining State Law Claims
With respect to the remaining eight state law claims, the undersigned cannot say that all facts necessary to the statute-of-limitations affirmative defense clearly appear on the face of the Second Amended Complaint. With respect to her defamation claim, Plaintiff alleges that Defendants defamed her reputation by publicizing her false arrest without probable cause on Facebook, ECF No. 22 at ¶¶ 105-06, but she does not allege when this alleged publication occurred. Accordingly, it is not clear from Plaintiff's current allegations when she knew or should have known that she had a defamation claim. Because not all facts necessary to the statute-of-limitations affirmative defense clearly appear on the face of the Second Amended Complaint, the undersigned recommends denying Defendants' Motions to dismiss Count XII on this basis. See Goodman, 494 F.3d at 464.
The remaining state law claims are: (IV) negligence/gross negligence; (VII) false imprisonment; (VIII) false arrest; (IX) malicious prosecution; (X) invasion of privacy; (XI) intentional/negligent infliction of emotion distress; (XII) defamation; and (XIII) conspiracy.
As for the remaining state law claims, they appear to be based, at least in part, on harms flowing from the allegedly intentional improper search of the neighbor's property. See, e.g., ECF No. 22 at ¶ 74(c)-(d) (alleging negligence “in failing to train and supervise their employees in dealing with the rights of property owners . . . [and] regarding proper entry onto property”); Id. at ¶¶ 87, 90 (alleging false imprisonment and false arrest where there “was no probable cause or evidence indicating criminal activity by Plaintiff to justify her arrest and confinement”); Id. at ¶¶ 97-98 (alleging invasion of privacy based on intentional arrest without probable cause and search of person and property without permission); Id. at ¶ 101 (alleging infliction of emotional distress based on search and seizure of Plaintiff without evidence or probable cause); Id. at ¶ 108 (alleging conspiracy based on Defendants working together to violate Plaintiff's civil rights through an illegal search).
Moreover, there appears to be a factual dispute regarding whether Plaintiff knew or should have known about these causes of action before she was notified in April 2021 about the improper search of her neighbor's property. Plaintiff argues that it “would have been impossible” for her to know about the defective search at the time of her arrest, ECF No. 31 at 3, and there are no allegations in the Second Amended Complaint suggesting that Plaintiff knew about the nature of the search of the neighbor's property before April 2021. The Sheriff Defendants note in their Reply that Plaintiff's argument “apparently means that [she] knew and/or thought she was properly arrested and imprisoned until she got the email, ” because if she were “innocent of the arrest charges, she knew or should have known that on the date of arrest.” ECF No. 35 at 3. This may be so, but what Plaintiff knew or should have known at the time of her arrest presents a factual dispute, which cannot be resolved on a 12(b)(6) motion. Accordingly, the undersigned recommends that the Court deny Defendants' Motions based on the statute of limitations as to Plaintiff's claimsfor negligence/gross negligence (IV), false imprisonment (VII), false arrest (VIII), invasion of privacy (X), intentional/negligent infliction of emotional distress (XI), slander/libel/defamation (XII), and conspiracy (XIII).
Defendants did not move to dismiss Plaintiff's claim for malicious prosecution (IX) on the basis of the statute of limitations.
The Moncks Corner Defendants cite Ferrara v. Hunt for the proposition that all of Plaintiff's claims, except malicious prosecution, arose as of the date of arrest. ECF No. 26 at 3-4 (citing Ferrara v. Hunt, No. CIV.A. 0:09-02112-PM, 2010 WL 5479655, at *6 (D.S.C. July 19, 2010), report and recommendation adopted, No. 0:09-CV-02112-RMG-PJ, 2010 WL 5479652 (D.S.C. Dec. 29, 2010). The undersigned notes, however, that Ferrara was decided on a motion for summary judgment, where the Court considered evidence outside of the pleadings.
2. The Immunity Defense
a. Individual Defendants' Immunity to Suit
Defendants argue that Sheriff Lewis, Chief Ollic, and Barlow are not proper parties to the state law claims, invoking the immunity provided to government employees under the SCTCA. Plaintiff argues, however, that the state law claims against the individual Defendants should not be dismissed because each state cause of action, except for the negligence/gross negligence claim, contains an element of intent. ECF No. 33 at 9-10. Thus, she reasons, if the Court accepts the allegations in the Second Amended Complaint as true, the individual Defendants “acted with the intent to harm Plaintiff, which would exclude them from any immunity granted to them by the SCTCA pursuant to § 15-78-70(b).” Id. at 10.
