Opinion
2:21-cv-01304-DCN-MGB
12-17-2021
Jonathan Green; JGCRE, Inc.; and Mildred Green, as Personal Representative Representative of the Estate of Nathaniel Green, Plaintiffs, v. Ray Nash, Former Dorchester County Sheriff; Luther Carl Knight, Current Dorchester County Sheriff; Alan McCrory Wilson, Attorney General of the State of South Carolina; Harley Littleton Kirkland, Assistant Attorney General of the State of South Carolina; Mark Keel, South Carolina Law Enforcement Division; Adam L. Whitsett, South Carolina Law Enforcement Division; and Paul Thomas Ahearn, III, South Carolina Law Enforcement Division, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiffs, proceeding pro se, filed this civil action pursuant to 42 U.S.C. § 1983 and the South Carolina Freedom of Information Act (“SC FOIA”). Plaintiffs allege that Defendants violated Plaintiff Jonathan Green's (“Jonathan”) constitutional rights by placing him on the South Carolina sex offender registry as a juvenile, and by refusing to remove him from that registry. (See generally Dkt. No. 8; Dkt. No. 8-2.) Plaintiffs further allege that Defendants violated the S.C. FOIA by denying requests for information from Jonathan and his father, Nathaniel Green. (See generally Dkt. No. 8; Dkt. No. 8-2.) Currently before the Court is Defendants' Motion to Dismiss. (Dkt. No. 19.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. For the reasons set forth below, the undersigned recommends Defendants' Motion be granted in part and denied in part.
BACKGROUND
According to Plaintiffs, Jonathan “[pled] no contest to three sexual offenses in [j]uvenile court of the state of Virginia in Fairfax County” in 1999. (Dkt. No. 8-2 at 1.) He was sentenced to thirty days in juvenile detention with mandatory counseling and probation. (Id.) In 2000, Jonathan and his family moved to South Carolina. (Id.) Plaintiffs claim that Jonathan was still on probation at that time, and that “[t]he protocol was supposed to be that the state of South Carolina was going to take over the probation for the remaining time and then Jonathan would be on his way.” (Id.) Instead, the Dorchester County Sheriff's Department fingerprinted and photographed Jonathan, and placed him on the South Carolina sex offender registry. (Dkt. No. 8 at 3; Dkt. No. 8-2 at 1.) Plaintiffs claim that the Dorchester County Sheriff's Department informed Jonathan that “he would be required to register as a sex offender for the rest of his life” and that no one at the Department “[ever] called Virginia to verify the codes of VA law to compare them with the codes of S.C. law.” (Dkt. No. 8 at 3-4; Dkt. No. 8-2 at 1.) Plaintiffs further claim that “[a] few days later Sheriff Nash was made aware of the situation . . . but he still allowed Jonathan to be added to the registry because it would be too politically risky to remove [him].” (Dkt. No. 8-2 at 1.)
Plaintiffs claim that Jonathan suffered various consequences as a result of his placement on the South Carolina sex offender registry. (Dkt. No. 8 at 3-5; Dkt. No. 8-2 at 1-2.) According to Plaintiffs, Jonathan was, inter alia, “required to register on the public Oklahoma database as a sex offender for 10 years,” “detained by CBP (customs and border patrol) for 4 hours and questioned in Miami, Florida when returning home from Panama in 2014,” “forced to sleep on the floor of a one-bedroom apartment with his sister [in Virginia],” “forced . . . to move into a room about the size of a closet [in Virginia] where he lived for 6 years,” denied for jobs, “detained, harassed, questioned by CBP or denied entry into countries [when he traveled internationally],” “unable to meet foreign dignitaries,” delayed in receiving his Florida real estate broker's license, and unable to apply for a Georgia real estate broker's license. (Dkt. No. 8 at 3-4; Dkt. No. 8-2 at 2-4.)
Plaintiffs allege that Jonathan was removed from the South Carolina sex offender registry briefly in 2003 when “presumptively because Nathaniel Green was also a former police officer one of the people in the Sheriff's office felt sorry for Jonathan Green's situation and deleted his picture and address on the registry in South Carolina.” (Dkt. No. 8-2 at 2.) Plaintiffs further allege that Jonathan thought he was removed entirely from the registry in 2015, but later discovered that he had only “been moved to a more private registry.” (Id. at 3-4.) Plaintiffs claim “[t]his is hindering Jonathan's ability to live and grow his business [JGCRE, Inc.].” (Id. at 4.)
