Opinion
CIVIL ACTION NO. 2:19-1754-BHH-BM
09-26-2019
Lamont Simmons, Plaintiff, v. Charleston County Sheriff's Office and Joseph Stokes, individually, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff asserting claims against the Defendants arising out of his arrest by the Defendant Stokes, a Charleston County Sheriff's Deputy, on January 28, 2018. Specifically, Plaintiff asserts claims of excessive force against the Defendant Stokes pursuant to 42 U.S.C. § 1983 (First Cause of Action), a § 1983 claim for excessive force against the Defendant Charleston County Sheriff's Office (Second Cause of Action), a state law claim for negligent training/negligent supervision against the Defendant Charleston County Sheriff's Office (Third Cause of Action), a state law claim for battery against both Defendants (Fourth Cause of Action), a state law claim for assault against both Defendants (Fifth Cause of Action), and a claim for negligence against both Defendants (Sixth Cause of Action). Plaintiff seeks monetary damages. See generally, Complaint.
42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
The Defendants have filed a motion to dismiss pursuant to Rule 12, Fed.R.Civ.P., asserting therein that the Charleston County Sheriff's Office (CCSO) is entitled to dismissal as a party Defendant based on Eleventh Amendment immunity from suit in this Court, while the Defendant Stokes seeks dismissal as a party Defendant from Plaintiff's state tort law causes of action. When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 550 U.S. 544, 570 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable." Vogt v. Greenmarine Holding, LLC, 318 F.Supp. 2d 136, 144 (S.D.N.Y. 2004). Here, after careful review and consideration of the allegations of the Complaint, the arguments of the parties, and the applicable caselaw, the undersigned finds that the Defendants' motion should be granted.
Charleston County Sheriff's Office
Plaintiff alleges in his Complaint that at all relevant times the Defendant Stokes was a Charleston County Sheriff's Deputy employed by the Charleston County Sheriff's Office. Complaint, ¶ ¶ 4, 11. Plaintiff alleges that on the evening of January 28, 2018, after reporting for duty for his assigned shift, the Defendant Stokes encountered Plaintiff at a gas station and used excessive force against the Plaintiff in order to subdue him after allegedly observing a clear plastic bag containing a white powdery substance in Plaintiff's pocket. See generally, Complaint, ¶ ¶ 13-34. Plaintiff alleges he suffered numerous injuries as a result of Stokes' actions. Id., ¶ ¶ 39-40. Plaintiff alleges in his Second Cause of Action that the Defendant Charleston County Sheriff's Office deprived him of his constitutional rights by failing to adequately discipline, train, investigate, supervise, or otherwise direct its officers (as a matter of policy and custom) concerning the civil rights of the citizens of Charleston, and that as a direct result of the CCSO's deliberate indifference he was subjected to unlawful excessive force by the Defendant Stokes. Id., ¶ ¶ 55-59. In his Third Cause of Action, Plaintiff alleges that CCSO was negligent in the training and supervision of its employees, and as such was responsible for the battery (Fourth Cause of Action) and assault (Fifth Cause of Action) he suffered. Plaintiff again alleges negligence on the part of CCSO in his Sixth Cause of Action.
CCSO asserts in its motion, and the undersigned agrees, that it is entitled to dismissal as a party Defendant in this case because it enjoys Eleventh Amendment immunity from suit for damages in this federal court. Plaintiff opposes CCSO's motion, citing to the well established principal that municipalities may be held liable for unconstitutional conduct committed by their employees if "the action that is alleged to be unconstitutional implements or executes a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Dep't of Social Service, 436 U.S. 658, 690-691 (1978); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993) ["[A] municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury"]; Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988). However, the Charleston County Sheriff's Office is not a municipality subject to suit in federal court under this theory of liability, as it is well established that in South Carolina, a Sheriff's Office is an agency of the State, not of a municipality or even a county. Stewart v. Beaufort County, et al., 481 F.Supp.2d 483, 492 (D.S.C. 2007). As such, any claim against the Charleston County Sheriff's Office constitutes a suit against the state of South Carolina itself. Id.; see also Gulledge v. Smart, 691 F.Supp. 947 (D.S.C. 1988), aff'd., 878 F.2d 379 (1989); Carroll v. Greenville County Sheriff's Dept., 871 F.Supp. 844, 845-846 (D.S.C. 1994).
