Opinion
C. A. 1:21-2866-RMG-SVH
09-01-2022
Lisa Flaherty-Ortega, as Personal Representative of the Estate of Abed Michael Naqshabandi, Plaintiff, v. Horry County, South Carolina, Horry County Sheriff's Office, CPL. Scott Legg, Lt. CPL. Cory Johnson, Sheriff Phillip Thompson, Conway Emergency Group, LLP, and Jeffrey Misko, MD, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, CAROLINA UNITED STATES MAGISTRATE JUDGE
Lisa Flaherty-Ortega (“Plaintiff”), as personal representative of the estate of Abed Michael Naqshabandi (“Naqshabandi”), filed this suit on April 14, 2020, in the Horry County Court of Common Pleas. The suit was removed to this court on September 3, 2021.
In her amended complaint, Plaintiff asserts causes of action against the following defendants: (1) negligence, gross negligence/survival against Horry County, South Carolina, and Horry County Sheriff's Office, (2) negligence, gross negligence/wrongful death against Horry County, South Carolina, and Horry County Sheriff's Office, (3) a Monell claim pursuant to 42 U.S.C. § 1983 against Horry County, South Carolina, (4) a claim pursuant to 42 U.S.C. § 1983 for constitutional violations against Corporal Scott Legg (“Legg”) and Lieutenant Corporal Cory Johnson (“Johnson”), (5) a claim pursuant to 42 U.S.C. § 1983 for supervisory liability against Sheriff Phillip Thompson, (6) a claim for medical negligence/gross negligence (survival) against Conway Emergency Group, LLP, and Jeffrey Misko, MD, and (7) a claim for medical negligence/gross negligence (wrongful death) against Conway Emergency Group, LLP, and Jeffrey Misko, MD.
This matter comes before the court on the motion to dismiss filed by Horry County, South Carolina (“Defendant”) pursuant to Fed.R.Civ.P. 12(b)(6), seeking dismissal of Plaintiff's third cause of action only. [ECF No. 27]. Defendant's motion to dismiss having been fully briefed [see ECF Nos. 35, 39], it 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 case 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 Defendant's motion to dismiss.
I. Factual Background
As relevant to the resolution of the instant motion, Plaintiff alleges Naqshabandi was held as a pretrial detainee at the J. Reuben Long Detention Center (“detention center”) beginning August 28, 2019, after being charged with several nonviolent misdemeanor offenses. [ECF No. 13 ¶¶ 1011].
According to Plaintiff, Naqshabandi suffered a history of mental illness that was known or should have been known to Defendant, and that during his detention, he expressed suicidal ideations, resulting in his placement on suicide watch. Id. ¶ 13. Following multiple attempts to commit suicide, Naqshabandi suffered injuries to his legs, head, feet, and elbow, was tased, restrained, and transported to Conway Medical Center. Id. ¶¶ 14-15. At or around 10:41 a.m. on the morning of September 21, 2019, Naqshabandi was released from Conway Medical Center, diagnosed with “suicidal ideations,” and was to be placed on “suicide watch at jail.” Id. ¶ 17.
Johnson and Legg transported Naqshabandi back to the detention center in a transport van owned and maintained by Defendant. Id. ¶ 16. The van contained two metal pods, one in the rear of the van and one in the center of the van. Id. The pods contained individual seatbelts and were monitored by cameras that provided a live feed to the van's front-seat passengers. Id.
Legg and Johnson placed Naqshabandi in the center transport pod of the van directly behind the driver and front passenger seats. Id. ¶ 18. Plaintiff alleges Legg and Johnson did not secure Naqshabandi with a seat belt in violation of the applicable safety and transport policies and procedures. Id.
Plaintiff alleges that during the 20-minute ride to the detention center, Naqshabandi removed himself from his seat and positioned himself onto the floor of the van, also in violation of applicable policies and procedures, and was able to crawl to the floorboard of the transport vehicle, wrap a seatbelt around his neck, and strangle himself in view of the video monitoring devices that both recorded and provided a live feed to the front-seat occupants. Id. at ¶¶ 21-22. Plaintiff alleges that upon arrival to the detention center, Legg and Johnson checked on Naqshabandi and discovered him unconscious with the seatbelt around his neck. Id. ¶ 22. Although emergency personnel were able to restart Naqshabandi's heart, he never regained consciousness. Id. ¶ 23. He was found to have no brain activity and died on September 23, 2019, from asphyxia due to ligature compression of the neck, vasculature, and trachea. Id.
