Opinion
C/A No. 2:16-cv-00777-RMG-MGB
08-16-2018
Parker Meyer, PLAINTIFF, v. Leigh Anne McGowan, individually; Charles Francis Wohlleb, individually; Anthony M. Doxey, individually; Michael Kouris, individually; City of North Charleston; DEFENDANTS.
Report & Recommendation
The Plaintiff, through counsel, brings this action under 42 U.S.C. § 1983 and state law against City of North Charleston Police officers and the City of North Charleston ("the City"). Before the court is Defendants' Motion and Memorandum in Support of Motion for Summary Judgment as to All Remaining Claims ("Defendants' Motion"). (Dkt. No. 120.) All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This court recommends that the Defendants' Motion be granted in part and denied in part.
Facts of the Case
The Plaintiff was arrested in her home on March 27, 2014, by Defendant McGowan and was charged with assault on a police officer. (Dkt. No. 54 ¶¶ 42, 101, 118, 119.) Defendants McGowan, Wohlleb, Doxey, and Kouris were police officers for the City of North Charleston ("City") at the time of the Plaintiff's arrest. (Id. ¶ 3.) At approximately 5:00 p.m. on March 27, 2014, the Plaintiff left her home, which she shared with her mother, and went to a work function. (Id. ¶ 43.) The Plaintiff returned home at 9:20 p.m. and fell asleep on her bed watching television on a laptop. (Id. ¶ 44.) At approximately 10:00 p.m., the Plaintiff woke up and went to retrieve items from her car. (Id. ¶ 45.) The door to the house locked behind the Plaintiff. (Id.) The Plaintiff pounded on her door and yelled to awaken her mother for about four minutes. (Dkt. No. 70-3. at 3-4.) The Plaintiff's mother, who has dementia and is referred to herein as "Jane Doe," was unable to open the door. The Plaintiff alleges that she directed her mother to a glass door where the Plaintiff explained to her mother how to open the door. (Id.) By 10:04 p.m., the Plaintiff alleges that she and her mother were back in their beds, and the Plaintiff again fell asleep watching television on a laptop. (Dkt. No. 54 ¶ 47.)
Meanwhile, the Plaintiff's neighbor, Jake Sadler, called 911 to report the events transpiring with the Plaintiff being locked out of her house. (Dkt. No. 70-2 at 3-4.) Mr. Sadler testified that he observed the Plaintiff banging on her door and yelling. (Id.) Mr. Sadler testified that the Plaintiff walked over next to the sidewalk, pulled up her dress, and appeared to urinate in the grass. (Id.) After she finished urinating, the Plaintiff returned to the door and resumed pounding and yelling. (Id.) The Plaintiff's account does not include that she urinated outside.
The Plaintiff alleges that the neighbors were motivated by their desire to have the Plaintiff's mother removed from the home. The Plaintiff alleges that the call to the police was part of an ongoing campaign by the neighbors to disrupt the Plaintiff's mother's life with the hope that she would be sent to a nursing home. (Dkt. No. 54 ¶¶ 48-53.) The neighbor's motivation for calling the police is not a material fact to the issues in the case at bar as it is undisputed that Mr. Sadler called the police and the Plaintiff concedes she was locked outside the residence "banging on the door, yelling mama." (Dkt. No. 70-3 at 3.)
Defendant McGowan was the first officer to arrive at the Plaintiff's house in response to the 911 call. (Dkt. No. 70-10 at 3.) Upon arrival, Defendant McGowan noted a vehicle in the driveway with the interior light on, the hood still warm, and several wine bottles in the "back." (Dkt. No. 70-1 at 11, 42.) Defendant McGowan saw a pair of high heels next to the driver's door on the ground. (Id. at 11.) Defendant McGowan knocked on the front door and received no response. (Id. at 6.) Defendant McGowan then proceeded to the back yard to knock on the rear doors. (Id. at 6-7.) Defendant McGowan testified that as she walked through the gate to the backyard, she noticed a large green purse with blood on it. (Id.) Defendant McGowan could see the purse with her flashlight. (Id.) Defendant McGowan then radioed to dispatch at 10:22 p.m. that the car had an open "trunk" with wine inside, a bloody purse was on the ground, she was unable to locate "the victim," and no one was coming to the door. (Dkt. No. 70-1 at 6, 48.)
The Plaintiff testified that her high heels, which were green, were on the driver's floorboard of the car, not outside on the ground. (Dkt. No. 70-3 at 52.) The Plaintiff also testified it was possible she kicked off her shoes as she was getting out of the car. (Id. at 53.) The Plaintiff additionally disputes that an interior light was on in her vehicle. (Id.)
The Plaintiff disputes that the green bag was a purse, but a picture of the bag is in the record. (Dkt. Nos. 79-4; 88-1.) The Plaintiff testified that the bag was actually a green garden bag. (Dkt. No. 70-3 at 27.) The Plaintiff's expert tested the bag and determined that there was blood on the bag at four locations. (Dkt. No. 79-4.) The bag was tested in November of 2014, approximately eight months after the events in this case took place on March 27, 2014. (Dkt. No. 88 at 1-2.) The Plaintiff testified that it was "highly possible" that the green bag was in the yard as stated in McGowan's incident report. (Dkt. No. 70-3 at 28.) The Plaintiff testified that she did not know if the bag had blood on it on the night of the incident and that it is possible it had blood on it as the result of the Plaintiff cutting her knuckles on her rose bushes. (Id. at 28-29) The court refers to the green bag as a purse because the testimony of the Defendants consistently refers to it as a purse. Looking at the picture of the bag, the officers' description of the bag as a purse was reasonable. The court notes that the Plaintiff contends that the bag was not a purse.
Defendant McGowan testified that she believed the wine bottles were sealed but could not remember. (DKt. No. 120-1 at 17.)
Defendant McGowan knocked on the back door and received no response. (Dkt. No. 70-1 at 14.) Defendant McGowan then met with Mr. Sadler, who repeated to her what he had told the 911 dispatcher. (Id. at 24-25.) Defendants Doxey and Wohlleb arrived on scene simultaneously but in different vehicles. (Dkt. No. 70-10 at 3.) Defendant McGowan briefed Defendants Doxey and Wohlleb on her investigation to that point. (Dkt. No. 70-1 at 14-16.) The three Defendants decided to attempt to wake up a resident of the home to conduct a wellness check. (Id.) Defendant Doxey went to the front door and began knocking while Defendants McGowan and Wohlleb stayed at the back door banging on it. (Id at 16-17.)