Plaintiffs also claim that “LC Knight and the other defendants kept Jonathan Green on the registry illegally” and that Defendants “were complicit after Ray Nash left office by still requiring Jonathan Green to remain in the registry.” (Dkt. No. 8 at 4.) In addition, Plaintiffs allege that “South Carolina refuses to release the information that they have. SLED has denied multiple freedom of information requests in 2019 and 2020.” (Dkt. No. 8 at 5; Dkt. No. 8-2 at 2.)
Accordingly, Plaintiffs filed the instant civil action alleging that Defendants violated Jonathan's Fourth, Fifth, Eighth, and Fourteenth Amendment rights, and the S.C. FOIA. (Dkt. No. 8 at 3-5.) Plaintiffs seek approximately $30 million in consequential, punitive, and compensatory damages. (Id. at 6.) Plaintiffs also request injunctive relief in the form of Jonathan's immediate removal from the sex offender registry, and “a letter of apology from the State of South Carolina, SLED, and the Dorchester [C]ounty Sheriff[']s [O]ffice.” (Id.)
Plaintiffs filed their initial Complaint on May 3, 2021 and filed an Amended Complaint on July 15, 2021. (Dkt. No. 1; Dkt. No. 8.) On October 7, 2021, Defendants filed a Motion to Dismiss, seeking to dismiss Plaintiffs' claims in their entirety. (Dkt. No. 19.) Plaintiffs filed a response in opposition to Defendants' Motion on November 5, 2021. (Dkt. No. 34.) Defendants did not file a reply. As such, the Motion is ripe and ready for disposition.
LEGAL STANDARD
Defendants seek dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 19.) A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks and citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. County Commissioners of Carroll County, Maryland, 523 F.3d 453, 459 (4th Cir. 2008).
The Fourth Circuit has yet to decide “whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).” Andrews v. Daw, 201 F.3d 521, 525 n.2 (4th Cir. 2000). Several courts in this circuit, however, have noted a “trend” of viewing Eleventh Amendment immunity through the lens of Rule 12(b)(1). E.g., Clowdis v. Silverman, No. 3:15-cv-128, 2019 WL 1415454, at *12 (E.D. Va. Mar. 28, 2019); Darling v. Falls, 236 F.Supp.3d 914, 925 n.11 (M.D. N.C. 2017); cf. Roach v. W.Va. Reg'l Jail & Corr. Facility Auth., 74 F.3d 46, 48 (4th Cir. 1996) (“Although not a true limit on the subject-matter jurisdiction of the federal courts, the Eleventh Amendment is ‘a block on the exercise of that jurisdiction.'” (quoting Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995))). This distinction, however, “makes little practical difference” as in either case the court must assume the truth of the facts alleged in the complaint and view them in the light most favorable to the plaintiff. Zemedagegehu v. Arthur, No. 1:15-cv-57, 2015 WL 1930539, at *3 (E.D. Va. Apr. 28, 2015); accord Fleming v. Va. State Univ., No. 3:15-cv-268, 2016 WL 927186, at *1 n.4 (E.D. Va. Mar. 4, 2016).
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)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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) (citingMylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298). Because Plaintiffs are proceeding pro se, these standards must be applied while liberally construing Plaintiffs' filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiffs have submitted various supporting documents with their Response in Opposition. (Dkt. No. 34-1.) “Under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider exhibits, without converting the motion to dismiss to one for summary judgment.” Brennan v. Deluxe Corp., 361 F.Supp.3d 494, 501 (D. Md. 2019) (citing Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015)). “In particular, a court may consider documents that are ‘explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits '” Id. (quoting Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)). The Court may also “consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity.” Goines, 822 F.3d at 166. “To be ‘integral,' a document must be one ‘that by its very existence, and not the mere information it contains, gives rise to the legal rights asserted.'” Brennan, 361 F.Supp.3d at 502 (quoting Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011)). The documents considered herein are either explicitly incorporated into the complaint by reference or are integral to the complaint and there is no dispute about their authenticity.
