Opinion
2:21-cv-02843-DCN-MGB
12-06-2021
Tessa R.R.G.C. Childress, Plaintiff, v. City of North Charleston, et al., Defendants.
ORDER REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES JUDGE
This is a civil action under 42 U.S.C. § 1983. Plaintiff, appearing pro se, filed this action in state court and it was removed to federal court on September 2, 2021. (Dkt. No. 1.) This matter is before the Court on: (1) a Motion to Dismiss filed by Defendants Charleston County Sheriff's Office (“CCSO”) and Deputy Harger (Dkt. No. 6); (2) a Motion to Dismiss filed by Defendants City of North Charleston, P.O. John O'Connell, P.O. S. Fortier, Sgt. Wilson, and P.O. Carwile (Dkt. No. 7); (3) Plaintiff's Motion to Stay (Dkt. No. 45); (4) Plaintiff's Motion for Protective Order (Dkt. No. 48); and (5) Plaintiff's Motion to Appoint Counsel (Dkt. No. 42).
Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge. Under this authority, the undersigned is authorized: (1) to review the Motions to Dismiss and submit a recommendation to the District Judge; (2) to review Plaintiff's Motion to Stay, Motion for Protective Order, and Motion to Appoint Counsel and to issue a final ruling on these motions. For the following reasons, the undersigned recommends denying in part and granting in part the Motions to Dismiss. The undersigned further grants in part and denies in part Plaintiff's Motion to Stay, grants Plaintiff's Motion for Protective Order, and denies Plaintiff's Motion to Appoint Counsel.
BACKGROUND
A. Factual Background
This lawsuit arises from Plaintiff's arrest for alleged misuse of 911. The Complaint alleges that on July 11, 2019, Defendants arrested Plaintiff “without Miranda Rights being issued and without a court order or a Court Warrant.” (Dkt. No. 1-1 at 10.) Plaintiff alleges Defendants dragged her out of her home in North Charleston in handcuffs “to be further violently brutalized by the Defendants, particularly Defendant North Charleston Police Officer John O'Connell.” (Id.) She alleges that she called the “local North Charleston emergency 911 telephone number because North Charleston police officer John O'Connell had begun to yell at Plaintiff and verbally threatened Plaintiff while he was inside Plaintiff's residence.” (Id. at 18.) She alleges Defendant O'Connell “administered undue force to handcuffed Plaintiff while violently thrusting Plaintiff into the backseat of a North Charleston Police Vehicle.” (Id. at 10-11.) Plaintiff alleges O'Connell did not administer her Miranda Rights when she entered his car and “continued oral communications via verbalized American English grammar invoking Plaintiff's responses without having an attorney present.” (Id.) Plaintiff alleges she was “ankle cuffed by Charleston County Sheriff without being informed of Plaintiff's Miranda rights” and was denied medical services “at the scene of the police brutality located at the employee parking lot entrance easement of Charleston County Public Library.” (Id. at 23-24.) Plaintiff alleges she was then sent to the Charleston County Sheriff Al Cannon Detention Center “without being informed of Plaintiff's Miranda Rights.” (Id. at 24.) She alleges the “intake staff of the detention center didn't have any warrant and said they would make the reason for me being it into one [sic].” (Id.) According to Plaintiff, she met with the detention center nurse, but the nurse did not take any photographs of Plaintiff's injuries. (Id.)
According to Plaintiff, she “had previously called the non-emergency telephone number, on July 11, 2019, due to violations of a South Carolina State Law labeled South Carolina Underground Facility Damage Prevention Act [Prevention Act].” (Id. at 18.) She alleges a Charleston County Sheriff's officer instructed her to call this number after she “emailed photographs of the violations of the [Prevention Act] to the Charleston County Sheriff and to the City of North Charleston Police Department.” (Id.) Plaintiff alleges she “had been verbally harassed and threatened, with threats of death, by one of the people who had for several days previous to July 11, 2019, been violating and who was continuing to violate the [Prevention Act] on July 11, 2019.” (Id. at 18-19.) Plaintiff alleges “local law enforcement agencies . . . still have not contacted Plaintiff to appropriately manage the violations of the [Prevention Act] nor regarding the threats of death reported via email directly to the local law enforcement agencies of Charleston County, South Carolina and the City of North Charleston.” (Id. at 19.)