Defendant Wohlleb testified that when he arrived on scene, he saw that the car outside the home had the keys in it, was warm, contained several open wine bottles, and that a pair of shoes were just outside the vehicle. (Dkt. No. 120-4 at 2-3.) Additionally Defendant Wohlleb testified that he saw the purse with "fairly large droplets of blood...that appeared fresh" on it. (Dkt. No. 120-4 at 7.) Defendant Doxey testified that there was a pair of shoes outside the car's driver's door. (Dkt. No. 70-10 at 3.) Defendant Doxey testified that he saw the purse but did not see the blood. (Id. at 4-5.) He testified that he did not examine or touch the purse. (Id.)
Defendant Wohlleb was able to open the back door, which was a sliding glass door, by lifting the door within the frame. (Dkt. Nos. 70-1 at 17-18; 70-4 at 4-5.) Defendants Wohlleb and McGowan entered the residence, which was dark, and announced their presence. (Id.) They did not receive a response. (Id.) At the same time, Defendant Doxey was knocking on the front door and saw an elderly lady coming to open the door. (Dkt. No. 70-10 at 5.) The lady turned away from Defendant Doxey knocking at the front door to face Defendants Wohlleb and McGowan, who were approaching from inside the home. (Id.; Dkt. Nos. 70-1 at 18; 70-4 at 5.) Defendant Doxey observed the lady escort Defendants Wohlleb and McGowan upstairs and out of his sight. (Dkt. No. 70-10 at 5-6.) Defendant Doxey then went around to the back of the house and entered through the open door. (Id. at 6.)
The elderly lady, who was Jane Doe, looked towards Defendants Wohlleb and McGowan. (Dkt. No. 70-4 at 5.) Defendant Wohlleb asked her if everything was "okay" and she said yes. (Id.; Dkt. No. 70-1 at 19.) Jane Doe did not appear to be injured or in any distress. (Dkt. No. 70-1 at 19.) Defendants Wohlleb and McGowan explained that they were responding to a family disturbance call and asked where her daughter was. (Dkt. No. 70-4 at 5.) Jane Doe told them the Plaintiff was upstairs in her bedroom. (Id.) Defendants Wohlleb and McGowan asked if Jane Doe would show them where Plaintiff was, and Jane Doe responded in the affirmative and escorted Defendants Wohlleb and McGowan upstairs. (Id.; Dkt. No. 70-1 at 19-20.)
Defendant McGowan found the Plaintiff laying in her bed on top of her covers in the same clothing that was described by Mr. Sadler in the 911 call. (Dkt. No. 70-1 at 20.) The Defendants' account and the Plaintiff's account of what happened in the Plaintiff's bedroom diverge at this point.
The Defendants' account is as follows: Defendant McGowan testified that she saw red wine spilled on the Plaintiff's shirt and that her knee was bleeding. (Dkt. No. 70-1 at 21.) Defendant McGowan could not recall how the Plaintiff woke up, but Defendant McGowan asked the Plaintiff how much alcohol she had consumed because Defendant McGowan was concerned the Plaintiff might need her stomach pumped. (Id. at 21-22.) Defendant McGowan testified that Plaintiff first said she had "too much" to drink and then "not enough." (Id. at 22.) The Plaintiff's speech was slurred, and she appeared disoriented. (Id.; see also Dkt. No. 70-4 at 6.) Defendant McGowan and the other Defendants asked the Plaintiff why her purse and shoes were outside. (Id. at 23.) The Plaintiff attempted to get up to retrieve the items from outside but was unsteady on her feet. (Id.) Defendants Doxey and Wohlleb went to retrieve the Plaintiff's items from outside leaving Defendant McGowan alone with the Plaintiff and Jane Doe. (Id. at 23, 27.) Defendant McGowan asked the Plaintiff if she needed EMS to come for her knee, but she declined. (Id. at 28.) Defendant McGowan continued to ask Plaintiff questions to make sure she appeared coherent and had not fallen or had a concussion. (Id. at 30-32.)
The Plaintiff testified that, after arriving home from a baby shower with co-workers but prior to locking herself outside, the Plaintiff was drinking wine in her bedroom. (Dkt. No. 70-3 at 16.) The Plaintiff fell asleep and spilled red wine on her shirt. (Id.) The Plaintiff then woke up and went outside to get her camera equipment out of the car and locked herself out.
Plaintiff became belligerent and angry. (Dkt. No. 70-1 at 30-32.) Defendant McGowan directed Jane Doe to go to another room because the Plaintiff was getting more agitated with her mother in the room. (Id. at 32-33.) The Plaintiff was demeaning her mother, who appeared fearful of the Plaintiff. (Id. at 35, 43.) Defendant McGowan testified that Plaintiff then lunged towards her and poked her in the eye while swinging her arms and hands. (Id. at 37.) Defendant McGowan was able to control the Plaintiff by getting one of her hands in a cuff. (Id.) Defendant McGowan radioed for Doxey to come back upstairs and Doxey and Wohlleb returned. (Id.)
The Plaintiff's account of what happened in her bedroom is as follows: The Plaintiff was awakened by a "brut[e]" that attacked her in her bed. (Dkt. No. 70-3 at 30.) The "assailant" that attacked her in the dark caused her knee to be carpet burned resulting in her bloody knee. (Id.) The Plaintiff testified that her knee was not injured before the carpet burn. (Id.) The Plaintiff agreed that Defendant McGowan was attempting to ask her if she needed medical attention and ask how much alcohol she had consumed. (Id. at 30-31.) The Plaintiff did not respond to the question because she was "terrified" and "yelling" for the officers to get out of her house. (Id. at 31.) The Plaintiff stated that she was disoriented because "there was a blob, a gigantic, violent blob in my room with a flashlight in my face." (Id. at 32.) The Plaintiff did not remember any other officers being in her room. (Id. at 33.) The Plaintiff testified that she never tried to get out of bed because Defendant McGowan "put [the Plaintiff] to the floor from [her] bed" by her wrist. (Id. at 34, 37.) Defendant McGowan then "violently and forcefully with a ...death grip on the back of [her] arm that caused a perfect handprint bruise, stood [the Plaintiff] up to [her] feet, once she'd beaten [Plaintiff] up, and took [Plaintiff] down the stairs." (Id. at 34.) The Plaintiff yelled for her mother to "stay out of this." (Id. at 35.)
