Opinion
C. A. 1:23-5683-JFA-SVH
03-19-2024
Nathan Lee Tarpein, Sr. and Nicholas Ryan Fox, Plaintiffs, v. South Carolina Department of Natural Resources, Robert Boyles in his Official Capacity, and Officer William S. McDaniel, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Nathan Lee Tarpein, Sr. (“Tarpein”) and Nicholas Ryan Fox (“Fox”) (collectively “Plaintiffs”) allege they were wrongly arrested and prosecuted after removing logs from the Savannah River. Plaintiffs originally filed suit in the Aiken County Court of Common Pleas against the South Carolina Department of Natural Resources (“SCDNR”), Robert Boyles (“Boyles”) in his official capacity, and Officer William S. McDaniel (“McDaniel”) (collectively “Defendants”). Defendants removed the case to this court on November 7, 2023.
Plaintiffs assert claims for unreasonable search and seizure in violation of the Constitution pursuant to 42 U.S.C. § i983, as well as state-law claims for false arrest, malicious prosecution, defamation, and negligence pursuant to the South Carolina Torts Claims Act (“SCTCA”), SC Code Ann. § 15-78-10, et seq. This matter comes before the court on Defendants' partial motion to dismiss. [ECF No. 4]. The motion having been fully briefed [ECF Nos. 8, 9], it is ripe for disposition. Also pending before the court is Plaintiffs' motion to stay. [ECF No. 6].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. For the following reasons, the undersigned recommends the court grant in part and deny in part Defendants' motion and stay the remainder of the case pending resolution of state court criminal proceedings against Tarpein.
I. Factual and Procedural Background
Plaintiffs alleges that on or about June 15, 2021, McDaniel, an officer of the SCDNR, arrested them for the alleged crime of Antiquities/Exclusive License violations of the South Carolina Underwater Antiquities Act, SC Code Ann. § 54-7-610, et seq. [ECF No. 1-2 ¶¶ 7-8]. Plaintiffs allege they were arrested pursuant to South Carolina law, but claim they were arrested for removing submerged timbers on the Georgia side of the Savannah River where South Carolina law does not apply. Id. ¶¶ 9-14. Plaintiffs argue that the Savannah River is a navigable waterway governed by federal admiralty law and that they did not violate federal admiralty law. Id.
Plaintiffs allege they were arrested, booked, and incarcerated and that Defendants defamed them by arresting them. Id. ¶¶ 15-16. Plaintiffs further allege that because of their arrests and or allegations against them, a company one of them owns has been wrongfully denied licenses to raise submerged timber. Id. ¶ 18. Plaintiffs additionally state Defendants seized and searched their cell phones and that their phones were retained for around a year or more. Id. ¶ 20.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
1. Defendants' Motion to Dismiss
a. Section 1983 Claim
Defendants argues that SCDNR and Boyles are not “persons” who can be sued under 42 U.S.C. § 1983. [ECF No. 4 at 1]. Plaintiffs do not address this argument in their response. [See ECF No. 8].
To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that he was injured by “the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color of state law.” See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). Only “persons” may act under color of state law; therefore, a defendant in a § 1983 action must qualify as a “person.” Because the State is not a “person,” it is not a proper defendant in a § 1983 claim.
Here, neither SCDNR nor Boyles are “persons” who can be sued under 42 U.S.C. § 1983. Groups of individuals in a building do not qualify as a “person” who can act under color of state law for purposes of § 1983. See Kane v. Beaufort Cty Sheriffs Dep't, C/A No. 9:14-508-RMG, 2015 WL 404570, at *6 n.2 (D.S.C. Jan. 29, 2015) (noting that “[a] department is not a person subject to suit under § 1983”). Additionally, official capacity suits “should be treated as suits against the State.” Hafer v. Melo, 502 U.S. 21, 25 (1991); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a state nor its officials acting in their official capacities are ‘persons' under § 1983.”).