“The Act creates a centralized system allowing companies and homeowners to make one call to notify utility companies (referred to as “operators” under the Act) of a planned excavation or demolition and provide a mechanism by which operators can protect their facilities from damage during demolitions and excavations.” 2019 WL 5669047, at *1 (S.C.A.G. Oct. 23, 2019); see S.C. Code Ann. § 58-36-10 et seq.
Plaintiff alleges that prior to July 11, 2019, she had “been attacked by local law enforcement on four (4) different dates of incident.” (Id. at 19.) She alleges that the July 11, 2019 “police officers' brutality” “re-injured” injuries she suffered from a prior police brutality incident on March 4, 2015. (Id. at 20-21.) Plaintiff alleges she was “still recovering from an outpatient procedure from the previous day July 10, 2019 wherein Plaintiff was fully sedated . . . for injuries of Plaintiff's left hip that was completely dislocated by police officers of the same North Charleston Police Department on March 4, 2015, at the same residential property of Plaintiff.” (Id. at 23.)
Plaintiff appears to allege that Defendants' actions violated the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. (Id. at 11-15.) She brings claims under 42 U.S.C. § 1983 for violation of her constitutional rights as well as a claim for kidnapping under 18 U.S.C. § 1201 and a claim for “conspiracy against rights” under 18 U.S. Code § 241. (Id. at 1516.) With respect to the alleged constitutional violations, the undersigned liberally construes the Complaint as alleging claims for excessive force, unlawful search and seizure, and general due process violations for failure to provide Plaintiff with her Miranda rights. Plaintiff also appears to bring state law claims for kidnapping, conspiracy, false imprisonment, and assault and battery under South Carolina law. (Id. at 8.)
Notably, Defendants' Motions to Dismiss do not address Plaintiff's claims for excessive force and unlawful search and seizure.
B. Procedural Background
Defendants removed this civil rights action to federal court on September 2, 2021. (Dkt. No. 1.) On September 9, 2021, a Motion to Dismiss was filed by Defendants CCSO and Deputy Harger (Dkt. No. 6) and a Motion to Dismiss was filed by Defendants City of North Charleston (“City”), P.O. John O'Connell, P.O. S. Fortier, Sgt. Wilson, and P.O. Carwile (Dkt. No. 7). On September 10, 2021, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if she failed to adequately respond to the motions. (Dkt. No. 23.) From October 4-12, 2021, Plaintiff filed three response briefs to the pending Motions to Dismiss. (Dkt. Nos. 18; 20; 21.) On October 26, 2021, the Court granted Plaintiff's Motion for an Extension of Time to respond to the Motions to Dismiss. (Dkt. Nos. 15; 16; 31; see also Dkt. No. 20 at 8.) Specifically, the Court found that to the extent Plaintiff wished to file any additional material in response to Defendants' Motions to Dismiss, her response was due by November 15, 2021. (Dkt. No. 31 at 11.) Plaintiff filed another response brief to the Motions to Dismiss on November 12, 2021. (Dkt. No. 43.) Defendants have not filed any reply briefs to their motions. The motions are ripe for review.
On November 15, 2021, Plaintiff filed a Motion to Appoint Counsel (Dkt. No. 42) and on November 17, 2021, Plaintiff filed a Motion to Stay (Dkt. No. 45). Defendants responded to both motions on November 22, 2021 (Dkt. Nos. 46; 47). Plaintiff has not filed reply briefs to these motions. On November 23, 2021, Defendants filed a Motion for Protective Order. (Dkt. No. 48.) Plaintiff's motions are ripe for review.
STANDARD OF LAW
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)).
