Opinion
C. A. 5:24-1171-MGL-SVH
05-23-2024
Regina Prioleau, Plaintiff, v. Officer Jermaine Wallace, Holly Hill Police Department, Town of Holly Hill, and Orangeburg County Sheriff's Office, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge.
Regina Prioleau (“Plaintiff”) has sued Officer Jermaine Wallace (“Wallace”), Holly Hill Police Department and the Town of Holly Hill (collectively “Holly Hill Defendants”), as well as the Orangeburg County Sheriff's Office (“OCSO”) concerning an incident that occurred on March 14, 2021. Plaintiff alleges that on that date she was assaulted by another person and that Wallace failed to intervene.
This matter comes before the court on the motions of Holly Hill Defendants and OCSO's to dismiss and to strike. [ECF Nos. 20, 21, 24, 25].
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Wallace, who is proceeding pro se, of the relevant procedures and the possible consequences if he failed to respond adequately to the pending motions. [ECF No. 29]. Wallace has failed to respond, and the time to do so has expired.
These motions having been fully briefed [see ECF Nos. 36, 38], the matter is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant the pending motions and also dismiss this case in full.
I. Factual and Procedural Background
Plaintiff alleges that on or about March 14, 2021, the following occurred:
Defendant Jermaine Wallace of the Holly Hill Police Department was dispatched to 190 Catamount Rd. Holly Hill S.C. 29059 to respond to an incident in progress.
Upon arrival at the incident location officer Wallace refused to carry out his duties and sat in his vehicle while the defendant (sic) brutally attacked and injured by individuals
The officer stated that “he was afraid” and despite being dispatched to the incident witnessing the crime refused to carry out his duties allowing the plaintiff to be injured.
The incident location is within the County of Orangeburg under the Jurisdiction of Orangeburg County Sheriff's Office and Holly Hill Police Department under a mutual aid agreement.[ECF No. 4 ¶¶ 8-11 (errors in original)].
The court takes judicial notice that 190 Catamount Rd., Holly Hill, SC, 29059, is not within the city limits of the town of Holly Hill, as “geographical information is especially appropriate for judicial notice.” United States v. Johnson, 726 F.2d 1018, 1021 (4th Cir. 1984); see United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (noting that “[g]eography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial and thus it is within the general definition contained in Fed.R.Evid. 201(b)”). OCSO and Holly Hill Defendants argue that it is undisputed that “[t]he events of the Amended Complaint took place in Orangeburg County, outside of the jurisdiction of the Town of Holly Hill and its Police Department.” [ECF No. 38 at 2].
Plaintiff asserts the following causes of action: (1) violation of her Fourth and Fourteenth Amendment rights when “Defendant failed to crime in progress,” “failed to render aid,” and “[f]ailed to protect victim or informants of crime,” (2) battery, (3) violation of her First and Fourteenth Amendment rights “to free speech and to criticize the government,” also asserting that there was a “custom, policy or practice of the defendant department to inadequately supervise and train its officers, including defendant Wallace,” (4) violation of civil rights pursuant to 42 U.S.C. § 14141, and (5) violation of the South Carolina Tort Claims Act, SC Code Ann. § 1578-10, et seq. (“SCTCA”). See id. (errors in original).
The causes of action are misnumbered in the amended complaint. [ECF No. 4]. The court employs the correct numbering above.
On March 25, 2024, Wallace, proceeding pro se, filed an answer to Plaintiff's amended complaint, providing as follows:
I Jermaine Wallace is a citizen of the United States of America and a resident of the County of Orangeburg, State of South Carolina. I have never been a police officer in any town or State. On or about March 14th, 2021, Regina Prioleau brought her daughter and another young lady to jump my daughter Alayshia
Wallace at the time she was only 13 years of age, she was home with her friend Diamond Jenkins alone when the fight took place, neither her mother nor I was there My wife wanted charges to be brought against Regina Prioleau and her granddaughter and the other young lady, it's been three years, and this is the first letter to be received and everything is false and incorrect. Regina Prioleau is not the victim, she does all the victimize, what she did to my daughter was cruel and unjust, now she is scamming to get money from the police department. My wife 911 call is on record, my daughter emergency paperwork is on record with the hospital and her police report in on record with the Orangeburg County Sheriff's office ....[ECF No. 16].
Thereafter, OCSO and Holly Hill Defendants each filed a motion to dismiss and motion to strike [ECF Nos. 20, 21, 24, 25]. In these motions and in their answers filed in response to Plaintiff's amended complaint, OCSO and Holly Hill Defendants represent that Wallace was not employed by these entities during the relevant time. [ECF No. 22 ¶ 9, ECF No. 26 ¶ 5, ECF No. 20 at 2 (Holly Hill Defendants asserting “again that it did not and does not employ an officer named Jermaine Wallace”), ECF No. 24 at 2 (OCSO asserting “again that it did not and does not employ an officer named Jermaine Wallace.”), see also ECF No. 38 at 2 (“Plaintiff has named and served an individual who is not affiliated with the Town of Holly Hill or its police department.”)].