“[U]nder the SCTCA, for a given tort, either the governmental entity or the employee is liable but not both.” Newkirk v. Enzor, 240 F.Supp.3d 426, 436 (D.S.C. 2017). Generally, when a person brings an action against a governmental entity pursuant to the SCTCA, the person “shall name as a party defendant only the agency or political subdivision for which the employee was acting.” S.C. Code Ann. § 15-78-70(c) (emphasis added); see also Newkirk, 240 F.Supp.3d at 436. Therefore, in most cases, an “employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable and the plaintiff must sue the governmental agency itself.” Newkirk, 240 F.Supp.3d at 436.
Courts in this District have held that, for purposes of an SCTCA claim, the sheriff's office is the only appropriate Defendant, not the sheriff in his official capacity. See, e.g., Dean v. McKinney, No. 8:17-CV-2088-TMC, 2019 WL 10787931, at *3 & n.3 (D.S.C. Mar. 29, 2019); Drayton v. Cty. of Charleston, No. CIV.A. 2:14-3488-RMG, 2015 WL 4937358, at *2-3 (D.S.C. Aug. 17, 2015) (finding that sheriff, in his official capacity, and the sheriff's office “are essentially the same defendant” and dismissing sheriff without prejudice); Blakely v. Kershaw Cty. Sherfiff's Off., No. 3:10-CV-707-JFA, 2012 WL 3306338, at *4 (D.S.C. Aug. 13, 2012) (finding sheriff's office to be proper defendant for state law negligence claim and dismissing sheriff in his official capacity). The same logic applies to municipal officers in their official capacities. Thus, the undersigned recommends dismissing all of Plaintiff's state law claims alleged against the Individual Defendants in their official capacities.
However, Plaintiff has also alleged her claims against the individual Defendants in their individual capacities, which warrants a different analysis. “While the [SCTCA] is the exclusive remedy for injury caused by state employees in the scope of official duty, it does not grant an employee personal ‘immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005) (emphasis in original) (quoting S.C. Code Ann. § 15-78-70(b)); see also S.C. Code Ann. § 15-78-60(17) (“The governmental entity is not liable for a loss resulting from . . . employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.”). Thus, a state employee can, in these limited circumstances, be held personally liable by a federal court for some intentional torts committed within the scope of his employment. Smith, 394 F.Supp.2d at 792; see Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (finding that the governmental entity is not liable under the Act, and the employee is personally liable, when the employee's conduct falls within the exceptions listed in section 15-78-70(b)).
As Plaintiff concedes, her negligence claim does not include allegations of actual malice or intent to harm. Similarly, the Slander/Libel/Defamation claim does not contain any allegations of intent or malice, and negligent infliction of emotional distress (“NIED”) does not include an element of intent or malice. As such, Plaintiff's sole remedy for these claims is against the government entities, and the negligence, NIED, and defamation claims should be dismissed as against Barlow, Lewis, and Ollic in their individual capacities. See Smith, 394 F.Supp.2d at 792.
However, the remaining state claims each include allegations of intent to harm or malice by the individual Defendants. See, e.g., ECF No. 22 at ¶¶ 84, 86, 89, 93, 97, 98, 101. As such, the undersigned cannot, at the 12(b)(6) stage, conclude that the individual Defendants are immune from suit in their individual capacities under the SCTCA for the remaining state law claims for (VII) false imprisonment; (VIII) false arrest; (IX) malicious prosecution; (X) invasion of privacy; (XI) intentional infliction of emotion distress; and (XIII) conspiracy. See Smith, 394 F.Supp.2d at 792; see Bellamy, 2020 WL 2559544, at *6.
b. Claim for Malicious Prosecution (Count IX)
The Moncks Corner Defendants and the Sheriff Defendants argue that Plaintiff's malicious prosecution claim (Count IX) should be dismissed based on SCTCA immunity pursuant to S.C. Code Ann. § 15-78-60(23). Plaintiff responds that because she has alleged that the prosecution of Plaintiff was malicious and intentional, Defendants are not entitled to immunity under the SCTCA as their actions fall under the exception in § 15-78-70(b). As with the statute of limitations defense, a claim of immunity is an affirmative defense. Thus, for the immunity defense to be decided on a 12(b)(6) motion, all facts necessary to the affirmative defense must clearly appear on the face of the Second Amended Complaint. See Goodman, 494 F.3d at 464.
