Opinion
C. A. 4:23-cv-04564-JD-KDW
06-25-2024
Marion C. Vereen, as the Administrator for the Estate of Tristan Vereen, Plaintiff, v. Whitney Blake Benton, in his individual capacity, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Marion C. Vereen, as the administrator for the estate of Tristan Vereen, initiated this lawsuit on September 7, 2023. ECF No. 1. Marion Vereen alleges that State Trooper Whitney Blake Benton, the named Defendant in this case, shot and killed Tristan Vereen in connection with a traffic stop. ECF No. 1-4. The Complaint alleges several causes of action against Defendant Benton, including a claim brought pursuant to 42 U.S.C. § 1983, as well as several state tort law claims.
On December 8, 2023, Defendant Benton filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 16. Plaintiff then filed both an Amended Complaint, ECF No. 19, as well as a Response to Defendant's Motion to Dismiss, ECF No. 21, on December 27, 2023.Defendant filed a Reply on January 3, 2024. ECF No. 22. Pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters in this case and submit findings and recommendations to the District Court. This matter is now ripe for review.
Plaintiff technically filed both a Response, ECF No. 20, as well as a “Corrected” Response, ECF No. 21. The undersigned has treated the Corrected Response as the operative pleading to consider.
Because Plaintiff filed an Amended Complaint, the undersigned finds that Defendant's Motion to Dismiss, ECF No. 16, should be rendered moot. However, the undersigned acknowledges that despite having filed an Amended Complaint, Plaintiff also filed a Response, and Defendant a Reply, regarding the state law tort claims. Because Defendant's arguments brought forth in both the initial Motion, as well as his Reply, would still apply to the allegations within the Amended Complaint, the undersigned will briefly address his argument.
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). 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 Rainier, 238 F.3d 567, 577 (4th Cir. 2001). Courts are required to construe a complaint liberally and presume all factual allegations within the complaint are true, and all reasonable inferences made in favor of the non-moving party. Hishon v. King, 467 U.S. 69, 73 (1984). A motion to dismiss should not be granted unless “it appears to a certainty that the plaintiff would be entitled to no relief under any circumstances which could be proved in support of his claim.” Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557.
Here, the sole argument made by Defendant Benton is that the claims brought pursuant to the South Carolina Tort Claims Act (the “SCTCA”) must be dismissed because, as alleged, Defendant cannot be named individually in this suit. The SCTCA is the exclusive remedy for any tort committed by an employee of a governmental entity. S.C. Code Ann. § 15-78-70(a). The SCTCA provides that when an employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as the party defendant. S.C. Code Ann. § 15-78-70(c). Defendant argues the SCTCA requires Plaintiff to name only the “agency or political subdivision” for which the employee was acting, rather than the employee individually. ECF No. 16 at 2. Defendant further argues that because Plaintiff alleges multiple times within his Complaint that Defendant was “acting in the course and scope of his employment under color of law,” (and indeed Plaintiff alleges the same in his Amended Complaint), Plaintiff is not able to bring any state tort law claims against him individually. ECF No. 16 at 3-4; see also ECF Nos. 1; 19. The Amended Complaint makes one addition to Plaintiff's allegation (albeit the language is added in multiple places), which is that Plaintiff now alleges, “at all times Defendant Benton acted with actual malice and the intent to harm Mr. Vereen.” See ECF No. 19, ¶ 38.
Plaintiff also added similar language, “Defendant's Benton's acts were carried out in bad faith with malicious intent to harm,” to Plaintiff's claim for wrongful death, false imprisonment, intentional infliction of emotional distress, battery, and assault. See ECF No. 19, ¶¶ 65; 75; 79; 84; 87.
In his Response, Plaintiff argues that because all state causes of action allege that Defendant acted maliciously, with actual malice, and with the intent to harm Tristan Vereen, Defendant Benton is not immune from suit in his individual capacity. ECF No. 21 at 3-4. As noted by Plaintiff, the original Complaint alleges that Defendant Benton's acts were carried out in bad faith and with malicious intent to harm. See ECF No. 21 at 2; see ECF No. 1. However, despite Plaintiff's filing of an Amended Complaint, and despite Plaintiff's argument that Defendant's Motion to Dismiss was rendered moot, Defendant Benton still filed a Reply, arguing that Plaintiff's Response does not refute the fact that Defendant Benton may not be sued individually under the SCTCA because it is the exclusive remedy for a tort committed by an employee of a governmental entity. ECF No. 22 at 5. Further, Defendant Benton argues that under the SCTCA, an employee may not be personally liable unless “it is proved, not alleged that his conduct was not within the scope of his official duties or that it constituted fraud, actual malice, intent to harm, or a crime involving moral turpitude,” citing S.C. Code Ann. § 15-78-70(b).
Courts have consistently interpreted the SCTCA as requiring a plaintiff to “sue the agency for which the employee works, rather than suing the employee directly” if a plaintiff claims a government employee acted negligently in the official performance of one's duties. Faulkner v. York County School District, No. 0:21-cv-02090-JMC, 2022 WL 673684, *5 (D.S.C. March 7, 2022) (quoting Flataeu v. Harrelson, 584 S.E.2d 413, 418 (S.C. Ct. App. 2003)). An employee of a governmental entity is immune from suit for tortious acts committed within the scope of his or her official duties. Id. However, the SCTCA further provides, “[n]othing in this chapter may be construed to give an employee of a governmental entity 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.” S.C. Code Ann. § 15-78-70(b) (emphasis added).
Defendant Benton suggests that regardless of whether Plaintiff alleges Defendant acted with actual malice or the intent to harm, because Plaintiff concedes that Defendant Benton was acting within the scope of his employment, any claim brought pursuant to the SCTCA cannot be brought against him individually. Case law suggests otherwise. In Warthen v. Midgett, the court considered an argument brought by defendants who argued that because the plaintiff in that case “agreed and stipulated” that the individual deputy defendants were acting within the scope of employment, the claims against them individually must be dismissed. Warthen v. Midgett, No. 2:16-cv-00931-DCN, 2017 WL 1190869, at *2 (D.S.C. Mar. 31, 2017). In rejecting this argument, the court explained:
“[t]he primary flaw in defendants' argument is that it fails to recognize that there are two ways a plaintiff's tort claim against a government employee can escape the scope of the SCTCA. . . it can arise from conduct that ‘was not within the scope of [the employee's] official duties,' or it can arise from conduct that ‘constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.'”Id. at *3 (citation omitted). Thus, the court reasoned that even if the parties stipulated that the deputies were acting within the scope of employment, the court still had to determine whether the alleged actionable conduct was done with actual fraud, actual malice, or an intent to harm. Id. Similarly, the court has explained in the summary judgment context that “the text of the relevant SCTCA exception is disjunctive: [t]he state is immune either if the employee acted outside the scope of his duties or if his conduct constitutes actual fraud, actual malice, intent to harm, or moral turpitude.” Newkirk v. Enzor, 240 F.Supp.3d 426, 436 (D.S.C. 2017) (emphasis in original). In other words, an employee acting within the scope of his employment whose conduct constitutes actual fraud, actual malice, intent to harm, or moral turpitude, may still be individually liable, if such conduct is proven. While Defendant Benton argues that Plaintiff has not proven Defendant Benton acted with actual malice or bad faith, and his claims must therefore fail, at the 12(b)(6) stage, it is enough that Plaintiff alleges as such, along with allegations of conduct that, if proven, could support such a finding.
For the foregoing reasons, the undersigned recommends that the court deny Defendant's Motion to Dismiss, ECF No. 16.
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
Post Office Box 2317
Florence, South Carolina 29503
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).