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss claims against SCDNR and Boyles brought pursuant to 42 U.S.C. § 1983.
b. Boyles as a Redundant Defendant
Similarly, the undersigned recommends the district judge grant Defendants' motion to dismiss Boyles from this suit as a redundant defendant to SCDNR, where Defendants correctly argue, and Plaintiffs do not dispute, that suing Boyles in his official capacity is an additional method of suing SCDNR and duplicative to suing SCDNR. See Est. of Valentine by & through Grate v. South Carolina, 611 F.Supp.3d 99, 113 (D.S.C. 2019) (“The Fourth Circuit has upheld dismissal of a claim against a defendant in his official capacity as duplicative where the municipal defendant was also sued.”) (citing Love-Lane v. Martin, 355 F.3d 766, 773 (4th Cir. 2004) (‘The district court correctly held that the § 1983 claim against Martin in his official capacity as Superintendent is essentially a claim against the Board and thus should be dismissed as duplicative.”)); see also Price v. Town of Atl. Beach, C/A No. 4:12-2329-RBH, 2015 WL 58115, at *2 n.3 (D.S.C. Jan. 5, 2015)); Land v. Barlow, C/A No. 2:21-01883-RMG-MHC, 2021 WL 6495298, at *8 (D.S.C. Nov. 17, 2021) (“Courts in this District have held that, for purposes of an SCTCA claim, the sheriff's office is the only appropriate Defendant, not the sheriff in his official capacity .... The same logic applies to municipal officers in their official capacities.”), report and recommendation adopted, C/A No. 2:21-1883-RMG, 2021 WL 5997984 (D.S.C. Dec. 20, 2021).
c. SCTCA Claims
Defendants assert that SCDNR is the only named defendant that can properly be sued for state law causes of action based on the conduct of an employee of SCDNR in the course and scope of official duty. [ECF No. 4 at 2]. Therefore, Defendants seek dismissal of state law claims asserted against McDaniel. Id. ]
The court has already addressed Defendants' additional argument that SCTCA claims against Boyles should also be dismissed.
The SCTCA is “the exclusive remedy for any tort committed by an employee of a governmental entity.” S.C. Code Ann. § 15-78-70(a). “The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained” within the SCTCA. S.C. Code Ann. § 15-78-40. As relevant here, the SCTCA additionally provides a “governmental entity is not liable for the loss resulting from . . . employee 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); see also id. at § 15-78-70(b). “[U]nder the SCTCA, for a given tort, either the governmental entity or the employee is liable but not both.” Newkirk v. Enzor, 240 F.Supp.3d 426, 436 (D.S.C. 2017).
The parties agree that McDaniel was an “employee” of the SCDNR when he arrested Plaintiffs. Notwithstanding, Plaintiffs argue that whether Defendants' “acts fall into immune or not immune categories is a factual matter to be resolved at trial, not via a motion to dismiss.” [ECF No. 8 at 1].
Although Plaintiffs are correct that factual matters are not to be resolved at this stage in the case, their complaint is devoid of any allegation that McDaniel'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” such that he could be held personally responsible for his actions as to their false arrest and defamation claims. See S.C. Code Ann. § 15-78-70(b).