Because Plaintiff is representing herself, these standards must be applied while liberally construing her filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
A. Defendants' Motions to Dismiss (Dkt. Nos. 6; 7)
The Motion to Dismiss filed by Defendants CCSO and Deputy Harger argues for dismissal of the claims against them based on the following: (1) Deputy Harger in his official capacity and CCSO are entitled to Eleventh Amendment immunity; (2) Plaintiff failed to plead the personal involvement of Deputy Harger in her § 1983 claims; (3) Plaintiff fails to state a claim upon which relief can be granted; (4) Plaintiff brings claims based on a criminal statute with no private right of action; (5) Deputy Harger is not a proper party to any state law claims; and (6) punitive damages are not recoverable against CCSO or Deputy Harger in his official capacity. (Dkt. No. 6-1.)
The Motion to Dismiss filed by Defendants P.O. John O'Connell, P.O. S. Fortier, Sgt. Wilson, P.O. Carwile, and the City argues for dismissal of the claims against them based on the following: (1) Plaintiff has failed to state a claim based on the alleged Miranda violations; (2) Plaintiff brings claims based on a criminal statute with no private right of action; (3) the individual Defendants are not proper parties to any state law claims; and (4) punitive damages are not recoverable against the City. (Dkt. No. 7-1.)
The undersigned considers the arguments raised in both motions, below.
1. Eleventh Amendment Immunity
Defendants CCSO and Deputy Harger assert that Plaintiff's § 1983 claims against Deputy Harger in his official capacity and CCSO are barred under the Eleventh Amendment. (Dkt. No. 6 at 2-4.) Plaintiff disputes this assertion. (Dkt. Nos. 20 at 1-4; 21 at 1.) The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity,” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because “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 . . . [and] is no different from a suit against the State itself,” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted).
The Fourth Circuit and courts within this district have long held that sheriffs in South Carolina are state officials for purposes of Eleventh Amendment immunity. See Cromer, 88 F.3d at 1332 (suit against Sheriff of Greenville County: “. . . Sheriff Brown is an arm of the State”), aff'd mem., 878 F.2d 379 (4th Cir. 1989)); see also Edwards v. Lexington Cnty. Sheriff's Dep't, 386 S.C. 285, 287 n.1, 688 S.E.2d 125, 127 n. 1 (2010) (“[U]nder South Carolina law, the sheriff and sheriff's deputies are State, not county, employees.”) (citations omitted). Further, “Sheriff's Departments in South Carolina are state agencies, not municipal departments.” Childress v. Charleston Cty. Sheriff's Office, No. 2:13-cv-1008-SB, 2013 WL 3270642, at *4 (D.S.C. June 26, 2013), aff'd, 540 Fed. App'x. 191 (4th Cir. 2013) (citing Edwards v. Lexington Cnty. Sheriff's Dep't, 386 S.C. 285, 287 n.1, 688 S.E.2d 125, 127 n.1 (2010) (“[U]nder South Carolina law, the sheriff and sheriff's deputies are State, not county, employees.”); Allen v. Fid. and Deposit Co., 515 F.Supp. 1185, 118991 (D.S.C. 1981) (County cannot be held liable for actions of deputy sheriff because deputy sheriffs serve at pleasure of the Sheriff, not the County), aff'd, 694 F.2d 716 (4th Cir. 1982) [Table]. Accordingly, both CCSO and Deputy Harger, in his official capacity, are considered arms of the State for purposes of Eleventh Amendment immunity.
Further, to the extent Plaintiff asserts that CCSO can be sued under § 1983 for municipal liability, such a claim fails. “Since [CCSO] is an arm of the state, and not a political subdivision or municipality, theories of municipal liability discussed in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) . . ., i.e., failure to train or supervise, have no application here. Specifically, the ‘Court's holding in Monell was limited to local government units which are not considered part of the State for Eleventh Amendment purposes . . .” McElrath v. S.C. Dep't of Corr./Golden, No. 5:13-cv-317-MGL, 2013 WL 1874852, at *3 (D.S.C. May 3, 2013) (quoting Quern v. Jordan, 440 U.S. 332, 338 (1979) (internal citations and quotation marks omitted)); see also Warthen, 2017 WL 9250328, at *3 (finding Berkeley County Sheriff's Office is not a person capable of being sued under § 1983 and therefore recommending dismissal of the § 1983 claims asserted against it); Rex v. W. Virginia Sch. of Osteopathic Med., 119 F.Supp.3d 542, 553 (S.D. W.Va. 2015) (“Although Monell held that municipalities were subject to § 1983 liability where the municipality's custom or policy caused the constitutional harm, that holding has not been extended to other entities that are arms of the state.”).