DISCUSSION
I. Section 1983 Claims
A. Eleventh Amendment
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). Further, 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). Accordingly, “[s]tate officials may only be sued in their individual capacities.” Rhoden v. S.C. Dep't of Corr., No. 4:17-cv-2537-HMH-TER, 2017 WL 9288217, at *3 (D.S.C. Oct. 4, 2017) (finding claims against prison warden in his official capacity should be dismissed because warden is entitled to Eleventh Amendment immunity), adopted, 2017 WL 5494126 (D.S.C. Nov. 16, 2017), amended, 2017 WL 6032341 (D.S.C. Dec. 6, 2017); Edwards v. Patell, No. 4:06-cv-0748-HFF-TER, 2007 WL 2428548, at *8 (D.S.C. Aug. 21, 2007) (dismissing claims brought against defendant “employee of SCDC” in his official capacity).
Here, the named Defendants include: two members of the South Carolina Attorney General's Office, including the Attorney General himself; the director of the South Carolina Law Enforcement Division (“SLED”); two attorneys employed by SLED; a past sheriff of Dorchester County; and the present sheriff of Dorchester County. (Dkt. No. 8 at 2.) Plaintiffs have sued all such Defendants solely in their official capacities as state officials or employees. (Dkt. No. 8 at 2.) Thus, the undersigned recommends that Defendants are entitled to Eleventh Amendment immunity with respect to Plaintiffs' § 1983 claims for monetary damages.
Plaintiffs argue that Defendant Nash and Defendant Knight are not subject to Eleventh Amendment immunity because the Dorchester County Sheriff's Office is part of the local government, not the state government. (Dkt. No. 34 at 2.) However, “sheriff's departments in South Carolina are state agencies.” Bey v. S.C. Berkeley 9th Jud. Ct., No. 2:17-cv-3248-RMG-MGB, 2018 WL 1135382, at *6 (D.S.C. Feb. 7, 2018) (citing S.C. Code Ann. § 23-13-550 (2008); 1975 S.C. Att'y. General Opinion No. 47 (Jan. 22, 1975); S.C. Code Ann. § 23-13-10 (2012); Edwards v. Lexington Cty. Sheriff's Dept., 386 S.C. 285, 688 S.E.2d 125, 127 n. 1 (S.C. 2010) (“under South Carolina law, the sheriff and sheriff's deputies are State . . . employees”); Cromer, 88 F.3d at 1332 (holding that sheriff was an “arm of the State”); Jones v. SCDC, Case No. 5:12-cv-3554-RBH-KDW, 2013 WL 3880175, *4 (D.S.C. July 26, 2013) (same, summarily dismissing)).
Moreover, “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983” and therefore do not fall within the purview of § 1983 for recovery of money damages. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
However, the undersigned recommends that the Eleventh Amendment does not bar Plaintiffs' § 1983 claims for injunctive relief. The Supreme Court has found that a suit for injunctive relief against a state officer to prevent ongoing violations of federal law is not a suit against the state for purposes of the Eleventh Amendment. More specifically, in the landmark Supreme Court decision, Ex Parte Young, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. 209 U.S. 123, 155-56 (1908).
“The Ex Parte Young exception is directed at ‘officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings'” to enforce an unconstitutional act against affected parties. McBurney v. Cuccinelli, II, 616 F.3d 393, 399 (4th Cir. 2010) (citing Ex Parte Young, 209 U.S. at 155-56). “Thus, to correctly plead such a claim, the proper State official must be included as a defendant by name and identified in the body of the complaint with a specific unconstitutional policy, custom, or practice.” Smith v. City of Huntington, No. 3:17-cv-03806, 2017 WL 5180456, at *3 (S.D. W.Va. Sept. 28, 2017), adopted sub nom. Smith v. City of Huntignton, 2017 WL 5180437 (S.D. W.Va. Nov. 8, 2017); see also Woods v. S.C. Dep't of Health & Human Servs., No. 3:18-cv-00834-MGL-KDW, 2019 WL 1995136, at *6 (D.S.C. Apr. 18, 2019) (finding that a “claim for prospective injunctive relief permitted by Ex Parte Young . . . would be brought against state officers or agency employees in their official capacities”), adopted by, 2019 WL 1995511 (D.S.C. May 6, 2019).