The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina, its integral parts (such as a Sheriff's Department), or its officials in their official capacities, by a citizen of South Carolina or a citizen of another state. See Alden v. Maine, 527 U.S. 706 (1999); College Savs. Bank v. Florida Prepaid Educ. Expense Bd., 527 U.S. 666 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)(reaffirming Hans v. Louisiana, 134 U.S. 1, 10 (1890) [holding that a citizen could not sue a state in federal court without the state's consent]; Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)[although express language of Eleventh Amendment only forbids suits by citizens of other States against a State, Eleventh Amendment bars suits against a State filed by its own citizens]; Alabama v. Pugh, 438 U.S. 781, 782 (1978); Will v. Michigan Dep't of State Police, 491 U.S. 58, 61-71 (1989). While the United States Congress can override Eleventh Amendment immunity through legislation, Congress has not overridden the States' Eleventh Amendment immunity in § 1983 cases. See Quern v. Jordan, 440 U.S. 332, 343 (1979).
Further, although a State may consent to a suit in a federal district court, Pennhurst, 465 U.S. at 99 & n.9, the State of South Carolina has not consented to such actions. To the contrary, the South Carolina Tort Claims Act expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another state. S.C. Code Ann. § 15-78-20(e). Therefore, the Defendant Charleston County Sheriff's Office is entitled to dismissal as a party Defendant in this case.
Notwithstanding the fact that the State of South Carolina has expressly not consented to suit in a federal District Court, a state may nonetheless waive its immunity as to any claims to which the State has made itself subject to suit in state court. Cf. Lapides v. Board of Regents of the Univ. System of Georgia, 535 U.S. 613, 619 (2002)[Noting that a state's voluntary appearance in federal court waives sovereign immunity to claims where a state has consented to suit in its own courts for such claims]; see also Cameron v. Cox, No. 10-1278, 2011 WL 1235308 at * 4 (D.S.C. Jan. 21, 2011) adopted by, 2011 WL 1212177 (D.S.C. Mar. 30, 2011). However, there has obviously been no waiver in this case, as CCSO's motion to dismiss is based on its immunity from suit. Moreover, even if there had been a waiver in this case, this waiver of immunity would not extend to claims for which the State has not waived its immunity from suit in state court. Cf. Stewart v. North Carolina, 393 F.3d 484, (4th Cir. 2005)[finding no waiver where state has not consented to suit in its own courts for such claims]. The State of South Carolina has not consented to suit for damages for federal constitutional violations, even in its own courts, as the South Carolina Torts Claim Act expressly waives the State's immunity from suit in state court only for specified state tort causes of action. See S.C. Code Ann. § 15-78-20(b), (e); cf. Bergemann v. Rhode Island Dep't of Environmental Management, 665 F.3d 336, 342-343 (1st Cir. 2011); Lombardo v. Pennsylvania Dep't. of Public Welfare, 540 F.3d 190, 198-199 (3d Cir. 2008) ["We hold that while voluntary removal waives a State's immunity from suit in a federal forum, the removing State retains all defenses it would have enjoyed had the matter been litigated in state court, including immunity from liability]; Embury v. King, 361 F.3d 562 (9th Cir. 2004).
Defendant Joseph Stokes
The Defendant Stokes asserts in the motion to dismiss that he is not a proper party Defendant in any of the Plaintiff's state law tort causes of action, and is therefore entitled to dismissal as a party Defendant from these claims. Again, the undersigned agrees.
The South Carolina Tort Claims Act (SCTCA) establishes the parameters for tort claims asserted against public officials or the state or local governments in South Carolina. See S.C.Code Ann. § § 15-78-20 and 15-78-30. As an employee of the Sheriff's Office, Stokes' alleged actions in the performance of his duties as a Sheriff's Deputy fall under the scope of the South Carolina Tort Claims Act; see generally, Complaint, at ¶ ¶ 4,11, 13, 44, 63, 65-66, 68, 73, 77-78 [All generally alleging that at the time of the events at issue Stokes was acting in his official capacity as a Sheriff's Deputy]; and the proper party Defendant for any claims arising out of the actions of governmental employees during the performance of their duties is the governmental entity itself, in this case the Charleston County Sheriff's Office, not the individual employee. Kinard v. Greenville Police Dep't, No. 10-3246, 2011 WL 3439292 at * 6 (D.S.C. Aug. 5, 2011) ["Governmental entities generally operate through their employees. Therefore, when an entity is sued because of the alleged tort of an employee acting within the scope of his or her employment, the Tort Claims Act provides that only the agency shall be named as a party."]; see also S.C.Code Ann. §15-78-70(c) [providing that a person bringing a tort claim under the SCTCA is required to name as the party defendant only the agency or the political subdivision for which the employee was acting, and that where an employee is individually named, the agency or political subdivision for which the employee was acting "must" be substituted as the party defendant].