However, by voluntarily removing a case to federal court, a defendant waives any immunity from suit in federal court with respect to any claims it otherwise would have been subject to in state court. Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 619 (2002) (“A State's voluntary appearance in federal court waives sovereign immunity for claims where a state has consented to suit in its own courts for such claims); see also Cameron v. Cox, No. 10-1278, 2011 WL 1235308, at * 4 (D.S.C. Jan. 21, 2011), adopted by, 2011 WL 1212177 (D.S.C. Mar. 30, 2011). Through enactment of the SCTCA, South Carolina has generally consented to suit for tort claims filed against it in state court. Briggs v. South Carolina Dept. of Corrections, No. 13-cv-1348, 2014 WL 1278173 at *21 (Mar. 27, 2014).
Such voluntary removal does not waive a defendant's immunity to any § 1983 claims, however. See Passaro v. Virginia, 893 F.3d 243, 248 (4th Cir. 2019) (rejecting argument that the Commonwealth waived its sovereign immunity to a Title I claim by removing case to federal court); Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005) (holding that where a state retains its sovereign immunity from suit in state court, it does not lose that immunity by removing the case to federal court).
For the foregoing reasons, the undersigned recommends that any § 1983 claims against CCSO be dismissed from this action and any § 1983 claims brought against Deputy Harger in his official capacity also be dismissed.
2. Personal Involvement of Deputy Harger
Defendants CCSO and Deputy Harger next argue that any § 1983 claims brought against Deputy Harger in his individual capacity must fail because Plaintiff has failed to allege “any personal involvement by Dep. Harger whatsoever as all of her claims are against the Charleston County Sheriff.” (Dkt. No. 6-1 at 6.) “It is well-established that a government official cannot be held liable under § 1983 solely on the basis of respondeat superior.” See, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). “The law is clear that personal participation of a defendant is a necessary element of a Section 1983 claim against government officials in their individual capacities.” Blessing v. Scaturo, No. 6:16-cv-1832-BHH-KFM, 2017 WL 3575734, at *9 (D.S.C. July 28, 2017) (citing Trulock v. Free, 275 F.3d 391, 402 (4th Cir. 2001)), adopted by, 2017 WL 3535104 (D.S.C. Aug. 17, 2017). “In order for an individual to be liable under Section 1983, it must be ‘affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights, [and the defendant] must have had personal knowledge of and involvement in the alleged deprivation of [the plaintiff's] rights '” Id. (quoting Harbeck v. Smith, 814 F.Supp.2d 608, 627 (E.D. Va. 2011)); see also Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (in order for an individual defendant to be held liable pursuant to § 1983, it must be “affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights”). “The Fourth Circuit further described this requirement as ‘designed to ensure that the serious burdens of defending against this sort of lawsuit are vested upon a department supervisor only when the complaint plausibly suggests that the supervisor engaged in his or her own misconduct.'” Id. (quoting Evans v. Chalmers, 703 F.3d 636, 661 (4th Cir. 2012)).