Defendant McGowan arrested Plaintiff and charged her with assault on a police officer under a North Charleston city ordinance. (Dkt. Nos. 70-1 at 38; 120-12.) The Plaintiff's charge was eventually dismissed and expunged following the Plaintiff's completion of a pretrial diversionary program. (Dkt. No. 79-15; 79-22.)
Defendant Kouris arrived on the scene in response to a request for transport. (Dkt. No. 70-6 at 3.) Defendant Kouris transported the Plaintiff to jail. (Dkt. No. 70-6.) The Plaintiff testified that Defendant Kouris "leered at [her] skirt" while shackling the Plaintiff. (Dkt. No. 80-4 at 10.) The Plaintiff alleged that Defendants McGowan and Kouris then defamed the Plaintiff by telling jail staff that she had committed a felony by abusing her mother. (Dkt. No. 54 ¶ 133.)
Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). However, "the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence." Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
Analysis
The Defendants' Motion seeks summary judgment on the Plaintiff's § 1983 claim against Defendant McGowan for excessive force in the ninth cause of action. (Dkt. No. 120.) Additionally, the Defendants' Motion seeks summary judgment on the Plaintiff's state law claims against the City for trespass in the third cause of action, invasion of privacy in the fourth cause of action, negligent hiring in the fifth cause of action, negligent supervision in the sixth cause of action, negligent retention in the seventh cause of action, assault in the eighth cause of action, battery in the ninth cause of action, false imprisonment in the tenth cause of action, and defamation in the twelfth and fourteenth causes of action. (Id.)
The merits of the Plaintiff's defamation claim in the fourteenth cause of action were addressed by this court in its Report and Recommendation filed on July 31, 2018. (Dkt. No. 166.) The court recommended summary judgment be granted as to the defamation claim. Therefore, the court does not further address the fourteenth cause of action in this Report and Recommendation.
1) 42 U.S.C. § 1983 Claim Against Defendant McGowan for Excessive Force
The Plaintiff alleges that Defendant McGowan used excessive force against her when she was arrested in her bedroom on March 27, 2014, in violation of her Fourth and Fourteenth Amendment rights. (Dkt. No. 54 ¶¶ 233-236.) In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she "has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States," and (2) "that the conduct complained of was committed by a person acting under color of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635, 540 (1983); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In a § 1983 action, "liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
"The Fourth Amendment prohibition on unreasonable seizures bars police officers from using excessive force to seize a free citizen." Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). This court must analyze whether an officer's actions were objectively reasonable in determining if the force brought to bear was excessive. E.W. by & through T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018). "Determining the reasonableness of an officer's actions 'requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Id. (quoting Graham, 490 U.S. at 396). The court must examine the officer's actions "in light of the facts and circumstances confronting [her], without regard to [her] underlying intent or motivation." Id. (quoting Graham, 490 U.S. at 397). "Subjective factors involving the officer's motives, intent, or propensities are not relevant." Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017) (quoting Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994)).
Courts evaluate the following three factors when determining if the force used by an officer was reasonable: "[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." E.W. by & through T.W., 884 F.3d at 179 (quoting Graham, 490 U.S. at 396). Courts may additionally consider "other 'objective circumstances potentially relevant to a determination of excessive force.'" Id. (quoting Kingsley v. Hendrickson, — U.S. —, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015)). "The ultimate question is whether the totality of the circumstances justified a particular sort of seizure." Id. (quotations and citations omitted).
As to the three factors in Graham, the Plaintiff was ultimately arrested under a North Charleston City Ordinance for assault on a law enforcement officer. (Dkt. No. 120-7.) The Plaintiff denied that she ever physically struck or threatened Defendant McGowan. (Dkt. No. 120-3 at 23.) According to the Plaintiff, she did not pose a threat to Defendant McGowan as she was asleep in her bed until Defendant McGowan woke her up, threw her to the ground, and arrested her without probable cause. (Id. at 19-24.) As to whether the Plaintiff was resisting arrest, the Plaintiff conceded that she was "kicking away, trying to get out from underneath" Defendant McGowan but that Defendant McGowan remained in complete control. (Id. at 22.)
Considering the totality of the circumstances, the incompatible testimonies of the Plaintiff and McGowan create a genuine issue of material fact in this case. The Plaintiff and Defendant McGowan have given starkly contrasting accounts as to the circumstances of the Plaintiff's arrest. The Plaintiff testified that Defendant McGowan was the only officer in the room at the time she was arrested. (Dkt. No. 120-3 at 21.) The Plaintiff testified that the entire incident was in the dark, she was terrified, and yelling at McGowan to get out of her house. (Id. at 20; Dkt. No.70-3 at 36.) The Plaintiff testified that Defendant McGowan took her to the floor from her bed and then violently pulled her back up to her feet. (Dkt. No.70-3 at 34.) The Plaintiff denied that she ever struck Defendant McGowan because Defendant McGowan had "complete control of the situation" and left the Plaintiff bloody and bruised. (Dkt. No. 120-3 at 23.) The Plaintiff testified that her knee was bloodied by Defendant McGowan throwing her to the floor. (Id. at 30.) The Plaintiff's account is that she was attacked and arrested without any cause by Defendant McGowan. In contrast, Defendant McGowan alleges that she arrested the Plaintiff because the Plaintiff physically attacked her and poked her in the eye. (Dkt. No. 120-1 at 45.)
Whether the Plaintiff or Defendant McGowan was the initial aggressor who used force is an issue of fact that cannot be resolved by the court. If, as the Plaintiff testified, Defendant McGowan took her to the ground out of her bed without provocation, the use of force could be found to be unreasonable. The Plaintiff testified that she resisted arrest only after Defendant McGowan used force in taking the Plaintiff to the ground. (Dkt. No. 120-3 at 22-23.) The undersigned concludes that a genuine issue of material fact exists as to whether Defendant McGowan was objectively reasonable in using force during her arrest of the Plaintiff and recommends that the Defendants' Motion be denied as to the § 1983 excessive force claim.
Defendant McGowan argues that she is entitled to qualified immunity. (Dkt. No. 120 at 45-46.) "Qualified immunity shields government officials from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects officers from liability for "bad guesses in gray areas" and bases liability on the violation of bright-line rules. Id. (quoting Braun v. Maynard, 652 F.3d 557, 560 (4th Cir. 2011)). To determine whether a defendant is entitled to qualified immunity, the court must examine whether the defendant violated the Plaintiff's constitutional or statutory rights and, if so, whether the Defendant's "conduct was objectively reasonable in view of the clearly established law at the time of the alleged event." Id. Given the clear differences between the accounts given by the Plaintiff and Defendant McGowan, a genuine issue of material fact exists as to whether qualified immunity bars the Plaintiff's claim. A reasonable jury could believe the Plaintiff that she was awakened in her own bed, forcefully taken to the ground without provocation and arrested without probable cause.
