Opinion
C/A 2:21-cv-03713-DCN-MHC
09-06-2023
Rodney Smalls, Plaintiff, v. Charleston County Sheriff's Office; James Carter, III, in his individual capacity pursuant to 42 U.S.C. § 1983; and Allan R Williams, in his individual capacity pursuant to 42 U.S.C. § 1983, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Rodney Smalls (“Plaintiff”), represented by counsel, filed this civil action asserting violations of his constitutional rights pursuant to 42 U.S.C. § 1983, as well as state law claims. Before the Court are Defendant James Carter's Motion for Qualified Immunity, ECF No. 48, and Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, ECF No. 49. Plaintiff filed Responses in Opposition to each Motion, ECF Nos. 50 and 53. Defendant Carter and Defendants filed Replies, ECF Nos. 52 and 54. The Motions are ripe for review.
The undersigned construes Defendant Carter's Motion for Qualified Immunity to be a Motion for Summary Judgment, pursuant to Rule 56, on the basis of qualified immunity. Defendant Carter filed this Motion before the deadline to file dispositive motions, and the Motion sets forth the two-step inquiry used by courts to determine “whether an officer is entitled to summary judgment on the basis of qualified immunity.” ECF No. 48-1 at 7.
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 Civil Rule 73.02(B)(2) (D.S.C.). Because the Motions are dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends summary judgment as to the federal claims and dismissal, without prejudice, of the state law claims.
BACKGROUND
A. Incident on November 14, 2019
On the evening of November 14, 2019, Defendant Carter was patrolling in his vehicle with his K-9. ECF No. 48-3, Incident Report. As he approached I-526 from I-26, he observed a burgundy 2019 GMC Terrain driving at a very high rate of speed on I-526. Id. Plaintiff Smalls was the driver of the vehicle.
When Defendant Carter got onto I-526 westbound, Plaintiff slowed the vehicle and crossed the white fog line. Id. Defendant Carter got behind the vehicle Plaintiff was driving to monitor and determine whether Plaintiff may be impaired. When Defendant Carter did this, Plaintiff changed lanes without using a proper turn signal. Id. Defendant Carter activated his blue lights. Instead of pulling over, Plaintiff sped up and led Defendant Carter on a pursuit. ECF No. 48-6, Smalls Dep., 25:21-25, 27:17-25. Plaintiff indicated he was trying to evade deputies because he had been using drugs that night, there were drugs in the vehicle, and he did not want to go back to jail. Id. at 44:618.
As the pursuit continued off the interstate, the front passenger jumped out of the moving vehicle and fled on foot. ECF No. 48-4, Dash Cam Video. Defendant Carter remained behind the vehicle as it continued up and down streets in the Wagener Terrace subdivision of peninsular Charleston until Plaintiff turned into a driveway and jumped from the vehicle to flee on foot. ECF Nos. 48-3, 48-4. Plaintiff ran through yards and jumped over at least one fence that was five or six feet tall. ECF No. 48-6, Smalls Dep., 32:1-23; ECF No. 48-5, Body Worn Camera Video (“BWC”). Defendant Carter ultimately located Plaintiff on the porch of a house, in the corner in an alcove near the door of the residence. ECF No. 48-5.
Plaintiff and Defendants have provided and rely on BWC footage to support their positions, though Plaintiff only provided a short segment of footage. For sake of ease, the undersigned refers to the BWC footage on a CD from Defendants, located at ECF No. 48-5. The salient segments of the BWC footage occur at time stamps 48:20 through 51:40. The undersigned notes, however, that there are portions of the footage that are difficult, if not impossible, to see. Ultimately, the facts in the case are gleaned from parts of the BWC footage; deposition testimony from Plaintiff, Defendants Carter and Williams and Leonard Thompson; medical records; and incident reports and are viewed in the light most favorable to Plaintiff, when there is a genuine dispute as to those facts. See Witt v. West Virginia State Police, Troop 2, 633 F.3d 272 (4th Cir. 2011).