As for their negligence-based claims, Plaintiffs allege “Defendants were negligent, grossly negligent, reckless, and engaged in willful and wanton conduct by arresting Plaintiffs as described above.” [ECF No. 1-2 ¶ 33]. However, as this court has repeatedly held, “all of the SCTCA exceptions require a requisite element of intent,” an intent to harm, and “[c]laims for negligence . . . lack such intent,” including claims for gross negligence. Strickland v. Oconee Cnty. Sheriff's Off., C/A No. 8:19-3176-BHH-KFM, 2021 WL 4691776, at *11 (D.S.C. June 1, 2021), report and recommendation adopted, C/A No. 8:19-3176-BHH, 2021 WL 4145850 (D.S.C. Sept. 13, 2021); see also Beaufort v. Thompson, C/A No. 2:20-01197-DCN-MGB, 2021 WL 11132800, at *3 (D.S.C. Apr. 21, 2021) (“Beaufort's sole remedy for his negligence/gross negligence claims is under the SCTCA, and he may not assert the same in federal court against any state employee in his or her individual capacity.”); Mosley v. Mueller, C/A No. 1:19-2383-SAL-SVH, 2020 WL 5986220, at *6 (D.S.C. Mar. 24, 2020) (finding state law gross negligence claim failed to overcome SCTCA immunity because it necessarily lacked the element of intent), report and recommendation adopted, C/A No. 1:19-02383-SAL, 2020 WL 3638111 (D.S.C. July 6, 2020); Smith v. Ozmint, 394 F.Supp. 2d 787, 792 (D.S.C. 2005) (“In this case, Plaintiff's negligence and common law libel claims fail to allege intent to harm or actual malice. As such, for these claims, the sole remedy is under the Act and Plaintiff may not assert these claims in federal court against any state employee in his individual capacity.”); see also Coats v. Pope, C/A No. 1:17-02930-TLW, 2019 WL 5586871, at *9 (D.S.C. Oct. 30, 2019) (“As to the negligence and gross negligence claims, the Court agrees with the findings of the Magistrate Judge that summary judgment is appropriate because the claims lack the required elements under S.C. Code Ann. § 15-78-70(b).”).
Turning to their malicious prosecution claim, Plaintiffs allege “[t]he criminal proceedings against Fox were initialed and continued by and at the insistence of Defendants, without probable cause, and were malicious and caused injuries ” [ECF No. 1-2 ¶ 30]. Even taking these allegations in light most favorable to them, Plaintiffs have failed to allege McDaniel's prosecuted them with “actual fraud, actual malice, [or with] intent to harm” or acted outside the scope of his duties. Recital of the elements of a malicious prosecution claim, or simply stating the relevant prosecution was malicious, is insufficient. See, e.g., Newkirk, 240 F.Supp.3d at 437 (noting malicious prosecution claim “could be committed without actual malice or intent to harm); McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 855 (S.C. Ct. App. 2010) (“one need not show actual malice in order to successfully maintain an action for malicious prosecution. Therefore, the circuit court erred in concluding that a cause of action for malicious prosecution is barred by section 15-78-60(17) because of its elements.”).
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss Plaintiffs' state-law claims as to McDaniel, but allowing these claims to proceed as to SCDNR.
d. Cell Phone
Defendants seek dismissal of Plaintiffs' claims for the search and seizure of their phones. [ECF No. 4 at 3]. Defendants argue deprivation of personal property does not support an action for damages pursuant to 42 U.S.C. § 1983 and no violation of due process is presented where law enforcement retains physical evidence seized at arrest during criminal proceedings. Id. Plaintiffs counter that they have not alleged a cause of action regarding their cell phones and, instead, “have alleged damages for the search, seizure, and extended deprivation of their cell phones in connection with the unlawful search, seizure, and arrests of Plaintiffs.” [ECF No. 8 at 2, see also id. at 3 (“these [phone] deprivations were a foreseeable result of the wrongful arrests, and are properly a component of damages”)].
Where Plaintiffs have not asserted a specific claim based on the seizure, search, and retention of their cell phones and where there has been no discovery or development of the record at this time, it appears premature in this context to rule on an issue potentially associated with the calculation of damages. See Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (“‘[t]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint' and not to ‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'”) (citation omitted)); Weirton Area Water Bd. v. 3M Co., C/A No. 5:20-102, 2020 WL 7776542, at *8 (N.D. W.Va. Dec. 30, 2020) (“It is premature to rule upon the issue of damages in the context of a motion to dismiss stage as there has been no discovery or development of a record in this case.”).