2) State Law Claims Against City
The Plaintiff asserts her state law claims against the City for trespass, invasion of privacy, negligent hiring, negligent supervision, negligent retention, assault, battery, false imprisonment, and defamation under the South Carolina Tort Claims Act ("the Act"), S.C. Code § 15-78-10 et seq. The Act "governs all tort claims against governmental entities." Hawkins v. City of Greenville, 358 S.C. 280, 292, 594 S.E.2d 557, 563 (Ct. App. 2004) (citing Flateau v. Harrelson, 355 S.C. 197, 203, 584 S.E.2d 413, 416 (Ct. App. 2003)). All governmental entities may be held liable for their torts as a private individual would be liable subject to the limitations and exemptions of the Act. Id. (citing S.C. Code Ann. § 15-78-40 (Supp. 2003)). S.C. Code Ann. § 15-78-30(d) defines "governmental entity" as "the State and its political subdivisions." The Act is the exclusive remedy for any tort committed by an employee of a governmental entity. "An employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except...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. The limitations and exemptions in the act must be liberally construed in order to limit the liability of the State. Hawkins, 358 S.C. at 292. "The governmental entity asserting the Act as an affirmative defense bears the burden of establishing a limitation upon liability or an exception to the waiver of immunity." Id. S.C. Code Ann. § 15-78-60 provides forty "exceptions" to the limited waiver of sovereign immunity the Act provides.
a) Intentional Torts
The Plaintiff's claims for trespass, invasion of privacy, assault, battery, false imprisonment, and defamation are all intentional torts under South Carolina law. The Defendants argue that these claims are barred by exceptions to the Act (Dkt. No. 120 at 11-18) as well as on their merits (Id. 18-37.).
i) Trespass Claim
The third cause of action is brought against the City for trespass under state law. (Dkt. No. 54 ¶¶ 183-90.) This court has already recommended that a portion of this claim is precluded under the doctrine of collateral estoppel. (Dkt. No. 166 at 13.) The court now concludes that no genuine issue of material fact exists as to the Plaintiff's third cause of action, and the City is entitled to summary judgment. Additionally, the claim is barred by S.C. Code § 15-78-60(9).
"For a trespass action to lie, 'the act must be affirmative, the invasion of the land must be intentional, and the harm caused by the invasion of the land must be the direct result of that invasion.'" Hawkins v. City of Greenville, 358 S.C. 280, 296, 594 S.E.2d 557, 566 (Ct. App. 2004) (quoting Mack v. Edens, 320 S.C. 236, 240, 464 S.E.2d 124, 127 (1995)). Under South Carolina law, a trespass is limited to the protection of property interests; i.e., any interference with "one's right to the exclusive, peaceable possession of his property." Ravan v. Greenville Cnty., 315 S.C. 447, 463, 434 S.E.2d 296, 303 (Ct. App. 1993); see also Hedgepath v. Am. Tel. & Tel. Co., 559 S.E.2d 327, 337 (Ct. App. 2001) (Defining trespass as any intentional invasion of the plaintiff's interest in the exclusive possession of his property.). "The essence of trespass is the unauthorized entry onto the land of another." Id.
This court has already concluded that the Defendants' entry onto the Plaintiff's mother's property and into her home was lawful because exigent circumstances existed to support a warrantless entry. (Dkt. No. 166 at 17-21.) The court concluded that those exigent circumstances continued to exist through the time the Defendants assured that the no emergency existed involving the Plaintiff, which required entry into the Plaintiff's bedroom. (Id.) Additionally, once the individual Defendants made entry into the residence, the evidence is uncontroverted that the Plaintiff's mother took them to the Plaintiff's bedroom without any objection. (Dkt. Nos. 120-1 at 23; 120-4 at 4.) As such, there is no evidence in the record of an unauthorized entry into the Plaintiff's mother's property.
The Plaintiff's trespass claim is additionally barred by an exception to the Act as well. Section 15-78-60(9) states that a government entity is not liable for any loss resulting from "entry upon any property where the entry is expressly or impliedly authorized by law." S.C. Code § 15-78-60(9). The Defendants entry into the home was expressly or impliedly authorized by law. The damages recoverable from a trespass action are "strictly limited to damages to one's property interests." Babb v. Lee Cty. Landfill SC, LLC, 405 S.C. 129, 141, 747 S.E.2d 468, 474 (2013). Therefore, the Plaintiff's trespass claim against the City is barred by subsection 9 of Section 15-78-60 as well. The undersigned concludes that the City is entitled to summary judgment as to the Plaintiff's third cause of action.
ii) Invasion of Privacy Claim
The Plaintiff's fourth cause of action asserts a state law invasion of privacy claim against the City. (Dkt. No. 54 ¶¶ 191-200.) The Supreme Court of South Carolina has specified the following three distinct causes of action for invasion of privacy:
[1] The unwarranted appropriation or exploitation of one's personality, [2] the publicizing of one's private affairs with which the public has no legitimate concern, or [3] the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 478, 514 S.E.2d 126, 130 (1999) (quoting Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956)). There are no allegations that anyone appropriated or exploitated the Plaintiff's personality or publicized the Plaintiff's private affairs. Therefore, the court focuses its analysis on the third type of invasion of privacy claims.
To establish wrongful intrusion into private affairs, Plaintiff must plead and prove the following elements:
(1) Intrusion. An intrusion may consist of watching, spying, prying, besetting, overhearing, or other similar conduct. Whether there is an intrusion is to be decided on the facts of each case.
(2) Into that which is private. The intrusion on the plaintiff must concern those aspects of himself, his home, his family, his personal relationships, and his communications which one normally expects will be free from exposure to the defendant.
Johnson v. Ambling Mgmt. Co., No. 8:07-cv-1614-HFF, 2008 WL 4372909, at *2-3 (D.S.C. Sept. 17, 2008) (quoting Snakenberg v. Hartford Cas. Ins. Co., Inc., 299 S.C. 164, 171-172, 383 S.E.2d 2, 6 (S.C.App.1989)) (emphasis in original). "The damage in an action for wrongful intrusion into private affairs consists of the unwanted exposure resulting from the intrusion, which includes the shame, humiliation, and emotional distress suffered by the plaintiff." Williams v. Bank of Am., Nat. Ass'n, No. 4:14-cv-04809-RBH, 2015 WL 3843251, at *5 (D.S.C. June 19, 2015) (citation omitted).(3) Substantial and unreasonable enough to be legally cognizable. The law does not provide a remedy for every annoyance that occurs in everyday life.... [T]o constitute an invasion of privacy, the defendant's conduct must be of a nature that would cause mental injury to a person of ordinary feelings and intelligence in the same circumstances. The law protects normal sensibilities, not heightened sensitivity, however genuine. Whether the conduct in question meets this test is, in the first instance, a question of law for the court.