Further, a plaintiff must show some special relationship between the state actor sued and the actions sought to be prospectively enjoined. Kobe v. Haley, 666 Fed.Appx. 281, 299 (4th Cir. 2016). “Practically speaking, a plaintiff must name as a defendant one or more state officials or employees who has both the responsibility for the alleged ongoing violations of federal law and the authority to provide prospective redress for those alleged ongoing violations, i.e., the authority to end the alleged ongoing violations.” Woods, 2019 WL 1995136, at *6 (citing Kobe, 666 Fed.Appx. at 299-300; Allen v. Coll. of William and Mary, 245 F.Supp.2d 777, 791 (E.D. Va. 2003) (noting Ex Parte Young relief may only be pursued against a state official if that official has the authority to provide the relief sought)). “This requirement of proximity to and responsibility for the challenged state action is not met when an official merely possesses [g]eneral authority to enforce the laws of the state.” McBurney, 616 F.3d at 331 (internal citation and quotation marks omitted).
Plaintiffs allege that Jonathan is subject to ongoing violations of his constitutional rights because he remains on South Carolina's sex offender registry. (See generally Dkt. No. 8; Dkt. No. 8-2.) A recent South Carolina Supreme Court case, Powell v. Keel, determined that South Carolina's sex offender registry requirements are unconstitutional. 433 S.C. 457 (2021).
Specifically, the court explained:
Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, [the South Carolina Sex Offender Registry Act's (“SORA”)] requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending. Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review. Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.Id.
Defendants argue that Powell precludes the Ex Parte Young exception to Eleventh Amendment immunity in this case because Plaintiffs' request that Jonathan be removed from the sex offender registry “would require a change in the law.” (Dkt. No. 19-1 at 6.) Defendants contend that “as the law currently stands, the only way for Plaintiff to be taken off the registry is to have the South Carolina legislature change the law” and that “SLED is charged with enforcing the laws as written.” (Id. at 6-7.) Ultimately, Defendants assert that they do not have the authority to remove Jonathan from the South Carolina sex offender registry. (Id. at 2.)
Based on the relevant pleadings, the undersigned finds that Plaintiffs have sufficiently alleged an ongoing constitutional violation. (See generally Dkt. No. 8; Dkt. No. 8-2.) However, Plaintiffs fail to set forth facts sufficient for the Court to infer that Defendants Nash, Knight, Wilson, Kirkland, Whitsett, and Ahearn have the requisite authority to cure such violation. (See generally Dkt. No. 8; Dkt. No. 8-2.) Indeed, Plaintiffs assert that Jonathan remaining on the South Carolina sex offender registry in any capacity is unconstitutional. (See generally Dkt. No. 8; Dkt. No. 34.) Thus, Defendants would need authority to permanently and entirely remove Jonathan from the registry in order to cure this violation. It does not appear that Defendants Nash, Knight, Wilson, Kirkland, Whitsett, and Ahearn have such authority. (See generally Dkt. No. 8; Dkt. No. 8-2; Dkt. No. 19-1; Dkt. No. 34.) Rather, South Carolina law vests this authority in the Chief of SLED. See S.C. Code Ann. § 23-3-410 (“The registry is under the direction of the Chief of the State Law Enforcement Division (SLED).”). Accordingly, the undersigned recommends that only Plaintiffs' § 1983 claim for injunctive relief against Defendant Keel should survive, as Defendant Keel currently serves as the Chief of SLED. (Dkt. No. 19-1 at 4.)
Nor do Plaintiffs allege a sufficient “special relationship” between these Defendants and the ongoing constitutional violation at issue. (See generally Dkt. No. 8; Dkt. No. 8-2.)
Defendants also argue that Plaintiffs' Amended Complaint is “devoid of allegations of personal involvement by Defendants Wilson, Kirkland, Keel, Whitsett, Ahearn, III, and Knight” and that any claims against Defendant Nash are barred by the statute of limitations. (Dkt. No. 19-1 at 7-10.) While Plaintiffs do not bring claims against Defendants in their individual capacities, (see generally Dkt. No. 8; Dkt. No. 8-2), the undersigned notes that any such claims would likely be futile. (Dkt. No. 19-1 at 7-10.)
II. South Carolina Freedom of Information Act Claims
Plaintiffs allege that certain Defendants violated the S.C. FOIA by denying Plaintiffs' requests for information. (Dkt. No. 8 at 5; Dkt. No. 8-2 at 2.) More specifically, Plaintiffs claim that “Defendants from SLED have denied two [] separate freedom of information requests of what they are publishing on the sex offender registry from Nathaniel Green and Jonathan Green.” (Dkt. No. 8 at 5.) Defendants contend that Plaintiffs' claims fail because (1) SLED is not subject to federal FOIA laws, (2) Plaintiffs' claims are untimely to the extent they stem from Plaintiffs' first request for information, and (3) “Plaintiffs were seeking information that cannot be disclosed pursuant to the laws of South Carolina.” (Dkt. No. 19-1 at 10-11.)
