Webb v. Lott

Full title: Sheila Webb, Plaintiff, v. Lean Lott, in his capacity as Sheriff of the…

Court: United States District Court, D. South Carolina

Date published: Dec 16, 2020

C. A. 3:19-2031-JMC-SVH (D.S.C. Dec. 16, 2020)

Opinion

C. A. 3:19-2031-JMC-SVH

12-16-2020

Sheila Webb, Plaintiff, v. Lean Lott, in his capacity as Sheriff of the Richland County Sheriff's Department, and Cameron Duecker, Defendants.

Shiva V. Hodges, United States Magistrate Judge

REPORT AND RECOMMENDATION

Shiva V. Hodges, United States Magistrate Judge

Sheila Webb (“Plaintiff”) originally filed this matter in the Court of Common Pleas for Richland County, South Carolina, asserting claims against Leon Lott (“Lott”), in his capacity as Sheriff of the Richland County Sheriff's Department (“RCSD”), and Cameron Duecker (“Duecker”), pursuant to the South Carolina Tort Claims Act, SC Code Ann. § 15-78-70 (“SCTCA”) and 42 U.S.C. § 1983. Plaintiff's complaint concerns Duecker's arrest of her on February 1, 2019, and her subsequent confinement. More specifically, Plaintiff asserts Fourth and Fourteenth Amendment claims for unreasonable seizure and excessive force and state-law claims sounding in negligence and for false imprisonment, intentional infliction of emotional distress, defamation, assault, battery, and malicious prosecution. On July 19, 2019, Lott removed the action to this court.

This matter is before the court on the motions for summary judgment filed by Duecker [ECF No. 34] and Lott [ECF No. 35]. The motions having been fully briefed, including a sur-reply filed by Plaintiff, [ECF Nos. 37, 38, 41, 44, 47], they are ripe for disposition.

All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). Because the summary judgment motions are dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends denying Duecker's motion and granting in part and denying in part Lott's motion.

I. Factual Background

The parties agree that on the afternoon of February 1, 2019, Duecker was dispatched to 50 Periwinkle Court in Irmo, South Carolina, to respond to a complaint made to 911 by Plaintiff, a 58-year-old female, that her brother, William Gossette (“Gossette”), had unlawfully used their incapacitated mother's vehicle. [ECF No. 34-1 at 25:20-26:12, ECF No. 38-3 at 11:17-24, 37:9-2]. At the time, Plaintiff, Gossette, and Gossette's wife, Rachel Jones (“Jones”) all lived at the residence, and the mother was in the hospital. [ECF No. 38-3 at 10:10-14]. Duecker responded to the complaint in the patrol vehicle that had been issued to him by the RCSD, while wearing his Richland County Sheriff's uniform and the full kit of gear that had been issued to him for patrol purposes. [ECF No. 34-1 at 27:4-7, 27:18-23]. That kit of gear included a sidearm, taser, pepper-OC spray, baton, and two sets of handcuffs. Id. at 28:25.

Based on the body camera evidence, Duecker, through the front door of the residence, spoke first with Jones, informing her that he had been dispatched about “a stolen car” or “something about a car being used without mom's permission, ” to which Jones called inside the house stating “Billy, Sheila done called the police and said you stole the car.” [ECF No. 34-2 at 19:28:00-19:28:40].¹ Both Plaintiff and Gossette approached the front door, while Duecker remained outside on the porch, and Plaintiff repeatedly denied having called 911. See id. ² Plaintiff then stated to Duecker that “my mother is in ICU, [Gossette] don't have authority . . ., ” and Plaintiff and Gossette entered into a short verbal dispute, with Duecker interjecting. Id. at 19:28:40-19:29:25. Duecker then yelled “here's the deal, ” and Plaintiff became upset, telling Duecker to back up, that she is a soldier, identifying herself as “Colonel Sheila Webb, ” and stating the car “was not registered, . . . there's no insurance on the car.” Id. at 19:29:25-19:29:50.³ Duecker responded by taking out his handcuffs and informing Plaintiff that the car was legally parked and if there was an issue with permission to use the car, that was between Gossette and the owner of the car. See id. Duecker then told Plaintiff that if she called 911 again, Duecker would take her to jail for unlawful use of 911. Id. at 19:29:50-54.

1 Evidence submitted to the court indicates Plaintiff was inebriated at the time in “the opinion of all those involved or were around ....” [See ECF No. 34-3 at 70:17-19]. Plaintiff states she drank a couple glasses of wine that day. [See ECF No. 38-3 at 14:22-24].

2 Plaintiff has since admitted that she did call 911. [See, e.g., ECF No. 38-3 at 11:17-24].

3 Plaintiff confirmed in her deposition that at the time of the incident in question she was retired from the military, although she was not a colonel. [See ECF No. 38-3 at 31:13-24].

Plaintiff then became increasingly antagonistic, retreating into the residence, but then returning to the front door, informing Duecker that he would not be arresting her, that she was going to call Sheriff Leon Lott, culminating in telling Duecker that he was not “going to do shit.” Id. at 19:29:54-19:30:58. During this time, Gossette also informed Duecker that Plaintiff had summoned law enforcement to the residence on several occasions and that this had been ongoing for some time. See id. Duecker inquired about the possible initiation of eviction protocols. Id. Plaintiff reappeared, continued to be upset, and then once again retreated into the house. Id.

Duecker then entered the residence stating, “you're going to jail for filing a false police report.” Id. at 19:30:58-19:31:05.⁴ Duecker followed Plaintiff into her bedroom, while Plaintiff denied she filed a false police report and slowly tried to move away from Duecker. Id. at 19:31:05-19:31:13. Duecker repeatedly told Plaintiff to come here, not to fight him, and to stop resisting, as he caught Plaintiff's arm and forced it behind her, attempting to put Plaintiff in handcuffs; however, Plaintiff twisted away and climbed into her bed, putting the covers over her. Id. at 19:31:13-19:31:35. Plaintiff and Duecker then wrestled on her bed, with Duecker standing, as Plaintiff attempted to keep Duecker from rolling her over or putting handcuffs on her. Id. at 19:31:3519:33:05.⁵ During this time, Plaintiff asked Duecker to leave her alone, stating she was sick, while Duecker repeatedly informed Plaintiff to stop resisting and not scratch him, finally informing Plaintiff that she was under arrest for filing a false police report and assaulting a police officer. See id. Also during this time, Duecker used his radio to summon other officers for assistance and was able to place one handcuff, but not two, on Plaintiff. See id.

4 Duecker states that he entered the residence to place Plaintiff into investigative detention for the unlawful use of 911 in order to calm her down. [ECF No. 38-1 at 42:19-25, 54:13-18].

5 Duecker stated he “tried to use muscling techniques to gain compliance, which failed. I looked for an opportunity to use soft and hard empty-hand control, which didn't seem available and there was not room for a takedown technique.” [ECF No. 38-1 at 53:14-19].

Duecker then pulled out his taser, and, over the next three minutes, deployed his taser multiple times, in both “drive stun” and “probe” mode, ⁶ the latter mode to Plaintiff's chest, while telling Plaintiff to stop resisting and while Plaintiff yelled for her brother. Id. at 19:33:05-19:36:10. Duecker then placed Plaintiff in handcuffs with the assistance one of the other Richland County Deputies who had arrived on the scene following Duecker's use of his taser, including Corporal Fairbanks (“Fairbanks”), Duecker's supervisor, who states upon arrival “that is a seventy year old woman, you tased her, what the fuck, what happened.” [ECF No. 34-2 at 19:36:10-19:38:08, see also, e.g., ECF No. 38-5 at 33:13-16 (“We made it into the house, went to the back room where we heard the struggle and we saw Deputy Duecker standing over Ms. Webb and we assisted in handcuffing Ms. Webb.”)].