Here, Plaintiff responds that she “included the C.C. Sheriff's deputy in Plaintiff's narrative of the detailed movements of each Police Officer (named defendants) which includes C.C. Sheriff's deputy Harger.” (Dkt. No. 18-1 at 4.) Plaintiff states that after she was arrested by Defendant P.O. O'Connell, “Defendant Harger showed up in C.C. Sheriff's deputy cruiser, put ankle cuffs on Plaintiff and denied Plaintiff access to medical providers to check Plaintiff at the scene.” (Id. at 12.) In her response brief, Plaintiff also asserts that
Harger arrived at the scene on the Public Library property, as Defendant O'Connell was beating Plaintiff inside the police cruiser commanded [sic] Plaintiff stand. Then Harger affixed metal ankle cuffs onto Plaintiff, without reason and in conjunction with O'Connell's brutality while Defendant O'Connell watched. Harger caused and played a role in causing the continuation of excessive force, assault and battery with police brutality, false arrest, false imprisonments and denial of medical attention at the scene without Miranda Rights being verbalized to Plaintiff by named or unnamed defendants and while all the defendants together were conspiring against the rights of Plaintiff. Defendant Harger did not submit a written ticket nor any type of warrant to me nor to the Detention Center.(Dkt. No. 20 at 4.)
The Complaint contains similar allegations against a “Charleston County Sheriff,” rather than Defendant Harger. Specifically, the Complaint alleges that after Plaintiff was arrested by Defendant P.O. O'Connell, “Plaintiff was ankle cuffed by Charleston County Sheriff without being informed of Plaintiff's Miranda rights by the Charleston County Sheriff who also denied ankle [sic] and handcuffed Plaintiff medical services upon request of Plaintiff at the scene of the police brutality.... Plaintiff also requested medical services while Plaintiff was in the Charleston County Sheriff vehicle and Plaintiff was denied medical.” (Dkt. No. 1-1 at 23-24.)
Given the allegations in the Complaint against the Charleston County Sheriff and Plaintiff's representations that this individual was Deputy Harger, the Court finds Plaintiff has sufficiently alleged Deputy Harger's personal involvement in the deprivation of her constitutional rights. Accordingly, the § 1983 claims brought against Deputy Harger cannot be dismissed on this basis.
3. Claim for Violation of Plaintiff's Constitutional Rights under the Fifth and Sixth Amendments
In both Motions to Dismiss, Defendants argue that Plaintiff has failed to sufficiently allege a § 1983 claim based on the violation of her Miranda rights under the Fifth and Sixth Amendments. (Dkt. Nos. 6-1 at 6-8; 7-1 at 3-5.) Defendants argue that this claim fails because, inter alia, Plaintiff does not allege that any self-incriminating statements made in violation of Miranda were ever used against her in subsequent criminal proceedings. Plaintiff responds that “Miranda rights are part of due process” and that the “requirement of Miranda-type warnings before custodial interrogation is constitutionally based.” (Dkt. No. 20 at 4-6; see also Dkts. No. 21 at 5-6; 43 at 1-3.)
As an initial matter, Plaintiff's allegation of a Miranda rights violation under the Fifth Amendment does not support a § 1983 claim for damages. “While Plaintiff's allegations might suffice to prevent the use in a criminal trial of any statements he made to Defendants after requesting counsel, violations of Miranda procedures do not form the basis of a § 1983 claim for damages.” Erwin v. Rodriguez, No. 1:17-cv-00103-FDW, 2017 WL 4052167, at *2 (W.D. N.C. Sept. 13, 2017) (emphasis in original) (citing Chavez v. Martinez, 538 U.S. 760, 772 (2003) (“Chavez's failure to read Miranda warnings to Martinez did not violate Martinez's constitutional rights and cannot be grounds for a § 1983 action.”)); see also Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999) (“[F]ailing to follow Miranda procedures triggers the prophylactic protection of the exclusion of evidence, but does not violate any substantive Fifth Amendment right such that a cause of action for money damages under § 1983 is created.”).
“That is so because Miranda safeguards are ‘not themselves rights protected by the Constitution, but [are] instead measures to insure that the right against compulsory selfincrimination [is] protected.'” Erwin, 2017 WL 4052167, at *2 (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)). “Thus, in Chavez, a plurality of the Supreme Court held that Fifth Amendment violations can occur only in the context of criminal prosecutions, and as a result, coercive or uncounseled questioning by law enforcement officers does not amount to a freestanding constitutional violation needed to support a § 1983 claim.” Id. (citing Chavez, 538 U.S. at 772-73. “It is not until statements obtained in violation of Miranda safeguards are used against a defendant at trial, ‘that a violation of the Self-incrimination Clause occurs.'” Id. (quoting Chavez, 538 U.S. at 767).