“To maintain an action for malicious prosecution, a plaintiff must establish: (1) the institution or continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3) termination of such proceedings in [the] plaintiff's favor; (4) malice in instituting the proceedings; (5) lack of probable cause; and (6) resulting injury or damage.” Pallares v. Seinar, 756 S.E.2d 128, 131 (S.C. 2014) (internal citation omitted). The SCTCA explicitly lists exceptions to its waiver of immunity, including that a “governmental entity is not liable for a loss resulting from . . . [the] institution or prosecution of any judicial or administrative proceeding.” S.C. Code Ann. § 15-78-60(23). Because the first element of a malicious prosecution claim requires the institution or continuation of original judicial proceedings, “[i]t is fairly clear from the plain language of the statute, particularly § 15-78-60(23), that the legislature intended to exclude claims for malicious prosecution from the waiver of immunity for governmental entities in the [SCTCA].” Thompson v. City of Columbia, No. 3:05-cv-1605, 2005 WL 8164911, at *4 (D.S.C. July 21, 2005).
As stated above, the Second Amended Complaint clearly alleges that BCSO and Moncks Corner are governmental entities. Accordingly, the undersigned finds that BCSO and Moncks Corner are immune from suit on the malicious prosecution claim, such that Count IX should be dismissed as against them. See Bellamy v. Horry Cty. Police Dep't, No. 419CV03462RBHKDW, 2020 WL 2559544, at *5 (D.S.C. Apr. 30, 2020), report and recommendation adopted, No. 419CV03462RBHKDW, 2020 WL 2556953 (D.S.C. May 20, 2020) (granting motion to dismiss malicious prosecution claim against police department).
However, for the reasons stated in the preceding section, dismissal of the malicious prosecution claim as against Defendants Barlow, Lewis, and Ollic in their individual capacities is premature at this stage. Plaintiff alleges that “Defendants exhibited malice in the initiation” of the proceedings against Plaintiff and that they lacked probable cause. ECF No. 22 at ¶¶ 93-94 (emphasis added). Based on these allegations, the undersigned recommends denying Defendants' Motions to Dismiss the malicious prosecution claim as against Defendants Barlow, Lewis, and Ollic in their individual capacities, and permit Plaintiff to pursue discovery on this issue. See Bellamy, 2020 WL 2559544, at *6 (denying motion to dismiss malicious prosecution claim against individual officer); see also S.C. Code Ann. § 15-78-70(b).
C. Sufficiency of the Factual Allegations
Defendants' remaining arguments seek dismissal of certain causes of action for failure to allege factual allegations sufficient to state a claim for relief.
1. Claim for Negligent/Intentional Infliction of Emotional Distress (Count XI)
Count XI asserts a claim for negligent/intentional infliction of emotional distress. ECF No. 22 at 18 ¶¶ 100-03. Regarding her intentional infliction of emotional distress (“IIED”) claim, Defendants argue that the SCTCA does not allow a plaintiff to recover for IIED. S.C. Code Ann. § 15-78-30(f) (“‘Loss' . . . does not include the intentional infliction of emotional harm.”). As to BCSO and Moncks Corner, as well as the individual Defendants in their official capacities, the undersigned agrees and recommends that this claim be dismissed. See Ward v. City of N. Myrtle Beach, 457 F.Supp.2d 625, 647 (D.S.C. 2006) (dismissing IIED claim alleged against government entity).
To establish a claim for IIED, a plaintiff must prove the following: (1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from defendant's conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community; (3) defendant's actions caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was severe so that no reasonable man could be expected to endure it. Argoe v. Three Rivers Behavioral Ctr. & Psychiatric Solutions, 697 S.E.2d 551, 555 (S.C. 2010); Hansson v. Scalise Builders of S.C., 650 S.E.2d 68, 70 (S.C. 2007); see Park v. Se. Serv. Corp., 771 F.Supp.2d 588, 591-92 (D.S.C. 2011).