Plaintiff also alleges as follows:
The Plaintiff is informed and believes that prior to the events in question, Horry County and Horry County Sheriff's Office had a history of failing to provide adequate security and supervision to those individuals in their custody or control who rely upon the government for transportation either by reason of arrest, incarceration, or mental illness. Upon information and belief, Mr.
Naqshabandi was the third mental health patient to die as a result of injuries sustained in a Horry County Sheriff's Office transport van in a period of twelve (12) months.Id. ¶ 12.
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
Plaintiff's third cause of action alleges a claim for municipal liability under 42 U.S.C. § 1983 against Defendant. “Municipalities are not liable under respondeat superior principles for all constitutional violations of their employees simply because of the employment relationship.” Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir. 1987) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692-94 (1978)). Rather, “municipal liability results only ‘when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.'” Spell, 824 F.2d at 1385 (citing Monell, 436 U.S. at 694). As stated by the Fourth Circuit:
A policy or custom for which a municipality may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citations omitted).
Plaintiff argues her claim for municipal liability is based on (3) and (4) above. More specifically, Plaintiff alleges:
Defendant Horry County maintained a custom and practice of consciously and dangerously disregarding the health and safety of individuals being transported by the Horry County Sheriff's Office within departmental transport vans. This custom and practice included routine disregard for the proper use of safety belts, routine disregard for the proper supervision of passengers, and routine disregard for traffic laws. This custom and practice resulted in the deaths of two passengers within Horry County
Sheriff's Office transport vans in the twelve (12) months leading up to the Plaintiff's death ....[ECF No. 13 ¶ 39]. Plaintiff additionally argues Defendant “failed to offer or require any training or instruction regarding proper regard for the health and safety of mentally ill individuals being transported by the Horry County Sheriff's Office within the transport vans.” Id. ¶ 40. In sum, Plaintiff alleges by failing to correct its officers' pervasive safety policy violations and failing to properly train the officers, Defendant injured her, committing an independent act that renders it liable.
The Fourth Circuit has provided the following guidance concerning allegations of a policy or custom arising from a persistent or widespread practice:
Owens alleges that by failing to correct its officers' pervasive suppression of evidence, the BCPD injured him, committing an independent act that renders it liable under § 1983.
Prevailing under such a theory is no easy task. A plaintiff must point to a “persistent and widespread practice[ ] of municipal officials,” the “duration and frequency” of which indicate that policymakers (1) had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their “deliberate indifference.” Both knowledge and indifference can be inferred from the “extent” of employees' misconduct. Sporadic or isolated violations of rights will not give rise to Monell liability; only “widespread or flagrant” violations will.
Although prevailing on the merits of a Monell claim is difficult, simply alleging such a claim is, by definition, easier ....
In support of his claim, Owens alleges that “[r]eported and unreported cases from the period of time before and during the events complained of” establish that the BCPD had a custom, policy, or practice of knowingly and repeatedly suppressing exculpatory evidence in criminal prosecutions. He further alleges that “a number of motions were filed and granted during this time period that demonstrate that [the BCPD] maintained a custom, policy, or practice to allow this type of behavior either directly or . . . by condoning it, and/or knowingly turning a blind eye to it.” The assertions as to “reported and unreported cases” and numerous “successful motions” are factual allegations, the veracity of which could plausibly support a Monell claim. That BCPD officers withheld information on multiple occasions could establish a “persistent and widespread” pattern of practice, the hallmark of an impermissible custom.Owens v. Baltimore City State's Attys Off, 767 F.3d 379, 402-03 (4th Cir. 2014).
“Following Owens, district courts in the Fourth Circuit have allowed claims alleging an official custom or pattern of unconstitutional police conduct to proceed when plaintiffs have alleged a similar number of incidents over a similar timeframe.” Booker v. City of Lynchburg, C/A No. 6:20-00011, 2021 WL 519905, at *4 (W.D. Va. Feb. 11, 2021) (collecting cases). Here, however, Plaintiff has alleged only that two other inmates have died over a one-year period due to “routine disregard for the proper use of safety belts, routine disregard for the proper supervision of passengers, and routine disregard for traffic laws” [ECF No. 13 ¶ 39], the latter of which has not been alleged to be at issue as to Naqshabandi. No other allegations are made regarding any of Defendant's alleged custom and practice, such as other “reported and unreported cases” or any successful motions or other legal actions.