6 As stated by the Fourth Circuit, “[g]enerally, a taser has two modes: ‘probe' or ‘dart' mode and ‘drive stun' mode. In probe mode, two probes are fired from a distance, attached to thin electrical wires, to lodge in the skin of the subject. The taser delivers a five-second cycle of electricity designed to override the central nervous system, disabling the subject.” Yates v. Terry, 817 F.3d 877, 881 n.1 (4th Cir. 2016) (citations omitted). Duecker testified that he deployed the taser as follows: “Five drive stuns and I only recall two times with the probes. Of the five drive stuns, I believe two actually connected.” [ECF No. 381 at 54:7-12; see also ECF No. 7 at 2 (“Duecker's Taser was deployed a total of ten times on Plaintiff”)].

According to a report written by Fairbanks:

[Duecker] then relayed the facts of the fight. After we all calmed down we went outside and Deputy Duecker told me he was going to charge her with filing a false police report and assaulting a police officer while resisting arrest. I immediately told him that was not the correct charge due to the civil nature of the call. After talking a few minutes, it was decided by both of us that due to her [demeanor] and level of intoxication, breach of peace would be the more appropriate charge.

[ECF No. 38-1 at 78, see also id. at 43:10-44:1 (Duecker testifying that “I knew that there was a charge available for unlawful use of 911, but with consulting my corporal and my lieutenant on the scene and the demeanor of Corporal Fairbanks, we-it was decided to make the charge for breach of peace and assault on a police officer while resisting arrest.”)]. Plaintiff was treated by emergency medical services and transported to Alvin S. Glenn Detention Center. Id. at 42:13-18. Plaintiff's charges were favorably dismissed on or about March 6, 2019. [ECF No. 37-4].

On February 21 or 22, 2019, Duecker was fired from his position with RCSD. [ECF No. 38-1 at 42:6-12]. Following a criminal investigation, Lieutenant Isenhoward (“Isenhoward”) for RCSD charged Duecker with assault and battery, third degree, as a result of Duecker's arrest of Plaintiff. [ECF No. 38-4]. Magistrate Judge Surles issued an arrest warrant for Duecker on February 22, 2020, and the case against Duecker is being prosecuted by Solicitor Byron Gibson. [ECF No. 37-3, ECF No. 35-8 at 95:24-96:18].⁷II. Discussion

7 At the time of Duecker's deposition in the instant case, he testified the charge against him for assault and battery, third degree, was still pending. [ECF No. 38-1 at 59:19-60:1].

A. Standard on Summary Judgment

The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the nonmoving 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, “[o]nly 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.” Id. at 248.

B. Analysis

1. Claims for Unreasonable Seizure and Excessive Force

Duecker argues (1) he is entitled to qualified immunity, (2) Plaintiff's claim for unreasonable seizure fails in that he had probable cause to detain and arrest her, and (3) Plaintiff's claim for excessive force fails because the amount of force was objectively reasonable in light of the totality of the circumstances presented. [See ECF No. 34]. Plaintiff disputes each of these arguments, arguing additionally that Duecker's motion as to these claims fail in that he entered her home without a warrant and exercised force and caused her arrest in the absence of any evidence of exigent circumstances. [See ECF No. 37 at 4].

a. Warrantless Entry and Unreasonable Seizure

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.⁸ “It is, of course, well understood that ‘the Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects.'” United States v. Azua-Rinconada, 914 F.3d 319, 324 (4th Cir. 2019) (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)). “The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises.” Id. (citing Illinois, 497 U.S. at 181)); see also Bashir v. Rockdale Cty., 445 F.3d 1323, 1328 (11th Cir. 2006) (“[A] warrantless arrest in a home violates the Fourth Amendment unless the arresting officer had probable cause to make the arrest and either consent to enter or exigent circumstances demanding that the officer enter the home without a warrant.”) (emphasis in original).

8 Plaintiff states in her complaint, concerning her unreasonable seizure and excessive force claims, that both her Fourth and Fourteenth Amendment rights have been violated. [See ECF No. 12 at 5]. These claims, however, are properly analyzed under Fourth Amendment jurisprudence. See, e.g., Bailey v. Kennedy, 349 F.3d 731 (4th Cir. 2003) (analyzing unreasonable seizure and excessive force claims under the Fourth Amendment where the force used was employed after the suspect was lying face down on the floor of his residence, in handcuffs and leg restrains). Additionally, no party has addressed Plaintiff's claims in conjunction with the Fourteenth Amendment.

Additionally, under the qualified immunity defense, “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). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).

To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.

Duecker “acknowledges that in order to lawfully enter a person's home to make an arrest, you must have: (1) a warrant; (2) consent; or (3) an exigent circumstance, ” but argues, “[h]ere, quite simply. . . he had consent to enter the residence ....” [See ECF No. 41 at 1].⁹ The only evidence Duecker offers in support is an affidavit completed by Gossette and notarized on October 29, 2020, that states, without further detail, as follows: “The Richland County Sheriff's Deputy who initially responded to my residence on February 1, 2019, Deputy Cameron Duecker, had consent to cross the threshold of and enter my residence as part of his investigation.” [ECF No. 41-1 ¶ 5].¹⁰

9 Duecker does not argue that he either possessed a warrant or that exigent circumstances justified his entry into the residence. [See ECF No. 34, ECF No. 41].

10 Duecker also cites to Isenhoward's deposition wherein he states that he does not believe Duecker's entry into Plaintiff's residence was unlawful and, instead, believed it to be lawful in that “they were discussing . . . the situation” and Duecker “was called there.” [ECF No. 41-2 at 33:22-34:4]. However, Isenhoward further testified he did not know if anyone gave consent to Duecker to enter the residence. See id. at 34:7-10. Therefore, Isenhoward's testimony does not support Duecker's position that although he did not have a warrant or exigent circumstances to enter the residence, he had Gossette's consent.

Duecker's attempt, via Gossette's affidavit, to justify his warrantless entrance into Plaintiff's home fails for multiple reasons. First, turning to the body camera evidence, from the moment Duecker knocked on the residence door to the moment Duecker entered the residence, Duecker did not verbally request, or receive, permission to enter the residence and was instead informed by Plaintiff that he was not “going to do shit” in response to Ducker's statement that he would arrest Plaintiff if she called 911 again. [See ECF No. 34-2 at 19:28:00-19:31:03].¹¹ As held by the Supreme Court, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the [video] record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). The instant case stands in contrast to, for example, Azua-Rinconada, where “[t]he [body camera] footage convincingly show[ed] that after Powell opened the door, the officers conversed with her in a calm, casual manner and that Powell freely and with a degree of graciousness invited the officers into the trailer.” 914 F.3d at 325.¹²

11 Duecker does not argue, nor does the body camera evidence indicate, consent could “be implied from [Gossette's] words, gestures, or conduct.” See United States v. Moreland, 437 F.3d 424, 429 (4th Cir. 2006); see also id. (“This burden [on the government to prove implied consent] is heavier where consent is not explicit, since consent is not lightly to be inferred”) (citations omitted).

12 Plaintiff additionally cites Georgia v. Randolph, 547 U.S. 103, 108 (2006) wherein the Supreme Court held that one occupant may not give law enforcement effective consent to search shared premises against a co-tenant who is present and refuses permission. As stated above, the body camera evidence does not show that Duecker requested, or received, permission to enter the residence. Had he received permission from Gossette, however, Georgia indicates such permission would be invalid given Plaintiff's presence at the door and verbal objections. See id. at 121 (“if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search ”).

Second, Duecker himself testified he did not have consent to enter the residence in his deposition as follows:

Q: All right. One other question, Cameron, Now that you're inside the home, prior to his did Mrs. Webb or any other person in the home give you consent to come into the home?

A: Not that I recall.

Q: Okay. Would this body camera have caught that, should it have caught it?

A: I would imagine it would have.

[ECF No. 38-1 at 32:19-33:1; see also ECF No. 35-2 at 3 (Duecker stating as follows: “As she retreated back into the house, Mr. Gossett reiterated that this was an ongoing issue and I decided to detain her for filing a false complaint. I withdrew my handcuffs as she retreated further into the house. I caught up to her in her bedroom ....”)]. Duecker makes no reference to seeking or receiving permission to enter the residence in either his sworn statement concerning the day in question, the RCSD's incident report on which he was the reporting officer, or otherwise in his deposition. [See ECF Nos. 35-2, 37-1, 38-1].