Cases cited by Defendants do not warrant a different conclusion where those cases do not address damages at the motion to dismiss stage. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (“We conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”) (emphasis in original)); Yates v. Jamison, 782 F.2d 1182, 1184 (4th Cir. 1986) (“Thus, Parratt and Palmer established the rule that a government official's random and unauthorized act, whether intentional or negligent, which causes the loss of private property is not a violation of procedural due process when the state provides a meaningful postdeprivation remedy.”); Baker v. Stevenson, C/A No. 8:13-466-JFA-JDA, 2013 WL 4866337, at *1 (D.S.C. Sept. 11, 2013) (dismissing inmate's complaint brought pursuant to 42 U.S.C. § 1983 alleging SCDC confiscated his typewriter and noting “under South Carolina law, the plaintiff's claims may be cognizable under the South Carolina Tort Claims Act”); see also Kelly v. Conner, 769 Fed.Appx. 83, 90 (4th Cir. 2019) (“defendants did not violate Kelly's Second Amendment or due process rights by retaining the firearms during the course of his criminal proceedings because a valid Fourth Amendment seizure allows the retention of a defendant's weapons until the criminal charge related to the seizure is dismissed”).
Accordingly, the undersigned recommends the district judge deny Defendants' motion to dismiss as to this issue.
2. Plaintiffs' Motion to Stay
Plaintiffs argue that because criminal proceedings against Fox have concluded, but proceedings as to Tarpein have not, “[i]t would save the time of the Court, counsel, and the parties to stay proceedings until the criminal proceedings for both Plaintiffs are concluded.” [ECF No. 6 at 1]. Defendants agree, arguing as follows:
Defendants assert that no court should, in a civil action, interfere with the progress of a pending state court criminal proceeding. Younger v. Harris, 401 U.S. 37 (1971). Where, however, certain of Plaintiffs' claims are “plainly barred” by law, Defendants assert it is appropriate that the barred claims be dismissed with prejudice, and the action reduced to claims that could, conceivably, be eventually pursued, before the remainder of the case is stayed pending the completion of the pending prosecution. Nivens v. Gilchrist, 444 F.3d 237, 248-250 (4th Cir. 2006). As in Nivens, certain of Plaintiffs' claims are “plainly barred,” as addressed in Defendants' Motion to Dismiss (ECF 4). Defendants request that the Court dismiss those barred claims before entertaining the Motion to Stay the remainder of the action pending completion of Plaintiff Tarpein's criminal prosecution.[ECF No. 10 at 1].
The court has addressed Defendants' arguments as found in their motion to dismiss above. See, e.g., Young v. Dow, C/A No. 3:08-1702-RBH, 2009 WL 606241, at *1 (D.S.C. Mar. 6, 2009) (granting in part and denying in part defendants' motion to dismiss and/or motion for summary judgment and staying the case as to plaintiff's remaining 42 U.S.C. § 1983 claims for false arrest and coerced interrogation).
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a state prisoner cannot bring a 42 U.S.C. § 1983 suit for damages where a judgment in favor of the prisoner would necessarily imply the invalidity of his conviction or sentence. Id. at 486-87. In Wallace v. Kato, 549 U.S. 384 (2007), the Supreme Court clarified that Heck does not apply in the preconviction setting. Id. at 393. The Court continued to state that a stay of the 42 U.S.C. § 1983 action is appropriate in such instances:
If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended .... If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit.Id. at 393-94; see also Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996) (holding Younger provides a federal court should not interfere with ongoing state criminal proceedings “except in the most narrow and extraordinary of circumstances”).
Plaintiffs are asking the federal court to make determinations identical to the determinations that must also be made in the state court, including whether their arrests were valid. Based on the guidance of the Wallace court, the undersigned recommends this case be stayed pending resolution of both Plaintiffs' criminal charges.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendants' motion to dismiss [ECF No. 4], (1) allowing Plaintiffs' claims pursuant to 42 U.S.C. § 1983 to proceed as to McDaniel, (2) allowing Plaintiffs' state-law claims to proceed as to SCDNR, and (3) dismissing Boyles from this case. The undersigned further recommends this case be stayed pending resolution of state court criminal proceedings against Tarpein and that the court order Plaintiffs to apprise the court of the status of the criminal proceedings every six months and to notify the court when the criminal charges are resolved such that the stay can be lifted. [ECF No. 6].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).