The BWC shows Defendant Carter come onto the porch, with his flashlight in hand. ECF No. 48-5. According to Smalls, when he saw Defendant Carter walking toward him, he lost consciousness and does not remember anything until he was being taken out of the hospital on his way to jail. ECF No. 48-6, Smalls Dep., 30:22-25, 32:7-12, 39:23-25.
Because it was pre-dawn and the lighting poor, it is difficult to see on the BWC how Plaintiff was positioned on the porch. Plaintiff testified that his back was against the wall, but he does not remember if he was sitting or crouched. ECF No. 48-6, Smalls Dep., 44:24-45:6. Plaintiff does not recall anything else that occurred on the porch. Id. Defendant Carter testified that Plaintiff was crouched in a stance, such that Defendant Carter had concerns Plaintiff might try to flee. ECF No. 48-7, Carter Dep., 9:15-10:10.
It is also difficult to see what happens immediately after Defendant Carter ran onto the porch. Plaintiff did not surrender at that point, nor did he put his hands out to his side. ECF No. 48-6, Smalls Dep., 45:8-17. According to Defendant Carter, he lowered his shoulder and physically forced Plaintiff into the wall, pinning Plaintiff against the side of the house. ECF No. 48-7, Carter Dep., 8:16-10:7. Defendant Carter gave commands for Plaintiff to show or give Defendant Carter his hands, but Plaintiff did not. Id.; ECF No. 48-5.
According to Defendant Carter, Plaintiff then “went limp,” and Defendant Carter released him. ECF No. 50-2, Carter Dep., 34:14-35:3. Defendant Carter radioed to dispatch that he had Plaintiff. Id. The BWC briefly shows Plaintiff on the ground, leaning slightly against an object against the wall, and the audio portion of the BWC confirms Defendant Carter's radio to dispatch. ECF No. 48-5. Plaintiff has no memory of these events and offers no testimony regarding them. ECF No. 48-6, Smalls Dep., 40:2-21.
The incident report from November 14, 2019, indicates that Defendant Carter rolled Plaintiff over onto his stomach so that Defendant Carter could handcuff him. ECF No. 48-3 at 6. However, as Defendant Carter attempted to handcuff Plaintiff, Plaintiff began to resist and struggle. Id. Defendant Carter gave additional commands for Plaintiff's hands and was finally able to get him handcuffed. Id. The sound of handcuffs opening or closing can be heard, as well as commands to Plaintiff to give Defendant Carter his hands and to stop fighting, on the audio portion of the BWC. ECF No. 48-5.
For the remainder of the relevant time, Defendant Carter instructed Plaintiff several times to stand up, but Plaintiff was unable to do so. ECF No. 48-5. Defendant Carter radioed for assistance to get Plaintiff off the porch. Id. Plaintiff was taken to the hospital where the treating physician noted that Plaintiff did not “provide any meaningful history regarding why he is in the hospital.” ECF No. 50-1 at 2. Plaintiff was diagnosed with bilateral zygomatic arch fractures in his face. ECF No. 50-1 at 6. The physician noted the injuries did not require acute inpatient general surgery admission; however, he indicated Plaintiff should have the fractures reduced surgically later, though at the time Plaintiff was “not consentable due to intoxication.” ECF No. 50-1 at 10.
Plaintiff and Defendants make numerous statements about Defendant Williams, with little to no citations to supporting deposition transcripts or other evidence, making it difficult for the Court to confirm there is evidence to support each of the statements being made. See ECF Nos. 49 at 1314; 54 at 2, ¶¶ 6-9, 4. Of note, Plaintiff attaches one page of Defendant Williams's deposition transcript to his Response in Opposition to the Motion for Summary Judgment, which does not reference an event in 2017 or otherwise provide any evidence or context to an event in 2017, notwithstanding Plaintiff's arguments and references to an event in 2017. ECF No. 53 at 4, 10.
Defendant Williams was Captain of Internal Affairs in 2018 and during the relevant period of 2019. ECF No. 53-9, Williams Dep., 10:6-9; ECF No. 49-9, Williams Dep., 22:19-23:6. Defendant Carter was not in Defendant Williams' chain of command. ECF No. 49-9, Williams Dep., 42:20-43:5. Defendant Williams was not Defendant Carter's supervisor. Id.