Third, the Fourth Circuit has “referred to bogus affidavits submitted in opposition to summary judgment for the purpose of creating disputes of material fact as ‘sham' affidavits.” Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 422 (4th Cir. 2014); see also Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984) (“If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” (citations omitted)). Although the issue of sham affidavits usually arises where a plaintiff submits an affidavit contradicting previous deposition testimony to defeat summary judgment made by a defendant, and here a defendant has submitted an affidavit by another person contradicting his own deposition testimony, the principle remains that “[a] genuine issue of material fact is something on which the parties disagree, not on which one party is internally contradictory.” Wilson v. Gaston Cty., NC, 685 Fed.Appx. 193, 199 (4th Cir. 2017).

Duecker makes no attempt to explain the inconsistencies found among Gossette's affidavit, Duecker's testimony, and the body camera evidence, and the facts taken in light most favorable to Plaintiff, presented through the body camera evidence and Duecker's own testimony, are that Duecker did not seek anyone's consent nor receive anyone's consent to enter Plaintiff's home. For the reasons stated, Gossette's affidavit, implying, but not stating, he gave consent to Duecker at some undisclosed time through some undisclosed method, does not change this conclusion.¹³

13 Although not relied upon by the undersigned, Plaintiff also has put forth affidavit evidence from Gossette's sister, Covey Dinkins, and a private investigator, David Anatra, calling into question the legitimacy of Gossette's affidavit. [See ECF No. 47-1 ¶ 4 (“William stated . . . he was swamped by officers that day .... He also said that after he signed the statement, he was told that Sheila's case was over”); ECF 47-2 ¶¶ 6, 8, 10 (“[Gossette] explained they did not tell him what he was signing and he did not read it, but he just signed it .... Mr. Gossette said after watching the video that maybe he didn't tell Duecker anything and just motioned to Duecker when Duecker's back was turned. He then recanted that statement and said he must have given permission at the door ‘I'm not going to help my sister.'”)].

Because it is undisputed Plaintiff was arrested in her home and the evidence taken in light most favorable to Plaintiff shows Duecker entered Plaintiff's home without a warrant, exigent circumstances, or permission, Duecker violated Plaintiff's Fourth Amendment rights by entering her home and arresting her. See, e.g., Clark v. Bridges, 211 F.Supp.3d 731, 739 (D.S.C. 2016) (“A warrantless arrest inside a suspect's home, however, requires a different analysis because law enforcement officers are prohibited from entering a suspect's home without consent or a warrant. Such an arrest is only permissible if both probable cause and exigent circumstances are present.”) (citing Payton v. New York, 445 U.S. 573, 586, 590 (1980)).

Additionally, the rights at issue were clearly established at the time of the alleged misconduct.¹⁴ See, e.g., Kuklane v. Whittington, No. 93-1843, 1994 WL 564750, at *2 (4th Cir. October 17, 1994) (“the right at issue here was clearly established and a reasonable officer would have known that breaking into a home to arrest a person for violating the noise ordinance was unreasonable, particularly when a warrant could be obtained and the exigent circumstances were minor or non-existent”); Bashir, 445 F.3d at 1331 (“[I]t was clearly established the deputies' conduct violated the Fourth Amendment. A reasonable law enforcement officer faced with these circumstances would have known he could not enter the home and arrest Bashir without a warrant, exigent circumstances, or consent.”) (citing Payton, 445 U.S. at 586).

14 Although Duecker invokes the defense of qualified immunity generally, he does not discuss this defense specifically with regard to his warrantless entry into Plaintiff's home. [See ECF No. 34, ECF No. 41]. Thus, Duecker has failed to carry his burden of showing this defense is applicable. See, e.g., Betton v. Belue, 942 F.3d 184, 190 (4th Cir. 2019) (“The burden of establishing the affirmative defense of qualified immunity rests on the party seeking to invoke it.”). Notwithstanding, as stated above, the rights at issue were clearly established on the date Plaintiff was arrested.

Duecker argues, and Plaintiff disputes, that Duecker had probable cause to arrest Plaintiff for violating the following laws recognized by the State of South Carolina: (1) common law breach of the peace, (2) S.C. Code Ann. § 1617-725, which punishes knowingly making a false complaint or statement to “any law enforcement officer concerning the alleged commission of a crime by another, ” and (3) S.C. Code Ann. § 23-47-80, which criminalizes acts that include “contact[ing] the emergency 911 number and intentionally mak[ing] a false report.” [See ECF No. 34 at 7-8, ECF No. 37 at 12-16]. However, as stated, the existence of probable cause does not by itself validate a warrantless nonconsensual home arrest. See, e.g., Payton, 445 U.S. at 588-89; see also Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (holding absent exigent circumstances, police officers' warrantless entry into defendant's apartment and ensuing arrest and search violated the Fourth Amendment, even though the officers had probable cause); Minnesota v. Olson, 495 U.S. 91, 95 (1990) (“It was held in Payton . . . that a suspect should not be arrested in his house without an arrest warrant, even though there is probable cause to arrest him.”).

Accordingly, the undersigned recommends the district judge deny Duecker's motion for summary judgment as to Plaintiff's unreasonable seizure claim.¹⁵

15 Plaintiff additionally argues that because Duecker “entered Plaintiff's home without a warrant, exercised force and caused her arrest in the absence of any evidence of exigent circumstances, ” Duecker's entire motion for summary judgment should be denied, including as to Plaintiff's excessive force claim. [See ECF No. 37 at 4]. However, as held by the Fourth Circuit, “[w]e first dispense with Hupp's argument that because she was unlawfully arrested, the use of any force was necessarily unconstitutional ....we consider the crime that is alleged to have been committed in connection with our overall analysis of all of the circumstances surrounding the use of force.” Hupp v. Cook, 931 F.3d 307, 322 (4th Cir. 2019) (emphasis in original).

b. Excessive Force

Claims that law enforcement officials have used excessive force in the course of an arrest are properly analyzed under the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). Determining whether the force used to carry out a particular arrest is “unreasonable” under the Fourth Amendment requires “balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985). The outcome of this balancing test necessarily depends on the facts and circumstances of the particular case. Id. at 8-9 (holding question is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure”). Factors to consider in this analysis include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether she is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. Further, the analysis “must embody allowances for the fact that police officers are often forced to make split-second judgments- in circumstances that are tense, uncertain and rapidly evolving-about the amount of force that is necessary in a particular situation.” Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009) (citation omitted). Next, “[t]he court must also consider the extent of the injuries caused to the plaintiff.” Lassiter v. Reece, C/A No. 3:07-885-HFF-JRM, 2008 WL 2852164, at *4 (D.S.C. July 22, 2008) (citing Jones v. Buchanan, 325 F.3d 520, 530-31 (4th Cir. 2003)).

Applicable here, the Fourth Circuit has addressed the use of a taser against a noncompliant but unarmed suspect as follows:

While the questions whether an arrestee has been restrained and is complying with police directives are, of course, relevant to any inquiry into the extent to which the arrestee “pose[s] a continuing threat to the officers' safety, ” they are not dispositive. A rule limiting taser use to situations involving a proportional safety threat does not countenance use in situations where an unrestrained arrestee, though resistant, presents no serious safety threat.

Indeed, application of physical restraints cannot be the only way to ensure that an arrestee does not pose a sufficient safety threat to justify a tasing. If it were, use of a taser would be justified at the outset of every lawful seizure, before an arrestee has been restrained. This, of course, is not the law. Courts recognize that different seizures present different risks of danger .... Painful, injurious, serious inflictions of force, like the use of a taser, do not become reasonable simply because officers have authorization to arrest a subject who is unrestrained.