However, as explained above, the SCTCA “does not grant an employee immunity from suit if it is proved that his conduct was not within the official scope of his employment, or he acts with actual malice, or he has an intent to harm.” Daniels v. City of N. Charleston, No. CIV.A. 2:12-0319-DCN, 2012 WL 3877710, at *6 (D.S.C. Aug. 9, 2012), report and recommendation adopted, No. CA 2:12-319 DCN BM, 2012 WL 3880078 (D.S.C. Sept. 6, 2012). Moreover, Plaintiff's Second Amended Complaint alleges that Defendants Barlow, Lewis, and Ollic intentionally engaged in conduct that would cause her severe emotional distress. ECF No. 22 at ¶ 101. Therefore, at this stage and based on the allegations in the Second Amended Complaint, the undersigned cannot conclude that the individual defendants are immune from suit for IIED in their individual capacities. See Daniels, 2012 WL 3877710, at *6 (finding that IIED claim against officers in their individual capacities should not be dismissed at the 12(b)(6) stage); Smith, 394 F.Supp.2d at 792 (concluding that because plaintiff's IIED claim alleged and required a showing of actual malice and intent to harm, the court had jurisdiction to hear plaintiff's IIED claim as against defendants in their individual capacities). Accordingly, the undersigned recommends that the IIED claim proceed to discovery against Barlow, Lewis, and Ollic in their individual capacities.
In South Carolina, the tort of negligent infliction of emotional distress (“NIED”) “is limited to bystander recovery.” Stewart v. State Farm Mut. Auto. Ins. Co., 533 S.E.2d 597, 603 (S.C. Ct. App. 2000); see Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985) (adopting a cause of action for NIED and defining the limits of the NIED action); see also Doe v. Greenville Cty. Sch. Dist., 651 S.E.2d 305, 307 (S.C. 2007) (explaining that Kinard instructed that an NIED action be “strictly limited to the ‘bystander liability' scenario”).
To set forth an NIED claim, Plaintiff must allege facts showing the following elements: (a) the negligence of the defendant caused death or serious physical injury to another; (b) the plaintiff bystander was in close proximity to the accident; (c) the plaintiff and the victim were closely related; (d) the plaintiff contemporaneously perceived the accident; and (e) the plaintiff's emotional distress must both manifest itself by physical symptoms capable of objective diagnosis and be established by expert testimony. Doe, 651 S.E.2d at 307 (citing Kinard, 336 S.E.2d at 467). In this instance, Plaintiff's claims, as alleged in the Second Amended Complaint, are for injuries she suffered directly, not as a bystander, and she does not allege any facts related to the death or physical injury of a third party. Accordingly, she has not alleged a cause of action for NIED, such that the NIED claim should be dismissed as against all Defendants.
2. Claim for Invasion of Privacy (Count X)
Plaintiff's Tenth Cause of Action asserts a claim for Invasion of Privacy. “In South Carolina, three separate and distinct causes of action can arise under the rubric of invasion of privacy: (1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs.” Snakenberg v. Hartford Cas. Ins. Co., 383 S.E.2d 2, 5 (S.C. Ct. App. 1989). Defendants and Plaintiff appear to agree that Plaintiff's claim is based on the third form of invasion of privacy-wrongful intrusion into private affairs. See ECF Nos. 26 at 7; 28-1 at 8; 31 at 6.
To state a claim for wrongful intrusion into private affairs, Plaintiff must allege facts showing: (1) an intrusion; (2) into that which is private; (3) which is substantial and unreasonable; and (4) intentional. Snakenberg, 383 S.E.2d at 6. Regarding the first prong, an intrusion may consist of “watching, spying, prying, besetting, overhearing, or other similar conduct.” Id. To satisfy the second prong, the intrusion on Plaintiff “must concern those aspects of [her]self, h[er] home, h[er] family, h[er] personal relationships, and h[er] communications which one normally expects will be free from exposure to the defendant.” Id.