While Defendant Williams reviewed Internal Affairs investigations to determine completeness, he did not discipline employees, nor recommend discipline. ECF No. 49-9, Williams Dep., 28:24-30:7. Instead, the matter progressed up the chain of command for determination about discipline. Id.
In August 2018, Defendant Carter was disciplined by Internal Affairs when he brandished his weapon at a bar while at a civilian birthday party. ECF No. 53-6, 2018 Internal Affairs Report. The Internal Affairs report is not signed, nor copied to, Defendant Williams. See id.
In September 2020, Internal Affairs investigated an alleged racially hostile work environment experienced by Leonard Edward (“Bo”) Thompson in the K-9 Unit of the Charleston County Sheriff's Office. ECF No. 53-8, 2020 Internal Affairs Report. Officer Thompson was a fellow K-9 Unit officer with Defendant Carter in November 2019. Officer Thompson testified that Defendant Carter used the “n-word” in his presence one time to refer to Officer Thompson, presumably to bond with Officer Thompson. ECF No. 53-7, Thompson Dep., 14:14-18, 18:3-12. Defendant Carter was interviewed by Internal Affairs regarding the allegations in September 2020 and told investigators that he “never made any inflammatory statements [nor took] part in any racist behavior within the Canine Unit.” ECF No. 53-8 at 3. The Internal Affairs report is not signed, nor copied to Defendant Williams. See id.
LEGAL STANDARD
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
DISCUSSION
Defendants move for summary judgment on all causes of action remaining in this case: (1) improper seizure, excessive force and due process violations against Defendant Carter, pursuant to 42 U.S.C. § 1983; (2) deliberate indifference and supervisory liability against Defendant Williams, pursuant to 42 U.S.C. § 1983; and (3) negligence and gross negligence/grossly negligent retention/supervision against Defendant Charleston County Sheriff's Office. ECF No. 49; see ECF No. 1. Defendant Carter also moves for summary judgment based on the doctrine of qualified immunity. ECF No. 48.
The Court previously dismissed Plaintiff's claims against Defendant Williams in his official capacity, as well as any claims pursuant to the South Carolina Constitution. ECF No. 10 at 2.
A. FIRST CAUSE OF ACTION: EXCESSIVE FORCE
Although Plaintiff captioned his first and only cause of action against Defendant Carter as one for “improper seizure, excessive force & due process violation,” he concedes that he is not disputing probable cause existed for his arrest. ECF No. 53 at 7. Instead, Plaintiff's claim for a violation of his Fourth Amendment rights is based upon the alleged excessive use of force by Defendant Carter in effectuating his arrest, as set forth in the body of his Complaint. See ECF No. 1 at ¶¶ 34-38.
Plaintiff's first cause of action is for excessive use of force, in violation of the Fourth Amendment. The Fourth Amendment's prohibition on unreasonable seizures includes the right to be free of “seizures effectuated by excessive force.” Schultz v. Braga, 455 F.3d 470, 476 (4th Cir. 2006). In this case, the parties disagree as to what force was actually used in effectuating Plaintiff's arrest, such that the Court must first address that issue.
First, Plaintiff alleges in his Complaint that Defendant Carter “hit [Plaintiff] in the face with what Plaintiff is informed and does believe was the butt of his duty-issued flashlight repeatedly and with severe force.” ECF No. 1 at ¶ 18. Defendant Carter testified that he did not hit Plaintiff in the face but, instead, tackled Plaintiff on the porch, to keep him from running. ECF No. 48-7, Carter Dep. 8:2-13.
Although Plaintiff alleges in his Complaint that Defendant Carter beat Plaintiff with his duty-issued flashlight, there is no testimony to support the allegation. When asked if Defendant Carter struck him or even put a hand on him, Plaintiff testified “I don't remember. I don't remember none of that.” ECF No. 48-6, Smalls Dep., 40:22-41:16. Plaintiff explained that he had no knowledge or memory of anything that happened after Defendant Carter made eye contact with him on the porch until he was leaving the hospital. ECF No. 48-6, Smalls Dep., 43:4-9. In summary, Plaintiff does not know and, thus, cannot testify about what happened at all during his arrest by Defendant Carter.