(4) Intentional. The defendant's act or course of conduct must be intentional. For purposes of civil liability, an act is intentional if (1) it is done willingly; and either (2) the actor desires the result of his conduct, whatever the likelihood of that result happening; or (3) the actor knows or ought to know the result will follow from his conduct, whatever his desire may be as to that result.
The Plaintiff attempts to recast her trespass claim as an invasion of privacy claim by arguing that the Defendants' entry into her bedroom was an invasion of privacy. (Dkt. No. 141 at 18.) The Plaintiff's argument is unavailing. As this court has already concluded, the Defendants' entry into the Plaintiff's bedroom was lawful because exigent circumstances existed to ensure she was not in an emergency situation. Therefore, the Plaintiff has failed to present any evidence that an intrusion occurred to support her claim for invasion of privacy. Additionally, there was no "exposure" that resulted from any invasion of privacy. "When a plaintiff bases an action for invasion of privacy on 'intrusion' alone, bringing forth no evidence of public disclosure, it is incumbent upon him to show a blatant and shocking disregard of his rights, and serious mental or physical injury or humiliation to himself resulting therefrom." Rycroft v. Gaddy, 281 S.C. 119, 124-25, 314 S.E.2d 39, 43 (Ct. App. 1984) (Shorter v. Retail Credit Co., 251 F.Supp. 329 (D.S.C.1966)). The alleged breaches of the Plaintiff's rights did not result from any invasion of her privacy when the Defendants entered her bedroom. The damages sought by the Plaintiff resulted from her arrest and the force used to arrest her. There was no exposure of the Plaintiff's private matters. Therefore, the Plaintiff has failed to provide any evidence to support an invasion of privacy claim under South Carolina law. The undersigned recommends that the Defendants Motion be granted as to her state law invasion of privacy claims.
iii) Assault and Battery Claims
The Plaintiff's eighth and ninth causes of action are for assault and battery, respectively. (Dkt. No. 54 ¶¶ 230-236.) The Plaintiff's assault and battery claims brought against the City and are based solely on the actions of Defendant McGowan. (Id.) Under South Carolina law, "an assault occurs when a person has been placed in reasonable fear of bodily harm by the conduct of the defendant, and a battery is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree." Jones by Robinson v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 175, 456 S.E.2d 429, 432 (Ct. App. 1995). "[A] law enforcement officer who uses reasonable force in effecting a lawful arrest is not liable for assault or battery. However, if the officer uses excessive force, or 'force greater than is reasonably necessary under the circumstances,' the officer may be liable for assault or battery." McCoy v. City of Columbia, 929 F.Supp.2d 541, 567 (D.S.C. 2013) (internal citations omitted).
Under the Act, the City is immune from an employee's "conduct 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(17) "Although the [Act] generally is not intended to protect state employees from liability for intentional torts, it does not automatically grant state entities categorical immunity from any intentional tort committed by an employee acting within the scope of his official duties." Newkirk v. Enzor, 240 F. Supp. 3d 426, 436-7 (D.S.C. 2017) (internal quotation marks and citation omitted). The terms "actual fraud, actual malice, intent to harm, or a crime involving moral turpitude" must be liberally construed in favor of the governmental defendant, but these terms "cannot be fairly construed to encompass every instance of any intentional tort." Id. at 437. See, e.g., McBride v. Sch. Dist. of Greenville Cty., 389 S.C. 546, 563-66, 698 S.E.2d 845, 854-55 (Ct. App. 2010) (finding causes of action for abuse of process and malicious prosecution are not barred by § 15-78-60(17) simply because of their elements). "Whether immunity applies therefore depends upon the facts of the case, and, where material facts are disputed, summary judgment is inappropriate and '[i]mmunity under the statute is an affirmative defense that must be proved by the defendant at trial.'" Newkirk, 240 F.Supp.3d at 437 (quoting Frazier v. Badger, 361 S.C. 94, 101, 603 S.E.2d 587, 590 (2004)).
This court has already concluded supra, in analyzing the Plaintiff's § 1983 excessive force claim, that a genuine issue of material fact exists as to the events that occurred in the Plaintiff's bedroom leading to her arrest. There is no question that Defendant McGowan was acting within the scope of her employment as a police officer at the time of the incident. According to the Plaintiff's account of the incident, Defendant McGowan, described by the Plaintiff as a "gigantic, violent blob," attacked her and took her to the ground out of her bed for no reason with "enough violence that" she required medical treatment. (Dkt. No. 120-3 at 20-24.) The Plaintiff's testimony was that she kicked at Defendant McGowan trying to get free after Defendant McGowan had attacked her and taken her to the ground. (Dkt. No. 120-3 at 22.) The Plaintiff testified that Defendant McGowan was in "complete control of the situation." (Id. at 23.) Just as the Plaintiff has a viable § 1983 excessive force claim against Defendant McGowan, there is a genuine issue of material fact as to whether the City is liable under the Act for the alleged assault and battery committed by McGowan. See, e.g., Barfield v. Kershaw Cty. Sheriff's Office, 638 F. App'x 196, 201-03 (4th Cir. 2016) ("[I]n the case of a viable excessive force claim under § 1983, Barfield's...battery claim [under the Act] against the KCSO also survives [summary judgment]."). The undersigned recommends that the Defendant's Motion be denied as to the eighth and ninth causes of action.
iv) False Imprisonment Claim
The Plaintiff's tenth cause of action is for false imprisonment brought under state law against the City. (Dkt. No. 54 ¶¶ 237-244.) The Plaintiff alleges that she was falsely imprisoned by being questioned in her bedroom and being issued a "false citation" and arrested by Defendant McGowan. (Id. ¶ 239.) The Plaintiff alleges that Defendant Wohlleb assisted in arresting her and Defendant Kouris imprisoned her by transporting her to the jail. (Id.)