In response to these motions, Plaintiff conceded (1) to the dismissal without prejudice of OCSO, (2) that the pending motions to strike, seeking to strike portions of the amended complaint concerning punitive damages and attorney fees, should be granted, and (3) to the dismissal of claims brought pursuant to the SCTCA, Plaintiff's second and fifth causes of action. [ECF No. 36]. Plaintiff argues, however, that “Wallace, at all times relevant to the lawsuit, was a certified police office with Holly Hill Police Department, which is a department within the Town of Holly Hill,” id. at 2, and does not address representations made by the other parties stating otherwise.
Plaintiff also does not dispute OCSO and Holly Hill Defendants' motions with respect to her fourth cause of action. [See ECF No. 36]. As stated by this court, “Plaintiff may not pursue a private cause of action under 42 U.S.C. § 14141.” Boyd v. South Carolina, C/A No. 7:19-867-BHH-JDA, 2019 WL 2061495, at *3 (D.S.C. Mar. 28, 2019) (collecting cases), report and recommendation adopted, C/A No. 7:19-867-BHH, 2019 WL 2057961 (D.S.C. May 9, 2019), aff'd, 773 Fed.Appx. 678 (4th Cir. 2019).
On May 15, 2024, the undersigned issued an order to show cause, directing Plaintiff's counsel to show cause why representations they made to the court through their filings, that Wallace is or was a police officer with the Holly Hill Police Department, did not violate Fed.R.Civ.P. 11(b). [ECF No. 41].Counsel timely responded to the show cause order representing that based on the applicable police report concerning the alleged incident, the names Jermaine Wallace, the owner of the relevant property, and Jermaine Smith, the correct name for the police officer, “were inadvertently confused during the drafting phase.” [ECF No. 43 at 6 (citing ECF No. 43 at 17)]. Addressing why the error was not corrected, counsel admits knowledge that the wrong defendant had been named early in the case, but argues “[i]n that the motion to dismiss was pending, it made logical sense to me to handle this substitution to correct the name once the Court resolves the pending Motion to Dismiss.” Id. at 7.
Fed.R.Civ.P. 11 requires an attorney to certify that, to the best of the attorney's knowledge, “the factual contentions [in a submission] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed.R.Civ.P. 11(b)(3); Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir. 1991). Rule 11 “imposes on any party who signs a pleading, motion, or other paper . . . an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing.” Bus. Guides, Inc. v. Chromatic Commc'ns Enters., 498 U.S. 533, 551 (1991).
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the 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).
B. Analysis
As stated above, in response to the pending motions, Plaintiff concedes that the pending motions to strike, seeking to strike portions of the amended complaint concerning punitive damages and attorney fees, should be granted, and concedes to the dismissal without prejudice of OCSO as a defendant and to the dismissal of claims brought pursuant to the SCTCA. Plaintiff further does not, and cannot, dispute that she cannot bring a cause of action under 42 U.S.C. § 14141.
Thus, the only remaining claims subject to the pending motions are Plaintiff's claims one and three against Holly Hill Defendants and the relevant police officer, both brought pursuant to 42 U.S.C. § 1983, alleging violations of Plaintiff's First, Fourth, and Fourteenth Amendment rights for the relevant police officer's failure to protect Plaintiff from a third party and Holly Hill Defendants' failure to properly train the relevant police officer.
Plaintiff's complaint is devoid of any allegations in support of her First Amendment claims. Additionally, the Fourth Amendment was incorporated by the Due Process Clause of the Fourteenth Amendment and therefore applies to state actors. See Mapp v. Ohio, 367 U.S. 643, 655 (1961); United States v. Lull, 824 F.3d 109, 115 (4th Cir. 2016).
To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege he was injured 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). Only “persons” may act under color of state law; therefore, a defendant in a § 1983 action must qualify as a “person.”
As already stated, Plaintiff has failed to properly identify or serve with the summons and complaint the relevant officer in this case. Additionally, groups of individuals in a building do not qualify as a “person” who can act under color of state law for purposes of § 1983. See Kane v. Beaufort Cty Sheriffs Dep't, C/A No. 9:14-508-RMG, 2015 WL 404570, at *6 n.2 (D.S.C. Jan. 29, 2015) (noting that “[a] department is not a person subject to suit under § 1983”).
Even assuming Plaintiff had correctly named the proper defendants, her allegations concerning the relevant police officer's failure to act fail to state a claim for relief. It is well-established that “the Fourteenth Amendment was intended to protect ‘the people from the State, not to ensure that the State protected them from each other.'” See Turner v. Thomas, 930 F.3d 640, 645 (4th Cir. 2019) (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196 (1989)). In other words, the “State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” See DeShaney, 489 U.S. at 197 (explaining that the State is not required to provide its citizens with particular protective services).