Even considering the relative ease of alleging a Monell claim, as discussed in Owen, and taking all facts alleged by Plaintiff as true, the allegations before the court are insufficient to indicate a similar number of incidents over a similar timeframe, or even that one additional similar incident to Naqshabandi's took place during the relevant time period. See, e.g., Carter v. Morris, 164 F.3d 215, 220 (4th Cir. 1999) (stating that “meager history of isolated incidents” does not approach the “widespread and permanent practice necessary to establish municipal custom”). Plaintiff has not sufficiently alleged that the two other inmate deaths occurred under circumstances similar to the circumstances surrounding Naqshabandi's death.
This conclusion is further supported the following argument made by Defendant:
While not specified within the Amended Complaint, the second incident involved [two] fatalities that resulted from the transport of two individuals through floodwaters in Marion County on September 18, 2018. The two former officers for the Horry County Sheriff's Office in control of the transport van on September 18, 2018, are awaiting trial in Marion County on pending charges of involuntary manslaughter and reckless homicide. The State of South Carolina v. Joshua Dean Bishop, 2019A3310100012, -15.
State of South Carolina v. Stephen William Flood, 2019A3310100013, -14, -16, -17 ....[ECF No. 27 at 5, see also Marion County Public Index, http://publicindex.sccourts.org/marion/publicindex/PISearch.aspx (last visited on November 18, 2021) (identifying Joshua Dean Bishop and Stephen William Flood as having been charged with manslaughter/involuntary manslaughter))].
The court may take judicial notice of these cases. Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”); Mann v. Peoples First Nat'l Bank & Trust Co., 209 F.2d 570, 572 (4th Cir. 1954) (approving district court's taking judicial notice of prior suit with same parties); Seabrook v. City of N. Charleston, C/A No. 2:20-03093-RMG, 2020 WL 7417411, at *3 & n.3 (D.S.C. Dec. 17, 2020) (reviewing publicly available court documents, noting “[i]n reviewing a Rule 12(b)(6) dismissal, a court may properly take judicial notice of matters of public record.”).
Plaintiff argues the above information from Defendant “attempts to draw distinctions between the two deaths that occurred within its transport vans in 2018 from the death of the Plaintiff's son in 2019, such distinctions cannot be drawn in the absence of any discovery” or “at this stage in the proceedings.” [ECF No. 35 at 3]. However, Plaintiff does not dispute Defendant's characterization of the two previous deaths that occurred and does not argue the court cannot take judicial notice of the cases referenced by Defendant. Further, Plaintiff provides no case law in support of her position, that allegations concerning only two incidents-incidents that are not similar-are sufficient to allege a widespread practice sufficient for Monell liability to attach.
Plaintiff cites only to Lytle, 326 F.3d 463 and Spell, 824 F.2d 1380, in support of her position [see ECF No. 35], the former decided on summary judgment and the latter decided following trial.
Plaintiff also alleges deficient training as an alternative method of establishing Monell liability, arguing officers received no training on the proper way to transport mentally-ill individuals, and that the lack of training, “despite the obvious need[,] demonstrates a gross disregard for the rights of persons being transported within Horry County Sheriff's Office transport vans.” [ECF No. 13 ¶ 40].
As held by this court:
[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In Drewry v. Stevenson, 2010 WL 93268 (D.Md. 2010), the court dismissed a constitutional failure to train claim because the complaint alleged no facts showing 1) the nature of the training of sheriff's officers by the County, 2) that any failure to train was a deliberate or conscious choice by the County, or 3) that the conduct was caused by a failure to train. Id. at *4. Further, as Drewry notes, “[a] single incident of misconduct by a police officer is not sufficient to state a claim for inadequate training.” Id.Kinard v. City of Greenville, C/A No. 6:10-3246-TMC, 2012 WL 1340103, at *6 (D.S.C. Apr. 18, 2012). The court concluded “Plaintiff's conclusory allegations are simply insufficient to state a § 1983 claim against the City,” where plaintiff “does not allege that the City was deliberately indifferent to Plaintiff's rights .... or that the City was aware of any unreasonable risk of harm in the manner in which it employed or trained officers” or where “Plaintiff does not allege that any other incidents have occurred in which officers exhibited behavior similar to that alleged by Plaintiff in this case.” Id.