In her Opposition to the Motion, the Plaintiff only addressed her arrest by Defendant McGowan in addressing her claim for false imprisonment. (Dkt. No. 141 at 18.) Therefore, this court concludes that the Plaintiff concedes the Defendants' Motion as to any state law claim for false imprisonment based on the actions of Defendants Wohlleb or Kouris. See Polite v. CACI, Inc., No. 3:15-01520-MGL, 2016 WL 6830971, at *1 (D.S.C. Nov. 21, 2016) (citing Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir. 1986) ("If a party fails to assert a legal reason why summary judgment should not be granted, that ground is waived and cannot be considered or raised on appeal.")).
"False imprisonment is 'deprivation of a person's liberty without justification.'" Gist v. Berkeley Cty. Sheriff's Dep't, 336 S.C. 611, 615, 521 S.E.2d 163, 165 (Ct. App. 1999) (quoting Caldwell v. K-Mart Corp., 306 S.C. 27, 30, 410 S.E.2d 21, 23 (Ct. App.1991)). "An action for false imprisonment may not be maintained where the plaintiff was arrested by lawful authority." Id. (citiation omitted).
The fundamental issue in determining the lawfulness of an arrest is whether there was probable cause to make the arrest. Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise. Although the question of whether probable cause exists is ordinarily a jury question, it may be decided as a matter of law when the evidence yields but one conclusion.McBride, 389 S.C. at 567, 698 S.E.2d at 856 (quoting Law v. S.C. Dep't of Corr., 368 S.C. 424, 440-41, 629 S.E.2d 642, 651 (2006)). This court has already concluded that a genuine issue of material fact exists as to whether probable cause existed when Defendant McGowan arrested the Plaintiff. (Dkt. No. 166 at 23-24.) As with the Plaintiff's claims for assault and battery, a genuine issue of material fact exists as to whether immunity under the Act applies to her false imprisonment claim. See Newkirk, 240 F.Supp.3d at 435-37 (finding § 15-78-60(17) did not automatically bar the plaintiff's false imprisonment claim merely because they were intentional torts, and noting "each tort [the plaintiff] alleges could be committed without actual malice or intent to harm"). The undersigned concludes that a genuine issue of material fact exists as to whether Defendant McGowan had probable cause to arrest the Plaintiff and as to whether the City is immune under the Act. Therefore, undersigned recommends that the Defendant's Motion be denied as to the Plaintiff's state law false imprisonment claim against the City.
v) Defamation Claim
The Plaintiff alleged in her Amended Complaint that Defendants McGowan and Wohlleb told Defendant Kouris that the Plaintiff abused her mother and that her mother had her arrested. (Dkt. No. 54 ¶ 251.) The Plaintiff alleged that Defendant Kouris relayed these statements to the jail when booking the Plaintiff. (Id.) "The tort of defamation permits a plaintiff to recover for injury to her reputation as the result of the defendant's communications to others of a false message about the plaintiff." Paradis v. Charleston Cty. Sch. Dist., No. 2016-001337, 2018 WL 3636581, at *1 (S.C. Ct. App. Aug. 1, 2018) (quoting McBride, 389 S.C. at 559, 698 S.E.2d at 852). To prove defamation, a plaintiff must show "(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." Id. (quoting McBride, 389 S.C. at 559, 698 S.E.2d at 852). "The publication of a statement is defamatory if it tends to harm the reputation of another as to lower [her] in the estimation of the community or to deter third persons from associating or dealing with [her]." Id. (quoting McBride, 389 S.C. at 559, 698 S.E.2d at 852).
"Additionally, a statement may be actionable per se or not actionable per se." [McBride, 389 S.C. at 559, 698 S.E.2d at 852] "The determination of whether or not a statement is actionable per se is a matter of law for the court to resolve." Id. (quoting Erickson, 368 S.C. at 465, 629 S.E.2d at 664). "When the statement is classified as actionable per se, the defendant is presumed to have acted with common law malice, and the plaintiff is presumed to have suffered general damages." Id. "When the statement is not actionable per se, 'the plaintiff must plead and prove both common law malice and special damages.'" Id. (quoting Erickson, 368 S.C. at 465, 629 S.E.2d at 664). "Common law malice means the defendant acted with ill will toward the plaintiff, or acted recklessly or wantonly, i.e., with conscious indifference of the plaintiff's rights." Id. (quoting Erickson, 368 S.C. at 466, 629 S.E.2d at 665). "Slander is actionable per se when the defendant's alleged defamatory statements charge the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession." Id. at 560-61, 698 S.E.2d at 852 (quoting Goodwin v. Kennedy, 347 S.C. 30, 36, 552 S.E.2d 319, 322-23 (Ct. App. 2001)).Paradis, No. 2016-001337, 2018 WL 3636581, at *2.
The presumption of common law malice when a defamatory statement is actionable per se does not necessarily equate with "actual malice" to create immunity under the Act. See Seaton v. City of N. Charleston, No. 2:10-cv-03186-DCN, 2012 WL 6186158, at *5 (D.S.C. Dec. 12, 2012) (holding that the "common law malice" presumed when a defamatory statement is actionable per se was "not necessarily 'actual malice'....used in the [§ 15-78-60 (17)]."). However, immunity under the Act is not relevant here because the court concludes that the Plaintiff has failed to produce any evidence to support her claim.
The Plaintiff's defamation claim is based on her own beliefs and suspicions, but lacks evidence in the record. The Plaintiff "must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence." Dash, 731 F.3d at 311. The Plaintiff conceded that she does not have any evidence that Defendant Kouris told anyone at the jail that she was abusing her mother. The Plaintiff extensively testified that she did not hear anyone state any defamatory statements and that she has no admissible evidence to support her claims:
Q: Now, let me ask you this, do you have any evidence that Kouris told them that you were abusing your mother?(Dkt. No. 120-3 at 28.)
A: No. Do I have evidence of it? The evidence is in the fact that the jail was taunting me with it.
Q: You've alleged that Kouris said something to one of the detention-center employees about you having your mother arrested or calling --or your mother having you arrested or her calling about it. Did you actually hear that information, or are you assuming it based on the fact that you were taunted?(Id. at 42-43.)
A: I'm assuming it based on the fact that I was taunted. I really -- it was Washington at the jail that was taunting me with, "your mother had you arrested." She got this information from someone else.
Q: And is Washington's statement or statements the only evidence you have that Kouris somehow spread that information?(Id. at 45.)
A: That is the only information I have that Kouris-
Q: Do you have any specific evidence that the allegations of abuse by you on your mom came from Officer McGowan?(Id. at 28.)