Plaintiff contends there is other evidence to support his position that Defendant Carter used excessive force when arresting him in the form of what “appeared to be by punches, kicks, use of an object that Defendant Carter was holding or all of the above.” ECF No. 50 at 4. Specifically, Plaintiff references “the body camera video, the medical records of [Plaintiff], as well as inconsistencies between the body camera video and Defendant Carter's deposition.” ECF No. 50 at 6. However, Plaintiff does not point to any BWC footage that independently supports his argument, nor evidence that otherwise creates a genuine issue of material fact as to the force that was used in effectuating his arrest.
Instead, Plaintiff uses his interpretation of the BWC footage (not his own memory, testimony or other evidence) to disagree with Defendant Carter's description that Defendant Carter tackled Plaintiff: “[T]he video also shows that during the encounter, a reflection can be seen in the grill of what appears to be a white male with a flashlight standing up in a position over where [Plaintiff] would have been, further refuting Carter's story that he was on the ground tackling Smalls.” ECF No. 50 at 3. Notably, Defendant Carter testified he had his flashlight in his hand when he came on the porch, consistent with Plaintiff's interpretation of the reflection. ECF No. 48-7, Carter Dep., 8:2-8. Moreover, Defendant Carter did not testify he was on the ground when he tackled Smalls but, instead, indicated he was on his feet when he spotted Plaintiff crouched on the porch, and he dropped his shoulder and forced Plaintiff into the wall to keep Plaintiff from getting up. Id. at 7:12-8:23. Under these circumstances, merely disagreeing with Defendant Carter's description of the arrest, based upon a reflection on a grill, is not sufficient to create a question of fact for purposes of summary judgment. To reach the conclusion advanced by Plaintiff based on the proper evidence submitted in this case would require inference upon inference that, in short, amounts to speculation. See Phillips v. BI-LO, LLC, No. 3:18-CV-03229-CMC, 2019 WL 5617902, at *1 (D.S.C. Oct. 31, 2019) (“While all justifiable inferences must be drawn in favor of the non-movant, a non-moving party cannot create a genuine issue of material fact through mere speculation or the building of inference upon inference.”) (internal citations omitted); see also Nowlin v. Dodson Bros. Exterminating Co., No. 4:18-CV-0480-SAL, 2020 WL 2306610, at *4 (D.S.C. May 8, 2020) (“A party cannot survive summary judgment with mere speculation or by mounting inference upon inference.”) (citing Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).
The Court was not able to see any such reflection in the BWC footage submitted by Plaintiff or Defendants but, for the sake of Plaintiff's argument, assumes there is one.
Moreover, Plaintiff does not point to any medical record that shows Defendant Carter punched, kicked, or used an object to hit Plaintiff. Rather, he appears to argue that, because he was diagnosed at the hospital with bilateral zygomatic arch factures in his face, he must have been hit, kicked, or beaten by Defendant Carter. ECF No. 50 at 4. However, reiterating language from a medical record does not explain, in layman's terms, what the injury is nor, more importantly, how the injury occurred. Plaintiff asks the court to infer from the fact that Plaintiff had a bilateral injury to his face, that it came from being beaten by Defendant Carter. This Court cannot agree that an injury to Plaintiff's face means Defendant Carter beat him, particularly in the absence of any testimony by Plaintiff to even suggest otherwise. Again, this is simply not an inference the Court can make here. See Nowlin, 2020 WL 2306610, at *4; Phillips, 2019 WL 5617902, at *1. While summary judgment requires this Court to make all reasonable inferences from the facts in favor of Plaintiff, this Court is not required to make unreasonable inferences or inferences the facts do not support. See McCree v. City of Chester, No. CV 0:20-867-JFA-PJG, 2023 WL 1814175, at *10, *13 (D.S.C. Feb. 8, 2023).