With respect to Defendants' first argument, the undersigned agrees that SLED is not subject to federal FOIA laws. See 5 U.S.C. § 551(1); see also Sheppard v. Stewart, No. C/A 3:09-2529-CMC-JRM, 2009 WL 4432575, at *3 (D.S.C. Nov. 24, 2009) (“The federal FOIA is applicable to agencies or departments of the Government of the United States, and is not applicable to agencies or departments of a State.”). However, South Carolina has its own Freedom of Information Act which applies to state agencies. See S.C. Code Ann. § 30-4-10, et seq. (1976); see also Seago v. Horry County, 378 S.C. 414, 663 S.E.2d 38 (S.C. 2008). This is the statute under which Jonathan and Nathaniel Green requested information from SLED, and the statute under which Plaintiffs bring their claims. (Dkt No. 8 at 5; Dkt. No. 8-2 at 10-11, 13-14.)
As for Defendants' second argument, the undersigned agrees that any claims related to Plaintiffs' 2019 request are untimely. (Dkt. No. 19-1 at 10.) Indeed, SC Code Ann. § 30-4-100(A) states that requests to enforce provisions of the S.C. FOIA must be made within one year of the date of the alleged violation (or one year after a public vote in public session, but that is inapplicable here). The letter denying Jonathan's 2019 request is dated December 10, 2019. (Dkt. No. 8-2 at 12.) Plaintiffs filed the instant lawsuit on May 3, 2021. (Dkt. No. 1.) Accordingly, any claims relating to the 2019 request are untimely and should be dismissed.
To the extent Plaintiffs argue that such claims are “timely under the continuing violations doctrine,” the undersigned notes that the denial of Jonathan's request is a discrete incident and not a continuing violation. (Dkt. No. 34 at 31.) Further, while the undersigned recognizes that 2020 was “unprecedented,” the fact that Plaintiffs experienced challenges during that time cannot save their untimely claims. (Id. at 32.)
Turning to Defendants' third argument, the S.C. FOIA provides that “[a]ny person has a right to inspect or copy any public record of a public body, except as otherwise provided by § 30-4-40.” S.C. Code Ann. § 30-4-30 (1991). Section 30-4-40(a) lists various matters which are exempt from disclosure, including matters exempted from disclosure by another statute or law. Section 30-4-40(b) provides that: “[i]f any public record contains material which is not exempt under subsection (a) of this section, the public body shall separate the exempt and nonexempt material and make the nonexempt material available in accordance with the requirements of this chapter.” S.C. Code Ann. § 30-4-40(b) (1991).
Defendants argue that “Plaintiffs were seeking information that cannot be disclosed pursuant to the laws of South Carolina,” so the denials of Plaintiffs' FOIA requests were proper. (Dkt. No. 19-1 at 11.) More specifically, Defendants contend that Plaintiffs were seeking juvenile records. (Id.) However, Plaintiffs actually requested “copies of records that describe [Jonathan's arrest] or any [fingerprints], records, or information . . . submitted within the last 25 years from the State of South Carolina to the federal government or listed on any existing or expired [databases] about him being on the sex offender registry or being arrested.” (Dkt. No. 8-2 at 10, 13.) Thus, it is unclear at this early stage of the proceedings whether all information requested by Plaintiffs is exempt from disclosure. (Dkt. No. 19-1 at 11.) As such, the undersigned recommends that Plaintiffs' S.C. FOIA claim relating to Nathaniel Green's 2020 request should survive. However, as noted above, Plaintiffs' S.C. FOIA claim relating to Jonathan's 2019 request is barred by the statute of limitations and should be dismissed.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' Motion to Dismiss (Dkt. No. 19) be GRANTED IN PART AND DENIED IN PART. Specifically, the undersigned recommends that Defendants' Motion to Dismiss be DENIED as to Plaintiffs' § 1983 claim for injunctive relief against Defendant Keel and Plaintiffs' S.C. FOIA claim against Defendants Keel, Whitsett, and Ahearn (the “SLED Defendants”) relating to Nathaniel Green's 2020 request for information. The undersigned recommends that Defendants' Motion to Dismiss be GRANTED as to all remaining claims, and that Defendants Nash, Knight, Wilson, and Kirkland be dismissed from the case.
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
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).