Based on the foregoing, Plaintiff's allegations of a Miranda violation do not establish a Fifth Amendment constitutional violation under § 1983. See, e.g., Burrell v. Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005) (concluding pursuant to Chavez that a § 1983 complaint failed to state a claim where plaintiff did “not allege any trial action that violated his Fifth Amendment rights”).
Notably, Plaintiff does not allege that any statements she made were used against her in a criminal prosecution.
Likewise, to the extent Plaintiff alleges a violation of her Sixth Amendment right to counsel, such a claim also fails. “The Sixth Amendment right to counsel prohibits the government from deliberately eliciting incriminating evidence from an accused ‘after he ha[s] been indicted and in the absence of his counsel.'” United States v. Kidd, 12 F.3d 30, 32 (4th Cir. 1993) (quoting Massiah v. United States, 377 U.S. 201, 206 (1964)). The United States Supreme Court has “never held that the right to counsel attaches at the time of arrest.” United States v. Gouveia, 467 U.S. 180, 190 (1984). Here, the allegations in the Complaint center on Plaintiff's arrest and detention in jail-she does not mention an adversary judicial proceeding wherein incriminating evidence was elicited in the absence of counsel. See Gouveia, 467 U.S. at 187-88 (The Sixth Amendment right to counsel only attaches at or after adversary judicial proceedings have been initiated against a defendant, “whether by way of formal charge, preliminary hearing, indictment, information or arraignment”). Accordingly, the undersigned recommends Plaintiff has failed to sufficiently allege a Sixth Amendment constitutional violation under § 1983.
4. Claims for Violation of Criminal Statutes
In both Motions to Dismiss, Defendants also argue that Plaintiff's claims based on the alleged violation of criminal statutes fail because the statutes at issue do not provide for a private right of action. (Dkt. No. 6-1 at 9-10; 7-1 at 5-6.) In the Complaint, Plaintiff alleges claims for “Kidnapping 18 U.S.C. § 1201” and “Conspiracy against rights-18 U.S. Code § 241.” (Dkt. No. 1-1 at 16.) Despite Plaintiff's assertions to the contrary (Dkt. Nos. 20 at 7-8; 21 at 1-6), it is well settled that these criminal statutes do not provide for a private right of action. See Hernandez v. Graham, No. 5:18-CV-525-D, 2018 WL 6737400, at *2 (E.D. N.C. Nov. 15, 2018), (“Plaintiff also alleges violation of the federal kidnapping statute, 18 U.S.C. § 1201, but only the United States can enforce its criminal laws, and the statute affords no private cause of action.”), adopted by, 2018 WL 6737356 (E.D. N.C. Dec. 18, 2018); Diaz Aviation Corp. v. Airport Aviation Servs., Inc., 762 F.Supp.2d 388, 393 (D.P.R. 2011) (“Plaintiff's complaint cites to 18 U.S.C. Section 241, which provides for the criminal prosecution of two or more persons conspiring to interfere with the constitutional or legal rights of another individual. See 18 U.S.C. § 241. This statute does not provide for a private cause of action.... Because Plaintiff is legally precluded from seeking relief under 18 U.S.C. Section 241, any claim under this criminal statute is subject to dismissal.”). Accordingly, the undersigned recommends any claims based on the violation of these criminal statutes be dismissed.
5. State law claims
In both Motions to Dismiss, Defendants argue that to the extent Plaintiff brings any sate law claims, the individual Defendants are not proper parties to Plaintiff's state law claims under the South Carolina Tort Claims Act (“SCTCA”). (Dkt. Nos. 6-1 at 10; 7-1 at 6-7.) 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.” Shirley's Iron Works, Inc. v. City of Union, 403 S.C. 560, 571, 743 S.E.2d 778, 783 (2013); see S.C. Code Ann. § 15-78-40 (2005) (“The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances ....”). “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 v. Enzor, 240 F.Supp.3d 426, 436 (D.S.C. 2017).