Defendant Carter argues that the “plaintiff has not come forward with an expert to testify that the injuries suffered by Mr. Smalls are even consistent with what Smalls' attorneys allege happened to him, [sic] and were not caused by Smalls falling over one of the multiple fences and brick walls he climbed over.” ECF No. 54 at 4. Defendant has not cited to any legal authority, though the Court notes that the conclusion Plaintiff seeks to have drawn from his bilateral facial fracture would generally require specialized knowledge. See Fed.R.Evid. 702.
Without any testimony from Plaintiff regarding the manner of his arrest, the Court is constrained to rely upon other evidence in this case, including the BWC footage and testimony of Defendant Carter, as to the manner of Plaintiff's arrest. The evidence in this case, interpreted in the light most favorable to Plaintiff, establishes that Defendant Carter ran onto the porch and, using his shoulder, physically pushed Plaintiff into the wall, pinning him against the side of the house. ECF No. 48-7, Carter Dep., 8:16-10:7. Plaintiff contends that even this force was excessive.
1. Plaintiff's Claim
Determining whether an officer used excessive force is an objective inquiry, and courts focus on “whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). Three factors, established in Graham, generally inform this analysis: (1) “the severity of the crime”; (2) “whether the suspect posed 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.” Id. at 396. “At the summary judgment stage, once [the court has] viewed the evidence in the light most favorable to the nonmovant, the question of whether the officer's actions were reasonable is a question of pure law.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011); see also Knibbs v. Momphard, 30 F.4th 200, 214 (4th Cir. 2022), cert. denied, No. 22-8, 2022 WL 6572139 (U.S. Oct. 11, 2022).
Turning to the Graham factors, the first Graham factor favors Defendant Carter. Plaintiff admits he had used drugs, “probably marijuana . . . and maybe some ecstasy,” that night and that he had cocaine base in the vehicle. ECF No. 49-6, Small Dep., 27:17-23. Plaintiff was convicted of several drug offenses, including manufacturing/distribution of crack - 2nd offense, and was sentenced to seven years in prison. ECF No. 48-8 at 2. While Defendant Carter may not have known at the time about the actual crimes for which Plaintiff was convicted, Plaintiff led officers on a high-speed chase, threw drugs out of the window of the moving vehicle, and then fled from officers on foot, trespassing on private property. ECF No. 48-6, Smalls Dep., 25:21-25, 27:1-12, 32:1-25. Plaintiff's high rate of speed, refusal to stop for Defendant Carter's blue lights, and flight on foot weigh in Defendant's favor regarding the first Graham factor.
As to the second and third Graham factors, Plaintiff argues that he was not resisting arrest and did not pose an immediate threat to the safety of the officers or others because he was “hiding in a corner confined in a roughly three by six foot area by the surrounding walls, a grill and Carter.” ECF No. 50 at 5.
According to Defendant Carter, he was concerned Plaintiff would continue fleeing. ECF No. 48-7, Carter Dep., 8:18-23. Plaintiff could not remember how he was positioned on the porch, specifically whether he was in a runner's stance, but he testified that he did not surrender to Defendant Carter, nor did he put his hands out to his side when Defendant Carter came onto the porch where Plaintiff was hiding. ECF No. 48-6, Smalls Dep., 45:8-17. Defendant Carter's concern of continued flight by Plaintiff was not unreasonable, given that Plaintiff had just led officers on a high-speed vehicle chase, jumped form a vehicle to continue fleeing on foot, and was in a position to run off the porch. See Graham, 490 U.S. at 396 (an officer's conduct must be “judges from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”). The Court finds Defendant Carter's actions in pushing Plaintiff against the wall to prevent him from fleeing and to handcuff him were not unreasonable, and the use of force was not excessive, based on the totality of the circumstances. See Michigan v. Summers, 452 U.S. 692, 702-03 (1981) (“The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”). Thus, the undersigned recommends granting Defendants' Motion for Summary Judgment as to the First Cause of Action.
2. Qualified Immunity
Defendant Carter contends that he is entitled to qualified immunity on Plaintiff's Fourth Amendment claim. The doctrine of qualified immunity offers some protection to a government employee being sued in his individual capacity. The Supreme Court has held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
Because the Court finds Defendant Carter did not violate Plaintiff's constitutional rights, he is entitled to qualified immunity. Accordingly, the undersigned recommends granting Defendant Carter's Motion for Qualified Immunity.