Plaintiff advances two arguments in his response brief for why his state law causes of action should not be dismissed. First, Plaintiff argues that the SCTCA does not govern negligence, battery, or assault claims, as these actions are outside the scope of the SCTCA, and that therefore Stokes is a proper party Defendant for those state law causes of action because he can be individually liable for those claims. However, all of these claims are torts encompassed by the SCTCA. See Jones v. Winn Dixie Greenville, Inc., 456 S.E.2d 429, 432 (S.C.Ct.App. 1995) [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 . . . ."]; Risher v. Chapman, No. 16-292, 2018 WL 7824448 at * 10 (D.S.C. Nov. 20, 2018) [Finding plaintiff's negligence claim was not barred by SCTA where plaintiff alleged that a police officer intentionally used excessive force in the course of effectuating an arrest and that the police officer was also negligent in effectuating the arrest]; Report and Recommendation adopted by, 2019 WL 926414 (D.S.C. Feb. 26, 2019); Newkirk v. Enzor, 240 F.Supp. 3d 426, 435 (D.S.C. 2017) [Finding Plaintiff's South Carolina tort claims for assault, battery, and negligence/gross negligence/recklessness are subject to the limitations of SCTCA]. Therefore, Stokes is not the proper party Defendant for these state law tort claims.
The SCTCA does provide that a governmental entity is not liable for a loss resulting from employee conduct outside of the scope of their official duties, or for conduct which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude, and that the government employee may be sued individually for such conduct. See S.C. Code Ann. § § 15-78-60(17), 70(b); McCall v. Williams, 52 F.Supp. 2d 611, 615 (D.S.C. 1999)["SCTCA does not grant an employee 'immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.'"](quoting S.C. Code § 15-78-70(b)(Supp. 1997)); Brown v. County of Berkeley, 622 S.E.2d 533, 537-538 (S.C. 2005) [same]; see also Southern Holdings, Inc. v. Horry County, South Carolina, No. 02-1859, 2007 WL 896111 at * 8-9 (D.S.C. Mar. 21, 2007)[Discussing allowing claim against Defendant in individual capacity where Defendant is alleged to have acted outside the scope of his employment]. However, as noted, Plaintiff specifically alleges in his Complaint that Stokes was acting within the scope of his employment during the events at issue. While Plaintiff does also, at one point in his Complaint, state that Stokes acted with "malice" (as part of his federal § 1983 claim), that general and conclusory allegation without any facts to establish actual malice (a claim not even mentioned in his state tort law causes of action) is not sufficient to survive the Defendant's Rule 12 motion to dismiss. House v. New Castle County, 824 F.Supp. 477, 485 (D.Md. 1993) [Plaintiff's conclusory allegations insufficient to maintain claim]; see Bell Atlantic Corp., 550 U.S. at 555 ["While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . [f]actual allegations must be enough to raise a right to relief above the speculative level"]; see also Iqbal, 129 S.Ct. at 1949-1950 ["[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"].
Plaintiff also again argues that, even if Stokes is entitled to dismissal under these state law claims, the Defendant Charleston Count Sheriff's Office is not immune from suit in this Court under the Eleventh Amendment, and that therefore his tort claims can nonetheless proceed, even if only the CCSO is the proper party Defendant for these claims. However, as previously discussed, the Sheriff's Office is entitled to immunity from suit for damages in this court. See discussion, supra. Therefore, Plaintiff cannot pursue his SCTCA tort claims against the CCSO in this federal lawsuit, and these claims must be dismissed.
Conclusion
Based on the foregoing, it is recommended that the Defendant Charleston County Sheriff's Office be dismissed as a party Defendant in this case. The Defendant Stokes should also be dismissed as a party Defendant under Plaintiff's state law tort claims.
If the Court adopts these recommendations, as the Charleston County Sheriff's Office would be the only named party Defendant in Plaintiff's Second, Third, Fourth, Fifth, and Sixth Causes of Action, all of those causes of action should also be dismissed for the reasons stated. Even so, because these causes of action are all subject to dismissal based on the Defendants' immunities, dismissal of these Defendants and all of these claims should be without prejudice. Plaintiff may then refile these claims in state court, if he chooses to do so. See also Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998)[Noting that 28 U.S.C. § 1367(d) "ensures that the plaintiff whose supplemental jurisdiction is dismissed has at least thirty days after dismissal to refile in state court."].
Plaintiff's remaining federal claim for damages against the Defendant Stokes in his individual capacity under § 1983 (First Cause of Action) may proceed in this Court. Even so, the Court notes that, since the remainder of Plaintiff's claims must be pursued (if at all) in state court, Plaintiff may also elect to pursue that one remaining federal claim against Stokes in state court as well. See Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1336 (8th Cir. 1975) (en banc)["Congress and the federal judiciary have consistently recognized that federal courts should permit state courts to try state cases, and that, where constitutional issues arise, state court judges are fully competent to handle them subject to Supreme Court review."].
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge September 26, 2019
Charleston, South Carolina
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).