A: No, but it ended up at the jail.
Q: You have testified at some point that you're pretty sure McGowan contacted the jail about why you'd been arrested. What's the basis for that opinion?(Id. at 46-47.)
A: Somebody told the jail that I had a mother. I had a mother in the house. That my mother was --the taunting of, "your mother got you arrested", and that I was abusing my mother ended up at the jail. And for a 50-year-old woman to be in jail, why my mother was a topic of conversation has to have come from somewhere. And so I'm just--I've, out loud, wondered if it --I want to know who did that. Who --... and to be told that my mother had me arrested at the jail, it had to come from somewhere, and I need to know where it came from.
Q: Okay. Is there anything--anyone else that would --that forms the basis of that opinion that McGowan somehow went to the jail, other than Washington?
A: No, no, no.
The Plaintiff has not presented any evidence that any of the Defendants made any false or defamatory statement to anyone. The Plaintiff attempts to create a genuine issue of material fact by filing an affidavit with her Opposition. (Dkt. No. 79-25.) The Affidavit is not signed but instead only marked with "/s" along with her redacted name and is not dated. (Id.) The Affidavit does not comply with the requirements of 28 U.S.C. § 1746. "Affidavits submitted on summary judgment do not deserve to receive unthinking acceptance by the court." In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991). Federal Rule of Civil Procedure 56(c)(4) specifically requires that affidavits submitted on summary judgment contain admissible evidence and be based on personal knowledge. "At the summary judgment stage, if an affidavit is inconsistent with the affiant's prior deposition testimony, courts may disregard the affidavit pursuant to the sham-affidavit rule." Kinser v. United Methodist Agency for the Retarded-W. N. Carolina, Inc., 613 F. App'x 209, 210 (4th Cir. 2015). There must be a "bona fide inconsistency" between the affidavit and the affiant's prior testimony to strike an affidavit. Id. (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 n. 7 (4th Cir. 2001)). "A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct." Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984).
As quoted by the court supra, the Plaintiff was repeatedly asked what evidence she had that any defendant defamed her and she repeatedly testified that she had none. In her affidavit, the Plaintiff now asserts that she "overheard" a "male police officer, which had to be either Doxey or Wohlleb, explaining to Kouris, that my mother had me arrested, and that my mother made the phone call that got me arrested." (Dkt. No. 79-25.) The Plaintiff then speculates in her affidavit that "Kouris apparently repeated these comments to the jail" and that she "believes" the Defendant McGowan "made her false statements covering up for my former neighbor." (Id.)
First, this court finds that the Plaintiff's affidavit is in direct contradiction of her deposition testimony. As quoted, the Plaintiff had never before reported overhearing anything until her affidavit was filed. Additionally, the Plaintiff explicitly testified that she did not overhear any conversations between the officers. (Dkt. No. 120-3 at 39.) Given this stark contrast, the undersigned concludes that the affidavit may not be considered under the sham-affidavit rule. Second, even if the affidavit is truthful and not a barred under the rule, the affidavit does not create an issue of material fact. The Plaintiff still does not allege that Defendant McGowan said anything. (Dkt. No. 79-25.) The affidavit alleges that the Plaintiff "overheard" a "male police officer, which had to be either Doxey or Wohlleb" state something defamatory to Kouris. (Id.) The Plaintiff does not actually state that Doxey made a defamatory statement or that Wohlleb made a defamatory statement. No reasonable jury could conclude that either Doxey or Wohlleb made such a statement considering that the Plaintiff, with the full benefit of discovery, cannot state who made the alleged statement. As to Defendant Kouris, the Plaintiff only speculates in the affidavit that he "apparently" made a defamatory statement to jail staff. (Id.) This court concludes that the Plaintiff's affidavit must be disregarded under the sham affidavit rule, and even if the affidavit is considered, the Plaintiff has not presented any evidence that any Defendant made a defamatory statement. The undersigned recommends that the Defendants' Motion be granted as to the Plaintiff's defamation claim.
Not only is the Plaintiff's defamation claim based entirely on speculation that the Defendants defamed her to jail staff, there is evidence in the record in the Plaintiff's related case Meyer v. Cannon et al., 2:16-cv-530-RMG-MGB ("530 Case") that the Plaintiff was the first person to discuss that her arrest could be in connection with abusing her mother. The Plaintiff testified that the first mention of her mother by staff at the jail was after she was restrained in a restraint chair at the jail. (Dkt. No. 120-3 at 41, 44.) Videos from the jail show that, immediately prior to being placed in the restraint chair, the Plaintiff brought up that she was arrested on account of her mother. The Plaintiff first asked, "Am I being arrested for mistreatment of my [expletive] mother?" (530 Case, Dkt. No. 59 Video 4 at 23:32:40.) The Plaintiff repeated the question several times. One of the officers tells the Plaintiff that they are not there to talk about why she was arrested. (Id.) The Plaintiff later stated, "Here's the thing, you came into my house in Park Circle based on a call from my Alzheimer's ridden..." (530 Case, Dkt. No. 59 Video 8 at 1:33:10.)
b) Negligence Claims
The Plaintiff alleges that the City was negligent in hiring, supervising, and retaining Defendant McGowan (collectively "negligence claims"). (Dkt. No. 54 ¶¶ 201-229.) These claims fall under the provisions of the Act. See generally Hawkins v. City of Greenville, 358 S.C. 280, 292, 594 S.E.2d 557, 563 (Ct. App. 2004) (citing Flateau v. Harrelson, 355 S.C. 197, 203, 584 S.E.2d 413, 416 (Ct. App.2003)); see also Shell v. S.C. Dep't of Mental Health, No. 2:15-cv-04213-MBS-MGB, 2017 WL 2628006, at *4 (D.S.C. May 22, 2017), report and recommendation adopted, No. 2:15-cv-4213-MBS-MGB, 2017 WL 2618822 (D.S.C. June 16, 2017) ("Allegations of negligent hiring and supervision fall under the Act.").