B. SECOND CAUSE OF ACTION: SUPERVISORY LIABILITY
The Fourth Circuit has stated a plaintiff must show the following three elements to establish supervisor liability under section 1983:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices[;] and (3) that there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations and internal quotation marks omitted); see King v. Rubenstein, 825 F.3d 206, 224 (4th Cir. 2016). As set forth in detail above, Plaintiff has not established any constitutional injury, such that he cannot establish a claim for supervisory liability against Defendant Williams.
Moreover, there is no evidence before the Court that Defendant Williams had actual or constructive knowledge that any of his subordinates, including specifically Defendant Carter, was “engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury” to Plaintiff, nor that Defendant Williams was deliberately indifferent to or tacitly authorized the “alleged offensive practices.” See Shaw, 13 F.3d at 799. Although Plaintiff argues that Defendant Williams was copied on Defendant Carter's violations of pursuit policy in 2017, ECF No. 53 at 10, there is no evidence before the Court in that regard. Plaintiff also contends that Defendant Williams was aware of Defendant Carter's brandishing a firearm at a birthday party and allowed a culture of racially insensitive conduct in the K-9 unit. ECF No. 53 at 10. However, the constitutional behavior at issue here is the alleged use of excessive force. The incidents cited by Plaintiff, including the 2017 incident, are not the conduct or practice at issue in this lawsuit.
Under these circumstances, Plaintiff has not provided any evidence to support a § 1983 claim against Defendant Williams for supervisory liability. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution.”); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (explaining that in a civil rights action, “liability is personal, based upon each defendant's own constitutional violations”). Therefore, as to the § 1983 claim against Defendant Williams, Defendants' Motion for Summary Judgment should be granted.
C. THIRD CAUSE OF ACTION: STATE LAW CLAIMS
Plaintiff brings state law claims for negligence and gross negligence/grossly negligent retention/supervision against Defendant Charleston County Sheriff's Office. If the district judge accepts this Report and Recommendation, the original federal jurisdiction claims will be dismissed and the only remaining claims will be Plaintiff's state law claims. Title 28 U.S.C. § 1367 provides, in pertinent part, that “district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966). In analyzing whether to exercise supplemental jurisdiction, courts are to consider the following factors: judicial economy, convenience, fairness, and comity. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7 (1988). The undersigned concludes that the balance of these factors weighs in favor of dismissal without prejudice. See id. (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims.”); see also Clavon v. S.C. Dep't of Corr., No. CV 3:19-3202-JMC-KDW, 2020 WL 8713672, at *3 (D.S.C. Aug. 18, 2020), report and recommendation adopted, No. 3:19-CV-03202-JMC, 2021 WL 717229 (D.S.C. Feb. 24, 2021).
Consideration of Plaintiff's state law claims appropriately ought to be undertaken in state court. The recommended dismissal without prejudice on this ground will serve fairness and judicial economy by giving Plaintiff at least 30 days from any such dismissal to file his state law claims in state court. See 28 U.S.C. § 1367(d) (tolling applicable limitations period for claim that is dismissed under § 1367 while the claim is pending and for 30 days thereafter unless state law provides for longer); see Artis v. D.C., 138 S.Ct. 594, 598 (2018) (“We hold that § 1367(d)'s instruction to ‘toll' a state limitations period means to hold it in abeyance, i.e., to stop the clock.”).
Having recommended that Plaintiff's claims over which the Court has original jurisdiction be dismissed, the undersigned further recommends that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims in this case and dismiss the state law claims without prejudice.
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion for Summary Judgment (ECF No. 49) be GRANTED as to all federal claims and that Defendant Carter's Motion for Qualified Immunity (ECF No. 48) be GRANTED, such that only the state law claims against Defendant Charleston County Sheriff's Office remain.
The undersigned further RECOMMENDS that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims and DISMISS those claims without prejudice.
IT IS SO RECOMMENDED.