The SCTCA covers employee conduct insofar as it is not “outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-60; see also S.C. Code § 15-78-70(b) (“Nothing 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.”); Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005) (holding “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”); Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (noting that an employee of a government entity is personally liable for a tort, only when the employee's conduct falls within the exceptions listed in § 15-78-70(b)).
While not artfully pled, the Complaint appears to allege state law claims for kidnapping, conspiracy, false imprisonment, and assault and battery under South Carolina law. (Dkt. No. 1-1 at 8.) Notably, in their Motions to Dismiss, Defendants do not acknowledge that an employee of a government entity is personally liable for an intentional tort when the employee's conduct falls within the exceptions listed in § 15-78-70(b). Further, “[i]mmunity under the statute is an affirmative defense that must be proved by the defendant at trial.” Frazier v. Badger, 361 S.C. 94, 603 S.E.2d 587, 590 (2004). Liberally construed, the Complaint generally alleges that Defendants acted with actual malice and intent to harm in committing the alleged torts at issue. (Dkt. No. 1-1 at 14-25.) Because Defendants have not addressed the applicability of § 15-78-70(b) to the allegations in this case, the Court cannot find the individual Defendants are immune from Plaintiff's state law claims under the SCTCA. Accordingly, Plaintiff's state law claims should not be dismissed on this basis.
6. Punitive Damages
In both Motions to Dismiss, Defendants argue that under South Carolina law, punitive damages are not recoverable against CCSO, the City, and Deputy Harger in his official capacity. (Dkt. Nos. 6-1 at 11; 7-1 at 7-8.) It is well established that the SCTCA bars any recovery for punitive damages. S.C. Code Ann. § 15-78-120(b). Accordingly, Defendants are correct that any claims brought against CCSO and the City are barred under the SCTCA. However, as noted above, it appears Plaintiff has alleged the individual Defendants are personally liable for certain intentional torts under South Carolina law. Punitive damages would not necessarily be prohibited for these claims that fall outside the scope of the SCTCA. Based on the foregoing, the undersigned recommends Plaintiff cannot recover punitive damages against CCSO and the City for any state law claims brought under the SCTCA. However, there is no basis to find that punitive damages are not otherwise recoverable for Plaintiff's state law claims against the individual Defendants.
7. Remaining Claims
As discussed above, the undersigned liberally construes the Complaint as alleging § 1983 claims for excessive force and unlawful search and seizure. See supra p. 4. Defendants do not address these claims in their Motions to Dismiss and the undersigned recommends that they remain pending.
B. Plaintiff's Motion to Stay (Dkt. No. 45) and Motion for Protective Order (Dkt. No. 48)
Plaintiff has filed a Motion to Stay, asking that the Court “suspend all court proceedings for a three (3) month period” because of Plaintiff's “ongoing medical treatments,” which “demand[] Plaintiff's full attention.” (Dkt. No. 45.) In support, Plaintiff has provided certain medical records. (Dkt. No. 45-1.) She has also provided a note from her doctor stating that Plaintiff “needs extended medical care to treat her current illness” and she “will require multiple visits to physical therapy and other medical specialists over the next 3 months.” (Id. at 1.) Plaintiff has also filed a Motion for Protective Order, asking that the Court find Plaintiff does not have to respond to Defendants' discovery requests because, inter alia, a scheduling order has not yet been entered. (Dkt. No. 48.)
Given this early stage in the proceedings and Plaintiff's alleged medical needs, the Court finds it appropriate to stay discovery until February 1, 2022. However, this stay pertains to discovery only. If motions and court documents are filed, the parties are expected to respond within the stated deadlines or separately move for an extension. Further, to the extent any party wishes for an extension of time to file objections to this Order and Report and Recommendation, they must direct this extension request to the District Judge. Accordingly, Plaintiff's Motion to Stay is granted to the extent discovery is stayed until February 1, 2022. The Motion to Stay is otherwise denied. Given this stay on discovery, the Court grants Plaintiff's Motion for Protective Order. Plaintiff need not respond to Defendants' discovery requests at this time.