"Negligent hiring cases 'generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties.'" Kase v. Ebert, 392 S.C. 57, 63, 707 S.E.2d 456, 459 (Ct. App. 2011) (citing Doe v. ATC, 367 S.C. 199, 206, 624 S.E.2d 447, 450 (Ct. App. 2005)). Similarly, to prove negligent retention, a plaintiff must show that "the employer had knowledge of its employee's habit of prior wrongdoings, and despite the foreseeability of harm to third parties, the employer failed to terminate the offending employee before he caused the plaintiff harm." Callum v. CVS Health Corp., 137 F. Supp. 3d 817, 860 (D.S.C. 2015) (citing Doe, 367 S.C. at 205-06, 624 S.E.2d at 450-51). To meet her burden of showing negligent retention, a plaintiff "must demonstrate some propensity, proclivity, or course of conduct sufficient to put the employer on notice of the possible danger to third parties." Id. (citing Doe, 367 S.C. at 206, 624 S.E.2d at 451). An employer is liable under a theory of negligent supervision when an employee:
(1) is upon the premises of the employer, or is using a chattel of the employer,Moore by Moore v. Berkeley Cty. Sch. Dist., 326 S.C. 584, 590, 486 S.E.2d 9, 12 (Ct. App. 1997) (citing Degenhart v. Knights of Columbus, 309 S.C. 114, 115-17, 420 S.E.2d 495, 496 (1992)).
(2) the employer knows or has reason to know that he has the ability to control his employee, and
(3) the employer knows or should know of the necessity and opportunity for exercising such control.
Defendant McGowan was first hired by the City as a police officer in 2011 after serving as an officer with the Charleston Police Department. (Dkt. No. 54 ¶ 204.) Defendant McGowan left the City and moved to Orlando in March of 2013, but subsequently returned and was rehired in October of 2013. (Dkt. No. 120 at 41.) The Plaintiff argues that the City was negligent and breached its own policy by twice hiring the Defendant McGowan in spite of her record with CPD. (Dkt. No. 141 at 20.) Neither party clearly outlines with evidentiary support all of the evidence in the record regarding Defendant McGowan's employment with CPD and the City.
The City concedes that Defendant McGowan's CPD personnel file included four investigations by the Office of Professional Standards ("OPS"). (Dkt. No. 120 at 38.) The City argues that only one of those investigations is relevant to the case at bar, which related to a warrantless entry involving Defendant McGowan. (Id. at 38-39) To support their argument regarding the one incident that is relevant, the City provided a Disposition Form showing Defendant McGowan was "exonerated" of any wrongdoing and that she received "additional training." (Dkt. No. 120-16.) However, the Plaintiff submitted an internal CPD letter issued in the same investigation as the Disposition Form. (Dkt. No. 79-8.) The letter was dated June 23, 2010, before the final signatures on the Disposition Form. The letter found that Defendant McGowan lacked probable cause to enter a residence without a warrant and lacked probable cause to arrest an individual within the residence for disorderly conduct. (Dkt. No. 79-8 at 6-7.) The letter concludes with a recommendation that Defendant McGowan be suspended for one day based on the arrest without probable cause, four days based on the unlawful entry into a residence, and one day for issuing a traffic citation without probable cause. (Dkt. No. 79-8 at 8.) There is no explanation as to the inconsistencies between the Disposition Form and the letter.
The City does not provide evidence to support its argument that three of the four OPS investigations are irrelevant.
The Disposition Form contains four dated signatures. (Dkt. No. 120-16.) The division commander signed the form on May 5, 2010. The Bureau Commander signed the form on May 7, 2010. The Chief of Police signed the form on July 29, 2010. Defendant McGowan signed the form on August 4, 2010.
The Plaintiff has also submitted a second Disposition Form from a separate incident. (Dkt. No. 79-19.) The second Disposition Form "sustained" an allegation that Defendant McGowan altered a traffic ticket to a higher charge due to a motorist's attitude. (Id.) This disciplinary action does not appear relevant to the Plaintiff's claims regarding unlawful warrantless entry and excessive force in the case at bar. The City provided another record indicating that Defendant McGowan was investigated for improper use of leave but that the allegation was determined to be "unfounded." (Dkt. No. 120-21.)
Based on the evidence before the court, no genuine issue of material fact exists as to the Plaintiff's negligence claims against the City. The Plaintiff has only provided evidence of one incident that appears to be relevant to the case at bar. The prior warrantless entry investigation that ended in the Plaintiff's exoneration is the only evidence cited by the Plaintiff to support her negligence claims. (Dkt. No. 141 at 20.) Although the CPD records are not consistent, it is undisputed that the final disposition of the allegations against Defendant McGowan was that she was fully exonerated. This exoneration would not put the City on notice that Defendant McGowan was would in any way be a danger to third parties. Likewise, the exoneration would not show that Defendant McGowan had a proclivity towards or habit of wrongful behavior to establish a claim for negligent retention. There is no evidence that the City was negligent in supervising Defendant McGowan based on her prior personnel record because there is no evidence that the City knew or had reason to know Defendant McGowan required some type of additional supervision. The Plaintiff has failed to present any evidence that the City was negligent in hiring, retaining, or supervising the Plaintiff. The undersigned recommends that the Defendants' Motion be granted as to the Plaintiff's negligence claims.
The Plaintiff additionally cites to a report prepared by an expert in her mother's state court case. (Dkt. No. 141 at 20; see also Dkt. No. 79-20.) The court does not find the expert's report to be of any probative value as it stands in the record. The report first stated that it is "preliminary" and "may change." (Dkt. No. 79-20 at 1.) The report stated that because the Plaintiff's attorney had provided "materials" to defense counsel, the expert did not "reiterate in this preliminary opinion the list of those factual materials and depositions" that formed the basis of his opinions. (Id.) In other words, the report completely omitted what underlying materials the expert viewed to form his opinions. The report then gave opinions as to how facts, with no citations to the record, applied to the law and rendered legal opinions. Expert evidence must be "not only relevant but reliable." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). The Fourth Circuit has held that "[a] reliable expert opinion must be based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods." Oglesby v. General Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999). Given that the report relied on by the Plaintiff explicitly warranted that it may change, did not contain any citations to any evidence of record, and primarily presented legal conclusions, the undersigned concludes that the expert report is not sufficient to create a genuine issue of material fact.
Conclusion
Based on the foregoing, this court RECOMMENDS that the Defendants' Motion and Memorandum in Support of Motion for Summary Judgment as to All Remaining Claims (Dkt. No. 120) be GRANTED as to the Plaintiff's claims for trespass, invasion of privacy, negligent hiring, negligent supervision, negligent retention, and defamation. This court additionally RECOMMENDS that the Defendants' Motion and Memorandum in Support of Motion for Summary Judgment as to All Remaining Claims (Dkt. No. 120) be DENIED as to the Plaintiff's 42 U.S.C. § 1983 claim for excessive force against Defendant McGowan and state law assault, battery, and false imprisonment claims.
IT IS SO RECOMMENDED. August 16, 2018 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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).