Even noncompliance with police directives and nonviolent physical resistance do not necessarily create “a continuing threat to the officers' safety.” other circuits have held that taser use can constitute excessive force when used in response to non-violent resistance. The subject of a seizure “refus[ing] to release his arms for handcuffing, ” for example, “is no[t] evidence suggesting that [he] violently resisted the officers' attempts to handcuff him.” Such a refusal, therefore, does not justify deploying a taser when the subject “[i]s unarmed and there [i]s little risk [he] could access a weapon ....

In all of these cases, we declined to equate conduct that a police officer characterized as resistance with an objective threat to safety entitling the officer to escalate force. Our precedent, then, leads to the conclusion that a police officer may only use serious injurious force, like a taser, when an objectively reasonable officer would conclude that the circumstances present a risk of immediate danger that could be mitigated by the use of force. At bottom, “physical resistance” is not synonymous with “risk of immediate danger.”

Estate of Armstrong ex rel. Armstrong v. Vil. of Pinehurst, 810 F.3d 892, 903 05 (4th Cir. 2016) (citations omitted, emphasis in original); see also Livingston v. Kehagias, 803 Fed.Appx. 673, 684 (4th Cir. 2020) (“Livingston's only resistance was of the passive variety, in the form of refusing to give up his hands for handcuffs.”); Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009) (refusal to terminate a telephone call after police ordered an arrestee to do so does not justify tasing even though the police officer was concerned that the arrestee could use glass tumblers near her feet as weapons or could kick the officer).

Turning to the Graham factors listed above, the parties do not dispute the first factor, the severity of the crime at issue, weighs in Plaintiff's favor, [see ECF No. 34 at 10-11], “which means that there was no reason for them to believe that [plaintiff], a suspected misdemeanant, would become dangerous.” Livingston, 803 Fed.Appx. at 683.¹⁶ Turning to the second and third factors, Duecker argues (1) Plaintiff posed “a threat to officer safety” in that “during the time that only one of the handcuffs was secured upon the Plaintiff . . . it could be used as a weapon against him” and (2), citing disputed evidence, she “actively scratch[ed] and claw[ed] [his] hands and arms as she resisted him throughout his encounter.” [ECF No. 34 at 10-11].¹⁷

16 Although Duecker cites Plaintiff's testimony where “she acknowledged that it would be fair for a law enforcement officer to believe that any person identifying themselves as a military person would be trained in hand-to-hand combat, ” [see ECF No. 34 at 10 (citing ECF No. 34-5 at 33:6-16)], Duecker does not argue, and the record does not support, a conclusion that a reasonable officer would suspect Plaintiff would become dangerous solely because she identified herself as military.

17 The parties dispute whether Plaintiff was trying to scratch Duecker's hands or otherwise harm him or was trying to peel away his hands and the handcuffs. [ECF No. 34-1 at 53:10-11, ECF No. 37 at 3]. The body camera evidence is inconclusive as to Plaintiff's motives.

Viewing evidence in light most favorable to Plaintiff and given the Fourth Circuit's guidance in Armstrong above, Duecker's arguments fail, and both the second and third Graham factors weigh in Plaintiff's favor. It is undisputed Plaintiff did not want to be handcuffed or arrested. To prevent that from occurring, and taking evidence in light most favorable to her, she slowly walked away from Duecker, withdrawing further into her home, she got into her bed and pulled up the covers, she repeatedly pulled her hands away from Duecker and tried to peel his hands off of hers, she laid limp to prevent him from rolling her over, and she repeatedly requested he leave her alone. In response to this passive, albeit repeated resistance, Duecker employed his taser multiple times against Plaintiff, who was unarmed and did not attack or attempt to attack Duecker. See, e.g., Estate of Armstrong, 810 F.3d at 901-02 (“here, the factual circumstances demonstrate little risk-Armstrong was stationary, non-violent, and surrounded by people willing to help return him to the Hospital. That Armstrong was not allowing his arms to be pulled from the post and was refusing to comply with shouted orders to let go, while cause for some concern, do not import much danger or urgency into a situation that was, in effect, a static impasse.”).¹⁸

18 Duecker additionally argues that he “assessed the circumstances in which he was confronted and determined that the taser was the only tool in his kit that would assist him in bringing the Plaintiff under control” and that he did not use the taser to cause Plaintiff harm or “for any other purpose than to assist in securing the detention of the Plaintiff.” [ECF No. 34 at 10-11]. Such an argument is inconsistent with the law of this Circuit. See Estate of Armstrong, 810 F.3d at 904 (“Force [like a taser] that imposes serious consequences requires significant circumscription. Our precedent, consequently, makes clear that tasers are proportional force only when deployed in response to a situation Accordingly, the undersigned recommends the district judge deny Duecker's motion for summary judgment as to Plaintiff's excessive force claim. in which a reasonable officer would perceive some immediate danger that could be mitigated by using the taser.”) (emphasis in original)).

Additionally, the right at issue was clearly established at the relevant time. See, e.g., id. at 903-05; Hupp, 931 F.3d at 321-23 (reversing grant to summary judgment on qualified immunity grounds, holding “[o]n these disputed versions of the facts, and in light of the other Graham factors that are unfavorable to Trooper Cook, we cannot say that a reasonable officer would consider Trooper Cook's use of force reasonable under the circumstances.”); Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994) (concluding that disputed versions of plaintiff's resistance combined with other “unfavorable” Graham factors precluded qualified immunity on excessive force claim); Barfield v. Kershaw Cty. Sheriff's Office, 638 Fed.Appx. 196, 204 (4th Cir. 2016) (“As in Rowland, Threatt ‘took a situation where there obviously was no need for the use of any significant force and yet took an unreasonably aggressive tack.' This objectively unreasonable application of force, combined with the weakness of the Graham factors, puts the ‘constitutional question beyond debate.'”) (citing Smith v. Ray, 781 F.3d 95, 100, 104 (4th Cir. 2015)).

Accordingly, the undersigned recommends the district judge deny Duecker's motion for summary judgment as to Plaintiff's excessive force claim.

2. SCTCA Claims

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 governmental entity claiming an exception to the waiver of immunity under the SCTCA has the burden of establishing any limitation on liability. Faile v. S.C. Dep't of Juvenile Justice, 566 S.E.2d 536, 540 (S.C. 2002).

Before turning to the claims at issue, as a preliminary matter, the parties argue whether or not Duecker's actions “were within the scope of his official duties” or conducted with “actual malice” or “intent to harm, ” with Plaintiff and Duecker taking the position that Duecker acted within the scope of his duties and without actual malice or intent to harm, and with Lott arguing otherwise, thus rendering RCSD entitled to absolute sovereign immunity from Plaintiff's tort claims. [See ECF No. 34 at 2, ECF No. 37 at 1-2, ECF No. 38 at 7-14, ECF No. 35-1 at 4-11, ECF No. 44 at 1-7].

First, as to whether Duecker was acting within the scope of his official duties, it is undisputed the events in question transpired when Duecker was dispatched to Plaintiff's residence in the patrol vehicle that had been issued to him by the RCSD, while wearing his official uniform and the full kit of gear that had been issued to him for patrol purposes, including a sidearm, taser, pepper-OC spray, baton, and two sets of handcuffs, and that, thereafter, Duecker entered Plaintiff's home, called for backup, and arrested her.¹⁹

19 Plaintiff argues that following her arrest, Duecker additionally “later obtained a warrant for Plaintiff's arrest on [the] grounds” of breach of peace and assault on a police officer while resisting arrest. [ECF No. 38 at 9].

Notwithstanding, Lott argues Duecker “explicitly commit[ed] an unlawful act, ” referencing the force employed by Duecker, and therefore he “not only exceed[ed] his authority but clearly act[ed] in contravention with the business of the Sheriff.” [ECF No. 35-1 at 6-8]. In support, Lott cites prevailing law enforcement standards as articulated in Isenhoward's deposition, as well as the ensuing criminal investigation of Duecker, arrest warrant issued against Duecker, and prosecution of Duecker. See id. Lott argues that because the relevant facts, as captured by the body camera evidence, are not in dispute, he is entitled to summary judgment because “Duecker's actions at the relevant times were outside the scope of his official duties as a RCSD deputy.” [ECF No. 44 at 5].