Defendants argue that Plaintiff's Second Amended Complaint does not allege any facts constituting “watching, spying, prying, besetting, overhearing, or other similar conduct, ” or any facts tending to show an intrusion into any aspect of her life as required for a claim of invasion of privacy. Indeed, they argue, Plaintiff's own factual allegations contradict and provide no support for her claim that a search of her property amounted to an Invasion of Privacy. Plaintiff responds that although she “does not dispute that Plaintiff granted permission for Moving Defendants to search her house, she did not grant Moving Defendants permission to seize her person or search her person subsequent to her arrest.” ECF No. 31 at 6. She further argues that “Moving Defendants' search of her person subsequent to her arrest was certainly an intrusion into her privacy which was substantial, unreasonable and intentional.” Id.
Accepting the allegations in the Second Amended Complaint as true and drawing all reasonable inferences in Plaintiff's favor, the undersigned finds that Plaintiff has not alleged sufficient facts to state a claim against the Sheriff Defendants or the Moncks Corner Defendants for invasion of privacy. There are no facts showing that Defendants engaged in any intrusive conduct-such as watching, spying, prying, besetting, overhearing, or other similar conduct-into aspects of Plaintiff or her home, family, personal relationships or communications that Plaintiff normally would expect to be free from exposure to Defendants. Plaintiff does not allege any facts showing that she had any expectation of privacy in her neighbor's property. Moreover, while she alleges that Defendant Barlow searched her home, she also alleges that she granted him permission to do so, such that it would not be reasonable to infer that she expected her home would be free from exposure to Defendant Barlow in that instance. Id. With respect to the search of her person subsequent to arrest, Plaintiff has not cited, and the undersigned has not found, any case law supporting her argument that such a search amounts to an invasion of privacy. Thus, it does not appear that that type of “intrusion” falls under any of the categories that South Carolina courts have found to be an invasion of privacy. Accordingly, the undersigned recommends that Count X be dismissed as against the Moncks Corner Defendants and the Sheriff Defendants.
3. Sheriff Defendants' Motion to Dismiss the Conspiracy Claim (Count X)
Finally, the Sheriff Defendants move to dismiss Plaintiff's conspiracy claim. To state a claim for civil conspiracy, Plaintiff must plead facts sufficient to establish “(1) the combination or agreement of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the commission of an overt act in furtherance of the agreement, and (4) damages proximately resulting to the plaintiff.” Paradis v. Charleston Cty. Sch. Dist., 861 S.E.2d 774, 780 (S.C. 2021), reh'g denied (Aug. 18, 2021).
Plaintiff “must plead additional facts in furtherance of the conspiracy separate and independent from other wrongful acts alleged in the complaint, and the failure to properly plead such acts will merit the dismissal of the claim.” Hackworth v. Greywood at Hammett, LLC, 682 S.E.2d 871, 875 (S.C. Ct. App. 2009), overruled on other grounds by Paradis, 861 S.E.2d 774. Stated another way, “‘[w]here the particular acts charged as a conspiracy are the same as those relied on as the tortious act or actionable wrong, [P]laintiff cannot recover damages for such act or wrong, and recover likewise on the conspiracy to do the act or wrong.'” Todd v. S.C. Farm Bureau Mut. Ins. Co., 278 S.E.2d 607, 612 (S.C. 1981) (quoting 15A C.J.S. Conspiracy § 33, at 718), overruled on other grounds by Paradis, 861 S.E.2d 774; see Coker v. Norwich Com. Grp., Inc., No. CV 3:20-03071-MGL, 2021 WL 4037472, at *5-6 (D.S.C. Sept. 3, 2021). Moreover, “[s]ince civil conspiracy is an intentional tort, an intent to harm . . . remains an inherent part of the analysis.” Paradis, 861 S.E.2d at 780 n.9; see Jinks v. Sea Pines Resort, LLC, No. 9:21-CV-00138-DCN, 2021 WL 4711408, at *3 (D.S.C. Oct. 8, 2021) (granting motion to dismiss civil conspiracy claim and explaining that because “[c]ivil conspiracy requires a specific intent to injure the plaintiff[, ] . . . [s]ome evidence that the alleged conspirators ‘acted with malice towards' the plaintiff is required”) (internal citations omitted).