Because Plaintiff has failed to properly allege an underlying constitutional violation against the relevant police officer, her failure to train claim against Holly Hill Defendants fails, as well. See, e.g., Evans v. Perry, 578 Fed.Appx. 229, 233 (4th Cir. 2014).
In contrast, “courts have concluded that an officer possesses an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers.” Randall v. Prince George's Cnty., Md., 302 F.3d 188, 203 (4th Cir. 2002) (citations omitted)).
DeShaney recognized two exceptions to this general rule, one of which arises “[w]hen the state itself creates the dangerous situation that resulted in a victim's injury.” Pinder v. Johnson, 54 F.3d 1169, 1177 (4th Cir. 1995); see also Doe v. Rosa, 795 F.3d 429, 438 (4th Cir. 2015). The Fourth Circuit recognized in these cases, that when “the state is not merely accused of a failure to act . . . it becomes much more akin to an actor itself directly causing harm to the injured party.” Pinder, 54 F.3d at 1177. In other words, “[l]iability does not arise when the state stands by and does nothing in the face of danger.” Stevenson ex rel. Stevenson v. Martin Cty. Bd. of Educ., 3 Fed.Appx. 25, 31 (4th Cir. 2001) (citing DeShaney, 489 U.S. at 203)).
The other exception involves “a special relationship” between the individual and the state: when the state “so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs . . . it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” Pinder, 54 F.3d at 1174 (citing DeShaney, 489 U.S. at 200). In this context, the Fourth Circuit generally requires some form of custody-the “confinement of the injured party[-] to trigger the affirmative duty.” Id. at 1175.
Here, Plaintiff did not plead or allege any facts to show any custodial relationship or any state-created danger in the amended complaint-the only exceptions provided to the Supreme Court's holding in DeShaney. Plaintiff has cited no case law, nor is the court aware of any, imposing on an officer the affirmative duty to intervene in an assault occurring between two private citizens not in police custody. See, e.g., Horton v. Flenory, 889 F.2d 454, 457 (3d Cir. 1989) (“DeShaney certainly stands for the harsh proposition that even though state officials know that a person is in imminent danger of harm from a third party, the Fourteenth Amendment imposes upon those state officials no obligation to prevent that harm.”); Jones v. City of Phila., 185 F.Supp.2d 413 (E.D. Pa. 2001) (dismissing for failure to state a claim plaintiff's substantive due process cause of action alleging police officers observed assault on plaintiff but did nothing to aid her); cf. Ames v. Smith, C/A No. ELH-22-0808, 2023 WL 3901274, at *13 (D. Md. June 7, 2023) (“Officers are not required physically to intervene when it may place them in an unsafe situation.”).
Also, as argued by Holly Hill Defendants and the OCSO:
The events of the Amended Complaint took place in Orangeburg County, outside of the jurisdiction of the Town of Holly Hill and its Police Department. See ¶11, Amended Complaint. (ECF: 4). The Court may take judicial notice that 190 Catamount Road, Holly Hill, SC is not within the City Limits of the Town of Holly Hill. (ECF: 4, ¶8). Plaintiff does not dispute this. Plaintiff further does not cite any authority which would compel any officer of the Town of Holly Hill Police Department to “run to the danger,” as opposed to operating in an assisting role outside of his jurisdiction. Further, Plaintiff fails to cite any authority to support her argument that Plaintiff has a constitutional right to be protected from injury by a criminal third party, which is directly contrary to the holding in DeShaney.[ECF No. 38 at 2].
Accordingly, the undersigned recommends the district judge grant all pending motions, dismissing Holly Hill Defendants and OCSO from this action. Further, because Plaintiff was not entitled to the relevant police officer's intervention under the Constitution, the undersigned recommends the district judge dismiss this case in full, dismissing Plaintiff's federal claims with prejudice where her claims are not “completely devoid of merit” but where defects in her federal claims cannot be cured by amendment. See Shing v. MD Developmental Disabilities Admin., 698 Fed.Appx. 70, 71-72 (4th Cir. 2017).
Because Plaintiff has failed to properly name or serve the relevant police officer in this case, there has been no opportunity for that officer to either appear in this case or move for dismissal any claims asserted against him. Notwithstanding, “[w]here the face of a complaint plainly fails to state a claim for relief, a district court has ‘no discretion' but to dismiss it.'” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.1990); Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 130 (5th Cir. 1959) (observing that a motion to dismiss for failure to state claim “allows of no discretion in the usual sense” because “a complaint is either good or not good”)).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Holly Hill Defendants and OCSO's motions to dismiss and motions to strike [ECF Nos. 20, 21, 24, 25] and, additionally, dismiss this case in full.
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
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).