For a government employee to be acting within the scope of his official duty or employment, the employee must be (1) “acting in and about the official business of the government entity, ” and (2) “performing official duties.” Wade v. Berkeley County, 498 S.E.2d 684, 688 (S.C. Ct. App. 1998) (citing S.C. Code Ann. § 15-78-30(i))). “An act is within the scope of a servant's employment where [it is] reasonably necessary to accomplish the purpose of his employment and in furtherance of the master's business.” Armstrong v. Food Lion, Inc., 639 S.E.2d 50, 52 (S.C. 2006). “On the other hand, if the servant acts for some independent purpose of his own, wholly disconnected with the furtherance of his master's business, his conduct falls outside the scope of his employment.” Crittenden v. Thompson-Walker Co., Inc., 341 S.E.2d 385, 387 (S.C. Ct. App. 1986).

As stated above, Lott has the burden of establishing any limitation on liability under the SCTCA, and, at this time, Lott has failed to carry his burden. Notwithstanding Lott's invocation of the body camera evidence and Plaintiff's characterization of Duecker's actions as, for example, “unlawful and shocking” and “extreme and outrageous, ” [see ECF No. 44 at 4-7], the evidence creates more than one reasonable inference as to whether Duecker acted outside the scope of his employment. The jury could infer from the evidence presented that Duecker's actions were professionally motivated and that he took no actions disconnected from his employment, particularly here where Lott has submitted no evidence that Duecker acted “for some independent purpose of his own.” See Crittenden, 341 S.E.2d at 387-88 (holding unauthorized assault fell within scope of employment where intended to aid in collection of debt owed to employer); see also Jones v. Elbert, 34 S.E.2d 796, 799 (S.C. 1945) (finding employer responsible for employee's assault on supplier arising out of dispute over product); see also, e.g., Peirce v. Bryant, C/A No. 4:14-2927-BHH-TER, 2016 WL 11410276, at *4 (D.S.C. Feb. 1, 2016) (“The acts of Defendants about which Plaintiff complains, obtaining a warrant for her arrest and arresting her pursuant to that warrant, fall within the definition of ‘scope of official duty' as defined in the SCTCA.”), report and recommendation adopted, C/A No. 4:14-2927-BHH, 2016 WL 1061060 (D.S.C. Mar. 17, 2016).²⁰

20 Plaintiff argues that because Duecker contends he acted within the scope of his duties and without malice or intent to harm, and Lott argues otherwise, Duecker and Lott “are necessarily creating a genuine issue” precluding grant of summary judgment to Lott. [See ECF No. 38 at 9 n.8]. As the record shows, Duecker testified he was operating as a law enforcement officer at all relevant times, he was making a lawful arrest, the use of his taser was necessary “to affect the detention” of Plaintiff, and he was acting in a way to “avoid injury.” [ECF No. 38-1 at 37:17-23, 55:4-19, 58:11-13, 64:1-12]. Duecker stated that he did not act with malice or an intent to harm Plaintiff. Id. at 55:4-19, 64:112. Fairbanks also testified Duecker was acting within the course and scope of his duties when he arrested Plaintiff and deployed his taser. [ECF No. 38-5 at 59:18-61:9]. Finally, Isenhoward testified that although he thought the arrest of Plaintiff was unlawful, the arrest might not be outside of the scope of Duecker's official duties, but the tasing that followed was. [ECF No. 38-6 at 78:10-17, 104:14-17; see also id. at 55:21-56:7].

Cases cited by Lott do not counsel a different conclusion. For example, in Kase v. Ebert, 707 S.E.2d 456, 458 (S.C. Ct. App. 2011), the court held it “undisputed” that “the altercation at issue here did not arise because Ebert was protecting either a company vehicle or the cargo he was transporting. Rather, Ebert had already exited the vehicle and was defending himself against what he perceived to be a violent attack by Kase.” Here, however, no such undisputed evidence has been presented that Duecker, in tasing Plaintiff, acted for any other reason than in furtherance of Sheriff's business.²¹

21 Cases cited by Lott concerning sexual misconduct are of limited relevance to the present inquiry where courts have found sexual misconduct to be categorically outside the scope of one's employment and where sexual assault is not presently at issue. See, e.g., Frazier v. Badger, 603 S.E.2d 587, 591 (S.C. 2004) (“sexual harassment by a government employee is not within the employee's ‘scope of employment.'”); Doe v. Smith, No. 2014-UP-267, 2014 WL 2968925, at *1 (S.C. Ct. App. June 30, 2014); S.C. Med. Malpractice Liab. Ins. Joint Underwriting Ass'n v. Ferry, 354 S.E.2d 378, 381 (S.C. 1987); Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 11 (S.C. Ct. App. 1997); State Farm Fire & Cas. Co. v. Barrett, 530 S.E.2d 132, 136 (S.C. Ct. App. 2000) (“we hold that an intent to harm will be inferred as a matter of law when a person sexually assaults, harasses, or otherwise engages in sexual misconduct towards an adult”).

In Newkirk, this court addressed claims of a warrantless arrest without probable cause and excessive force against a state trooper conducting a traffic stop while on duty. In rejecting the argument of the South Carolina Department of Public Safety (“SCDPS”) that the trooper acted outside the scope of his official duties, this court stated as follows:

It may appear impossible to dispute that Mr. Enzor, then a state trooper, acted within the scope of his official duties when he effected a traffic stop while on duty patrolling I-95 .... Nonetheless, SCDPS denies that Mr. Enzor acted within the scope of his official duties. SCDPS may present that position at trial, but for summary judgment SCDPS must show that it is beyond dispute that Mr. Enzor acted beyond the scope of his duties as a trooper when (according to SCDPS) he stopped the Newkirks for speeding while on duty patrolling I-95 for speeding infractions. SCDPS has not met that burden, instead, SCDPS only points to deposition testimony in which SCDPS asked Mrs. Newkirk whether she believed acting on racist beliefs is part of Mr. Enzor's “job as a trooper, ” to which she answered, “It's not.” Mrs. Newkirk's personal beliefs about South Carolina highway patrolman's duties are not relevant to the definition of scope of official duty or employment set forth in S.C. Code § 15-78-30(i).

Newkirk, 240 F.Supp.3d at 436 (select citations omitted); see also Wade, 498 S.E.2d at 688 (“Any doubt as to whether the servant was acting within the scope of his authority when he injured a third person must be resolved against the master, at least to the extent of requiring that the question be submitted to the jury.”) (citing Adams v. South Carolina Power Co., 21 S.E.2d 17 (S.C. 1942)).

Here, Lott has not shown it is beyond dispute that Duecker acted outside the scope of his duties when he was dispatched to Plaintiff's residence and arrested her, notwithstanding the force employed while so doing, and therefore also has not shown he is not the appropriate defendant for Plaintiff's claims brought pursuant to the SCTCA.²² See Barfield, 638 Fed.Appx. at 201 (“[W]hen a Sheriff's deputy uses ‘force greater than is reasonably necessary under the circumstances' the governmental agency may be liable for battery.”) (citing Roberts v. City of Forest Acres, 902 F.Supp. 662, 671-72 & n. 2 (D.S.C.1995)); Simmons v. Charleston Cty. Sheriff's Office, C/A No. 2:19-1754-BHH, 2019 WL 5387911, at *1 (D.S.C. Oct. 22, 2019) (“The governmental agency, in this case CCSO, may be liable for the assault and battery.”); Meyer v. McGowan, C/A No. 2:16-00777-RMG, 2018 WL 4462367, at *5 (D.S.C. Sept. 18, 2018) (same).²³

22 The implication of Lott's argument is that when a law enforcement officer “commits an unlawful act, ” he or she automatically acts outside the scope of his or her employment. [See ECF No. 35-1 at 7]. However, Lott fails to provide case law, nor is the court aware of any, supporting this sweeping position, and the case law cited above holds otherwise. See also, e.g., Wingate v. Byrd, C/A No. 4:13-03343-BHH-KDW, 2017 WL 10518177, at *12 (D.S.C. Jan. 20, 2017) (“Assault by a sheriff's deputy in the performance of his duties is among the specific acts for which a sheriff is liable. Because this is the wrong [the deputies] committed, the district court properly held the sheriff liable.”) (citing Scott v. Vandiver, 476 F.2d 238, 243 (4th Cir. 1973)).