The Sheriff Defendants argue that Plaintiff's claim for civil conspiracy fails as a matter of law and should be dismissed as Plaintiff has failed to allege any additional acts separate and independent from those alleged in her other causes of action. ECF No. 28-1 at 11. Plaintiff responds that while she has alleged similar facts in her cause of action for conspiracy as her other causes of action, this is because all the causes of action arose from the same events. ECF No. 33 at 8. She further argues that the purpose of the rule in Todd and other such cases-that additional acts in furtherance of the conspiracy must be pleaded-is to prevent the recovery for tortious acts twice, and she maintains that her claim should not be dismissed at this stage in case she cannot recover under her other causes of action. Id. at 8-9. Plaintiff does not cite any cases wherein a court allowed a conspiracy claim to proceed, despite finding that the plaintiff did not plead additional acts in furtherance of the conspiracy.
The conspiracy claim is the last Count in Plaintiff's Second Amended Complaint. ECF No. 22 at ¶¶ 107-09. It incorporates all preceding allegations in the complaint, Id. at ¶ 107, alleges that “Defendants worked together to violate the Plaintiff's civil rights through an illegal search, arrest, incarceration, and prosecution of the Plaintiff, ” Id. at ¶ 108, and alleges that the conspiracy resulted in damages to Plaintiff, Id. at ¶ 109.
The undersigned agrees with the Sheriff Defendants that these allegations are insufficient to state a claim for civil conspiracy against them. Because Plaintiff does not “plead additional facts in furtherance of the conspiracy separate and independent from other wrongful acts alleged in the complaint, ” dismissal of the civil conspiracy claim is merited. See Hackworth, 682 S.E.2d at 875 ; see also Jinks, 2021 WL 4711408, at *3 (finding that Paradis did not abolish the requirement to plead additional facts and finding that plaintiff's claim failed because she did not allege that defendant acted in furtherance of the conspiracy in a manner separate and independent from her other causes of action); Coker, 2021 WL 4037472, at *6 (granting motion to dismiss civil conspiracy claim upon finding that plaintiff “merely reincorporated his previous claims and added conclusory allegations the Individual Defendants were engaged in a civil conspiracy”). Accordingly, the undersigned recommends that the civil conspiracy claim be dismissed without prejudice as against the Sheriff Defendants.
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that the Moncks Corner Motion (ECF No. 26) and the Sheriff Motion (ECF No. 28) be GRANTED, in part, and DENIED, in part. Specifically, the undersigned recommends the following:
(1) That Counts I, II, and III be dismissed as against BCSO and Lewis in his official capacity;
(2) That Counts IV (Negligence) and XII (Defamation) be dismissed as against Ollic, Lewis, and Barlow;
(3) That Counts V (Assault), VI (Battery), X (Invasion of Privacy), and XI (Negligent Infliction of Emotional Distress) be dismissed as against all Moncks Corner Defendants and Sheriff Defendants;
(4) That Counts VII (False Imprisonment) and VIII (False Arrest) be dismissed as against Lewis, Ollic, and Barlow in their official capacities;
(5) That Counts IX (Malicious Prosecution) and XI (Intentional Infliction of Emotional Distress) be dismissed as against BCSO and Moncks Corner, and as against the individual Defendants in their official capacities; and
(6) That Count XIII (Conspiracy) be dismissed as against BCSO and Sheriff Lewis, and as against Ollic and Barlow in their official capacities.
Accordingly, if this Recommendation is adopted, only the following claims will remain and proceed to discovery:
(a) Counts I, II, and III (§ 1983 claims) against Sheriff Lewis in his individual capacity and the Moncks Corner Defendants;
(b) Count IV (Negligence/Gross Negligence) against BCSO and Moncks Corner;
(c) Counts VII (False Imprisonment) and VIII (False Arrest) against BCSO, Moncks Corner, and Barlow, Lewis, and Ollic in their individual capacities only;
(d) Counts IX (Malicious Prosecution) and XI (IIED only) against Barlow, Lewis, and Ollic in their individual capacities only;
(e) Count XII (Defamation) against BCSO and Moncks Corner; and
(f) Count XIII (Conspiracy) against Moncks Corner and Ollic and Barlow in their individual capacities only.
As set forth above, Count I against Sheriff Lewis in his individual capacity is only under the Fourth Amendment.
IT IS SO RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
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 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).