C. Plaintiff's Motion to Appoint Counsel (Dkt. No. 42)
Finally, Plaintiff asks that the Court appoint her counsel. (Dkt. No. 42.) In support, she vaguely indicates that her constitutional claims warrant the appointment of counsel. There is no constitutional right to have counsel appointed in a civil case. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984). This court has discretion to appoint counsel for an indigent in a civil action. 28 U.S.C. § 1915(e); Smith v. Blackledge, 451 F.2d 1201, 1203 (4th Cir. 1971). The court, however, may appoint counsel in § 1983 cases only when exceptional circumstances exist. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The Fourth Circuit has stated that the existence of exceptional circumstances “will turn on the quality of two basic factors-the type and complexity of the case, and the abilities of the individuals bringing it.” Brock v. City of Richmond, 983 F.2d 1055 (4th Cir. 1993) (unpublished table decision) (quoting Whisenant, 739 F.2d at 163).
After a review of the pleadings and other documents the Plaintiff has filed with the court, the Court finds that, at this time, this is not the type of case which presents factors that clearly reflect a need for the Plaintiff to have counsel appointed. Also, Plaintiff has shown herself able to represent her interests to this point in the lawsuit, as evidenced by her numerous filings. (Dkt. Nos. 11; 15; 18; 20; 21; 22; 26; 40; 43; 49.) Furthermore, it is not clear at this point whether a trial will be required.
Based on the foregoing, Plaintiff's Motion to Appoint Counsel (Dkt. No. 42) is denied.
CONCLUSION
For the above reasons, the undersigned RECOMMENDS that the Court GRANT IN PART AND DENY IN PART the Motion to Dismiss filed by Defendants CCSO and Deputy Harger (Dkt. No. 6). Plaintiff's § 1983 claims for excessive force and unlawful search and seizure against Deputy Harger in his individual capacity should remain pending. Any remaining § 1983 claims, as well as any claims for violation of federal criminal statutes, should be dismissed. Additionally, Plaintiff's state law claims for kidnapping, conspiracy, false imprisonment, and assault and battery should remain pending against CCSO and Deputy Harger. The undersigned recommends Plaintiff cannot recover punitive damages against CCSO for any state law claims brought under the SCTCA. However, there is no basis to find that punitive damages are not otherwise recoverable for Plaintiff's state law claims against Deputy Harger.
The undersigned further RECOMMENDS that the Court GRANT IN PART AND DENY IN PART the Motion to Dismiss filed by Defendants P.O. John O'Connell, P.O. S. Fortier, Sgt. Wilson, P.O. Carwile, and the City (Dkt. No. 7). Plaintiff's § 1983 claims against P.O. John O'Connell, P.O. S. Fortier, Sgt. Wilson, P.O. Carwile, and the City for excessive force and unlawful search and seizure in both their individual and official capacities should remain pending. Any remaining § 1983 claims, as well as any claims for violation of federal criminal statutes, should be dismissed. Additionally, Plaintiff's state law claims for kidnapping, conspiracy, false imprisonment, and assault and battery should remain pending against P.O. John O'Connell, P.O. S. Fortier, Sgt. Wilson, P.O. Carwile, and the City. The undersigned recommends Plaintiff cannot recover punitive damages against the City for any state law claims brought under the SCTCA. However, there is no basis to find that punitive damages are not otherwise recoverable for Plaintiff's state law claims against the individual Defendants.
IT IS SO RECOMMENDED.
For the above reasons, the undersigned GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Stay. (Dkt. No. 45.) More specifically, discovery is stayed until February 1, 2022. The Motion to Stay is otherwise denied. The Court further GRANTS Plaintiff's Motion for Protective Order (Dkt. No. 48) and DENIES Plaintiff's Motion to Appoint Counsel (Dkt. No. 42).