23 Lott's citation to McCall v. Williams, 52 F.Supp.2d 611, 615 (D.S.C. 1999) is inapposite where, in that case, the court held the Eleventh Amendment barred Plaintiff's pendent state law claims for assault and battery against the defendant in his official capacity as a deputy sheriff.

Likewise, Lott fails to submit undisputed evidence that Duecker acted with actual malice or with intent to harm, and, instead, the record evidence shows otherwise, as discussed below. Lott argues, however, actual malice and an intent to harm can be inferred from Duecker's actions as shown by the body camera evidence, that Plaintiff has alleged Duecker acted with actual malice and intent to harm, and that this court has numerous times held government entities are immune from suits for intentional torts. [ECF No. 44 at 2-7].

First, although the body camera evidence shows the actions Duecker took, it does not provide undisputed evidence as to whether Duecker took those actions with actual malice or intent to harm. See, e.g., Eaves v. Broad River Elec. Coop., Inc., 289 S.E.2d 414, 416 (S.C. 1982) (“Malice is defined as the deliberate intentional doing of a wrongful act without just cause or excuse.”) (citations omitted)). Here, a reasonable juror could conclude that Duecker did not act with actual malice or intent to harm, particularly based on Duecker's testimony that he took actions “in an effort to calm [Plaintiff] down, ” he believed his conduct constituted a lawful arrest, he attempted techniques prior to tasing Plaintiff that he understood to be the least harmful possible, and, even though he deployed his taser, he believed that the primary purpose of the taser is not to cause pain, but to assist in putting individuals into detention. [ECF No. 38-1 at 36:22-37:3, 48:10-22, 54:13-18]. Duecker further stated he chose to tase Plaintiff, not to cause harm but “to affect the detention.” Id. at 37:17-20. Duecker testified he did not have any intention of harming Plaintiff and did not harbor any malice towards Plaintiff, but “in fact, actively sought ways to avoid injury.” Id. at 55:4-10, 55:16-19, 64:1-5.²⁴

24 Plaintiff has additionally put forth evidence that Fairbanks described Duecker “as truthful” and believes that Duecker was being truthful when he claimed that he did not intent to harm or cause injury to Plaintiff and, in fact, actively sought ways to avoid injury to Plaintiff, [ECF No. 38-5 at 67:2-68:16], and Isenhoward believes Duecker's claims, under oath, that he did not intent to harm Plaintiff were sincere. [ECF No. 38-6 at 51:21-53:13].

Second, to the extent Lott argues summary judgment should be granted based on Plaintiff's allegations as found in her complaint, [see ECF No. 35-1 at 9 (citing ECF No. 12 ¶ 42 (Plaintiff alleging, for example, Duecker “intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain such distress would result from his conduct”))], the undersigned rejects this argument. Although Plaintiff has alleged Duecker's conduct was “extreme and outrageous, ” [ECF No. 12 ¶ 43], Plaintiff has not alleged Duecker acted with actual malice or intent to harm. Additionally, on summary judgment, “the non-moving party cannot solely rely on mere allegations or denials of [his] pleadings.” Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013) (citations omitted). Here, too, Lott cannot rely solely on Plaintiff's allegations.

Third, “[a]lthough the SCTCA 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, 240 F.Supp.3d at 437 (citing Anthony v. Ward, 336 Fed.Appx. 311, 317 (4th Cir. 2009)); see also id. at 436 (rejecting argument that S.C. Code Ann. § 15-7860(17) automatically bars the plaintiff's “intentional tort” claims including assault, battery, and false imprisonment in that “each tort [the plaintiff] alleges could be committed without actual malice or intent to harm.”); see also Smith v. Ozmint, 394 F.Supp.2d 787, 792 (4th Cir. 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.”).

Here, it is disputed whether Duecker acted within the scope of his duties, with actual malice, or with intent to harm. As discussed below, the undersigned recommends dismissal of Plaintiff's SCTCA claims for intentional infliction of emotional distress, defamation, and malicious prosecution. As to the remaining SCTCA claims for negligence, assault, battery, and false imprisonment, the undersigned recommends the district judge deny Lott's motion for summary judgment for immunity under the SCTCA.

a. Negligence/Gross Negligence Claims

To maintain an action for negligence, “a plaintiff must show: (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached that duty by a negligent act or omission; (3) the defendant's breach was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damages.” Roddey v. Wal-Mart Stores E., LP, 784 S.E.2d 670, 675 (S.C. 2016) (citation omitted). “Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.” Etheredge v. Richland Sch. Dist. One, 534 S.E.2d 275, 277 (S.C. 2000) (citation omitted). It is the failure to exercise even “slight care.” Id. Gross negligence has also been defined as a “relative term, and means the absence of care that is necessary under the circumstances.” Hollins v. Richland Cty. Sch. Dist. One, 427 S.E.2d 654, 656 (S.C. 1993).

As explained by the South Carolina Supreme Court:

An essential element in a cause of action based upon negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Without a duty, there is no actionable negligence. A plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law. When the duty is created by statute, we refer to this as a “special duty, ” whereas when the duty is founded on the common law, we refer to this as a legal duty arising from “special circumstances.”

Edwards v. Lexington Cty. Sheriff's Dep't, 688 S.E.2d 125, 128 (S.C. 2010) (citations omitted); see also Arthurs ex rel. Estate of Munn v. Aiken Cty., 551 S.E.2d 579, 582 (S.C. 2001) (“Today, a plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law.”); see also Faile, 566 S.E.2d at 546 (recognizing five instances in which a duty of care may arise: (1) when the defendant has a special relationship to the victim; (2) when the defendant has a special relationship to the injurer; (3) when the defendant voluntarily undertakes a duty; (4) when the defendant negligently or intentionally creates the risk; and (5) when a statute imposes a duty on the defendant).

“When the negligence plaintiff's cause of action against a governmental entity is founded upon a statutory duty, then whether that duty will support the claim should be analyzed under” the public duty rule. Arthurs ex rel. Estate of Munn, 551 S.E.2d at 583 (holding “the public duty rule is not grounded in immunity but rather in duty . . . [and] has not been affected by the enactment of the [SCTCA]”); see also Jensen v. Anderson County Dep't of Soc. Servs., 403 S.E.2d 615, 617 (S.C. 1991) (adopting a six-step special duty analysis as an exception to the public duty rule). Under the public duty rule, “statutes which create or define the duties of a public office create no duty of care towards individual members of the general public.” Edwards, 688 S.E.2d at 129. “On the other hand, where the duty relied upon is based upon the common law. . . then the existence of that duty is analyzed as it would be were the defendant a private entity.” Arthurs ex rel. Estate of Munn, 551 S.E.2d at 583.

Here, Plaintiff argues that Duecker owed her a duty of care due to special circumstances by being dispatched to her residence and by choosing to place her in investigative detention or under his control. [ECF No. 38 at 14-16 (citing Crowley v. Spivey, 329 S.E.2d 774, 780 (S.C. Ct. App. 1985) and Newkirk, 240 F.Supp.3d at 438)]. In so arguing, Plaintiff invokes a duty founded in the common law, not statute.²⁵

25 Plaintiff, in one sentence, asserts an additional duty pursuant to statute, stating as follows: “[i]n any event, South Carolina Code § 16-03-0600, assault and battery, third degree, creates a duty against unlawful injury and S.C. Code § 16-3-910 to unlawfully seize.” [ECF No. 38 at 16]. This sentence is insufficient to defeat summary judgment as to a negligence claim based on a statutory duty, particularly where Plaintiff puts forth no argument or case law as to how these statutes “impose[] a special duty” applicable in this instance. See, e.g., Edwards, 688 S.E.2d at 129.