Here, Plaintiff's allegations regarding training are insufficient to state a Monell claim. Plaintiff has not alleged any facts showing the nature of the training Defendant provides, that Defendant made any deliberate or conscious choice, that Legg and Johnson's actions were caused by a failure to train, or that what occurred was anything more than a single incident of misconduct, as discussed above.
Holloman v. Markowski, 661 Fed.Appx. 797 (4th Cir. 2016) is instructive. In Holloman, a mother brought a 42 U.S.C. § 1983 action stemming from the fatal shooting of her son by two officers of the Baltimore City Police Department. Regarding her assertion of a failure to train claim, the Fourth Circuit held as follows:
The only facts Holloman has pled in support of these allegations were four specific instances of city police officers killing in the
course of their duties and an August 22, 2012 Baltimore Sun article reporting that, year-to-date, city police officers had shot ten individuals (eight fatally), “[a] number of [whom] had been diagnosed with some sort of mental illness.”
Importantly, Holloman does not allege any facts showing that any of these incidents involved constitutional violations, let alone that the City improperly failed to discipline or train any officers. Cf. Owens, 767 F.3d at 403 (holding that a plaintiff alleging “the existence of ‘reported and unreported cases' and numerous ‘successful motions' “ regarding the improper withholding of exculpatory evidence stated a Monell claim). Holloman's allegations are too speculative to state a plausible claim for municipal liability.Id. at 799-800 (emphasis in original); see also Barr v. Gee, 437 Fed.Appx. 865, 875 (11th Cir. 2011) (dismissing 42 U.S.C. § 1983 failure to train claim because plaintiff “did not allege facts supporting a plausible inference either that the County was on notice beforehand of a need to train in this area, or that the County made a deliberate choice not to do so”).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss Plaintiff's third cause of action against Defendant.
Defendant further requests that this dismissal be with prejudice, arguing that “under current South Carolina statutory and appellate law, no amount of discovery could uncover support for Plaintiff's allegations,” in that “South Carolina counties [including Horry County, as applicable here] do not employ the employees of elected officials and that counties lack the authority to control the employees of an elected official.” [ECF No. 39 (citing Eargle v. Horry Cty., 545 S.E.2d 276 (S.C. 2001) (holding Horry County administrator did not have authority under the Home Rule Act to suspend three employees of county auditor, as auditor was an elected official); Seabrooks v. Aiken Cty., C/A No. 1:15-04235-JMC, 2016 WL 4394275, at *6 (D.S.C. Aug. 18, 2016) (“ . . . . Plaintiff cannot be considered an ‘employee' of Defendant and that Defendant lacked the authority to control the employment of Plaintiff as well as the authority to control the outcome of her grievance. Additionally, SC Code Ann. § 4-9-30 (2016) as well as the reasoning in Eargle provides that South Carolina's counties do not employ the employees of elected officials.”))].
At this time, the undersigned declines to recommend dismissal of Plaintiff's third cause of action with prejudice, where Defendant provides no case law directly relevant and case law indicates that Defendant, Horry County, has been previously subject to suits asserting Monell liability. See, e.g., Legette v. Wilson, C/A No. 4:19-1845-JFA-KFM, 2019 WL 5884302, at *3 (D.S.C. Nov. 12, 2019) (“Plaintiff named Horry County and Horry County Police Department as Defendants in his action .... While municipalities, such as these Defendants, can be sued directly under § 1983, it is only when a Plaintiff alleges that it was the city's policies which cause the constitutional violation.”); Nabors v. Lewis, C/A No. 6:17-2887-DCC-KFM, 2018 WL 7118008, at *16 (D.S.C. Feb. 16, 2018) (dismissing some claims based on Eargle, but dismissing Monell claim based on failure to state a claim).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion to dismiss, dismissing Plaintiff's third cause of action without prejudice.
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
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).