As held by this court, under the common law duty of care, officers have a “duty to act reasonably in [their] interactions.” Murphy v. Fields, C/A No. 3:17-2914-CMC, 2019 WL 5417735, at *8 (D.S.C. Oct. 23, 2019) (denying RCSD's motion for summary judgment as to claims for negligence and gross negligence based on officer's actions in effecting plaintiff's arrest when “called by a [school] administrator . . . to address Plaintiff's refusal to comply with instructions, ” resulting in the plaintiff's arrest); see also Crowley, 329 S.E.2d at 780 (“One who assumes to act, even though under no obligation to do so, may become subject to the duty to act with due care.”); Newkirk, 240 F.Supp.3d at 438 (citations omitted) (“The evidence is undisputed that Mr. Enzor effected a roadside traffic stop of Mrs. Newkirk on I-95. Mr. Enzor chose to place Mrs. Newkirk under his control, and Mrs. Newkirk was not free to decline or to terminate the encounter. The Court therefore concludes as a matter of law that Mr. Enzor created special circumstances giving rise to a duty of care owed to Mrs. Newkirk. Specifically, Mr. Enzor owed Mrs. Newkirk the duty to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation.” (citations omitted)).

Lott does not address case law cited by Plaintiff and argues in his motion that Plaintiff's negligence-based claims should fail because South Carolina does not recognize a cause of action for negligent arrest or a negligent performance of a criminal investigation, citing Wyatt v. Fowler, 484 S.E.2d 590 (S.C. 1997) in support. [ECF No. 35-1 at 11-12].

In Wyatt, the plaintiff brought an action based in part on negligence against the sheriff and three deputies after two of the deputies entered plaintiff Wyatt's house while he was sleeping, in an attempt to execute an arrest warrant against an Allen Parrish. Id. at 591. After Wyatt provided identification establishing that he was not Allen Parrish, the deputies left. Id. The court held the sheriff did not owe Wyatt a legal duty, agreeing with other jurisdictions that have held “[t]he police owe a duty to the public at large and not to any individual” and “the state does not owe its citizens a duty of care to proceed without error when it brings legal actions against them.” Id. The court did not address a common-law duty.

The public duty rule, as applied in Wyatt, is not applicable in the present case. See Arthurs ex rel. Estate of Munn, 551 S.E.2d at 582 (“When, and only when, the plaintiff relies upon a statute as creating the duty does a doctrine known as the ‘public duty rule' come into play.”). As stated by the South Carolina Supreme Court:

Appellant in this case did not allege a violation of a statutory duty as the basis for his negligence claim. Rather, Appellant's allegations centered around violation of duties of care created by the common law, such as exercising reasonable caution. Generally, the public duty rule is invoked in cases where the duty is created by statute and would not otherwise exist. The duty to exercise reasonable care when operating a motor vehicle is not statutory; it is owed from all individuals to all other individuals. Therefore, we find the public duty rule is not implicated in this case.

Trousdell v. Cannon, 572 S.E.2d 264, 266-67 (S.C. 2002) (citations omitted); see also Murphy, 2019 WL 7195889, at *10 (“Wyatt supports the proposition that a third party injured by a law enforcement officer's actions cannot base the duty element of his negligence claim on that officer's general duty to protect the public at large. However, courts have found that a law enforcement officer can undertake a duty of care to a particular individual that can form the basis for a negligence claim.”); Washington v. Lexington Cty. Jail, 523 S.E.2d 204, 207 (S.C. Ct. App. 1999) (holding, based on Wyatt, that “those who maintain custody of prisoners or inmates do so for the protection of the public and are, therefore, not liable to individuals for damages caused by an escaped inmate under the public duty rule.”); Brown v. Brown, 598 S.E.2d 728, 731 (S.C. Ct. App. 2004) (“Woodrow's complaint also included negligence claims based on Officer McKee's decision to choose Joseph as the replacement driver and alleged failure by the town to properly train and supervise its police officers. Neither of these claims is based on statutory duties. Therefore, they are not barred by the public duty rule.”); cf. Arrington v. Hensley, C/A No. 5:15-93-BO, 2015 WL 4910203, at *2 (E.D. N.C. Aug. 17, 2015) (stating that under North Carolina law, “the public duty doctrine has never been invoked to shield police officers or their employers from liability where it is the affirmative actions of the police officers themselves which cause harm”).²⁶

26 Lott argues “Wyatt demonstrates that South Carolina does not recognize a cause of action for negligent arrest or a negligent performance of a criminal investigation.” [ECF No. 35-1 at 12]. However, Lott provides no South Carolina case law, nor is the court aware of any, so holding. Additionally, where this court has held Wyatt precludes a plaintiff's negligence claim against a law enforcement officer or police department, the court did not address duties based on common law. See Smith v. City of Charleston, C/A No. 2:06-00825-DCN, 2007 WL 9735801, at *5 (D.S.C. July 24, 2007); Turner v. Taylor, C/A No. 7:09-02858-JMC, 2011 WL 3794086, at *9 (D.S.C. Aug. 25, 2011).

Here, because Plaintiff relies on a duty founded on the common law, Lott's “argument based on the public duty rule is inapposite to [his] negligence claim.” Newkirk, 240 F.Supp.3d at 437.²⁷ Taking the evidence in the light most favorable to Plaintiff and because the undersigned rejects Lott's arguments that Plaintiff cannot bring negligence-based claims, the undersigned recommends the district judge deny Lott's motion for summary judgment as to this claim.

27 The undersigned rejects Lott's additional argument that “it is well settled under South Carolina law that intentional torts ‘cannot be committed in a negligent manner.'” [ECF No. 35-1 at 12 (citing State Farm Fire & Cas. Co., 530 S.E.2d at 137)] Although Lott appears to argue otherwise, see id., this court has held an investigation or arrest can be conducted in a negligent manner. See, e.g., Murphy, 2019 WL 5417735, at *8 (denying defendants' motion as to “Plaintiff's First Cause of Action against the RCSD for negligence and gross negligence as to the manner of Plaintiff's arrest by Fields”).

b. False Imprisonment

“The essence of the tort of false imprisonment consists of depriving a person of his liberty without lawful justification.” Law v. S.C. Dep't of Corr., 629 S.E.2d 642, 651 (S.C. 2006) (citations omitted). “To prevail on a claim for false imprisonment, the plaintiff must establish: (1) the defendant restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was unlawful.” Id. (citations omitted).

Lott argues that “Duecker's attempts to place Plaintiff in investigatory detention was undertaken with lawful authority, and, as a result, Plaintiff's false imprisonment [claim] fails.” [ECF No. 35-1 at 13-14 (citing Terry v. Ohio, 392 U.S. 1 (1968))].²⁸ However, as discussed above, Duecker's efforts to place Plaintiff in investigatory detention, and thereafter arrest, occurred in Plaintiff's home without a warrant, permission, or exigent circumstances. Therefore, taking facts in light most favorable to Plaintiff, her restraint was not lawful.

28 Lott further argues that “to the extent that this Court opines that probable cause existed at the relevant times, the relatively lower legal threshold of articulable, reasonable suspicion [as applied in Terry stops] is satisfied.” [ECF No. 35-1 at 14]. As stated above, because Duecker lacked exigent circumstances or permission to enter Plaintiff's home, his entry into Plaintiff's home was unlawful even if he had probable cause. Additionally, although Duecker states he entered Plaintiff's home to place her in investigatory detention, and the use of handcuffs in the context of some Terry stops may not be unreasonable, “[c]ertainly, the usual rules pertaining to Terry stops do not apply in homes.” Smith v. Jacko, C/A No. 2:16-655-BHH, 2019 WL 4162376, at *9 (D.S.C. Sept. 3, 2019) (citing United States v. Martinez, 406 F.3d 1160, 1165 (9th Cir. 2005)).

Accordingly, the undersigned recommends the district judge deny Lott's motion for summary judgment as to Plaintiff's false imprisonment claim.

c. Intentional Infliction of Emotional Distress

South Carolina Code Ann. § 15-78-30(f) provides that a “loss” recoverable under the SCTCA “does not include the intentional infliction of emotional harm.” Therefore, there is no remedy for the alleged intentional infliction of emotional distress, and Lott is entitled to summary judgment on this cause of action.²⁹

29 In her response to Lott's motion for summary judgment, Plaintiff does not address her claim for intentional infliction of emotional distress. [See ECF No. 38].

d. Defamation

The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). Here, Plaintiff argues “Defendant unlawfully charged Plaintiff resulting in a falsity, made the charge a matter of public records necessarily, regarding Plaintiff's criminal activity and resulting in her incarceration and prosecution.” [ECF No. 38 at 18].

“Although accusations of a crime are slanderous per se, these defamatory statements may be protected by a qualified privilege.” Harkness v. City of Anderson, S.C., C/A No. 8:05-1019-HMH, 2005 WL 2777574, at *5 (D.S.C. Oct. 25, 2005) (citing Holtzscheiter, 506 S.E.2d at 502). “The protection of [qualified] privilege extends generally to remarks made in the prosecution of an inquiry regarding a crime which has been committed; and for the purpose of detecting and bringing the criminal to punishment.” Id. (citing Bell v. Bank of Abbeville, 38 S.E.2d 641, 643 (S.C.1946)).

A speaker can lose this qualified privilege by speaking with actual malice. See Constant v. Spartanburg Steel Prods., Inc., 447 S.E.2d 194, 196 (S.C. 1994). “Actual malice can mean the defendant acted recklessly or wantonly, or with conscious disregard of the plaintiff's rights.” Id. “[T]he burden will be upon the plaintiff to show . . . actual malice.” Bell, 38 S.E.2d at 643. “While abuse of the conditional privilege is ordinarily an issue reserved for the jury . . . in the absence of a controversy as to the facts . . . it is for the court to say in a given instance whether or not the privilege has been abused or exceeded.” Woodward v. S.C. Farm Bureau Ins. Co., 282 S.E.2d 599, 601 (S.C. 1981).

Plaintiff puts forth no evidence or argument as to actual malice.³⁰ Further, under South Carolina law, contents of governmental records-such as judicial proceedings, case reports, published cases, investigative reports, or arrest records-do not give rise to liability for slander or libel. See Padgett v. Sun News, 292 S.E.2d 30, 32-33 (S.C.1982).

30 Regarding this claim, Plaintiff argues only, without elaboration or support, that “the occasion and the relationship of the parties do not give rise to communications that were qualifiedly privileged.” [ECF No. 38 at 18].

Therefore, the undersigned recommends the district judge grant Lott's motion for summary judgment as to Plaintiff's claim for defamation.

e. Malicious Prosecution

Under South Carolina law, a plaintiff must plead and prove each of the following elements to state a cause of action for malicious prosecution: (1) the institution or continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3) termination of such proceedings in plaintiff's favor; (4) malice in instituting such proceedings; (5) lack of probable cause; and (6) resulting injury or damages. See McBride v. School District of Greenville County, 698 S.E.2d 845, 855 (S.C. Ct. App. 2010). In response to Plaintiff's claim for malicious prosecution, Lott invokes one of the exceptions to liability as found in the SCTCA, providing immunity for the “institution or prosecution of any judicial or administrative proceeding.” See S.C. Code Ann. § 15-7860(23).

As this court has held:

The City also contends that it is immune from liability for McCoy's malicious prosecution claim under the SCTCA's immunity relating to “the institution or prosecution of a judicial proceeding.” S.C. CODE ANN. § 15-78-60(23). The Magistrate Judge recommended that the court grant the City's motion for summary judgment on this issue because McCoy's cause of action for malicious prosecution plainly falls within this express exception. The court agrees.

McCoy v. City of Columbia, 929 F.Supp.2d 541, 567 n.10 (D.S.C. 2013).³¹

31 Plaintiff does not address the applicability of S.C. Code Ann. § 15-78-60(23) to her claim for malicious prosecution or address case law cited by Lott in support. [See ECF No. 38 at 19].

Accordingly, the undersigned recommends the district judge grant Lott's motion for summary judgment as to Plaintiff's claim for malicious prosecution.

3. Claims for Negligent Hiring, Supervision, and Retention

The South Carolina Supreme Court has explained:

Just as an employee can act to cause another's injury in a tortious manner, so can an employer be independently liable in tort. In circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. As this recitation suggests, the employer's liability under such a theory does not rest on the negligence of another, but on the employer's own negligence. Stated differently, the employer's liability under this theory is not derivative, it is direct.

James v. Kelly Trucking Co., 661 S.E.2d 329, 330-31 (S.C. 2008) (citations omitted). More specifically, “[n]egligent hiring cases ‘generally turn on two fundamental elements-knowledge of the employer and foreseeability of harm to third parties.'” Kase, 707 S.E.2d at 459 (citing Doe v. ATC, 624 S.E.2d 447, 450 (S.C. 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, 624 S.E.2d at 450-51). 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, 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,

(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.

Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 12 (S.C. Ct. App. 1997) (citing Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992)).

These cases “will ordinarily be determined by the factfinder, and not as a matter of law.” Doe, 624 S.E.2d at 450 (citations omitted); see also Kase, 707 S.E.2d at 459. “Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer's conduct to have fallen below the acceptable standard.” Doe, 624 S.E.2d at 450.

Duecker began his employment with RCSD in April 2017 after he had been previously employed by the City of Columbia Police Department (“CPD”) as a patrol officer from October 2011 to August 2014. [ECF No. 38-1 at 7:9-13, 12:9-12, 13:8-11]. Plaintiff has put forth evidence concerning two incidents that occurred prior to February 1, 2019, arguing RCSD knew or should have known its employment of Duecker created an undue risk of harm to the public based on knowledge of these incidents.

First, on February 19, 2014, Duecker detained and arrested Darris Hassell (“Hassell”) for driving under the influence “despite multiple indicators of sobriety.” [See ECF No. 38 at 4, 21, see also ECF No. 12 ¶ 10]. Following dismissal of the criminal charge, Hassell filed an action alleging various torts in the Court of Common Pleas for Richland County against the City of Columbia in Hassell v. City of Columbia, C/A No. 2016-CP-40-00910. [See ECF No. 38-1 at 11:8-24, ECF No. 38-7]. After RCSD hired Duecker in April 2017, he testified in the Hassell trial between May 15, 2017 and May 18, 2017, and on May 19, 2017, a Richland County jury returned a verdict against the City of Columbia in the amount of $200,075, finding for Hassell on claims of false arrest, malicious prosecution, and negligent supervision. [ECF No. 38-7, ECF No. 35-5].³²

32 Fairbanks testified that he became aware that Duecker “got into trouble . . . [e]nough to where he was no longer employed” with CPD, referencing the Hassell incident. [ECF No. 38-5 at 19:19-20:15]. Duecker testified, however, that he left CPD to pursue a degree. [ECF No. 38-1 at 10:10].

Second, on May 13, 2018, Duecker was dispatched to the residence of Darius Gaskins (“Gaskins”) to respond to a report of domestic disturbance. Based on the body camera worn by Duecker at the time, Plaintiff argues as follows:

When Duecker arrived on the scene, he entered the residence without consent and encountered Gaskins and Gaskins' mom, dad, and sister and a child in the living room. As the Gaskins began to explain the domestic dispute to Duecker, Duecker began telling Gaskins, who was not speaking any louder than the other individuals present, to “calm down” and “bring [his] volume down.” After less than a minute of asking Gaskins to lower his voice, Duecker proceeded into the residence, without consent, warrant or probable cause, crossing the living room, in order to place Gaskins in handcuffs. Another officer on the scene (“Officer”) then assisted Duecker in placing handcuffs on Gaskins. When Officer had Gaskins by the neck and Gaskins had stopped physically resisting, Duecker deployed his taser on Gaskins.

[ECF No. 38 at 5-6 (citations omitted), see also ECF No. 38-9 (Gaskins incident body camera footage), ECF No. 38-10 (use of force report completed by Duecker stating “[f]ollowing my taser deployment, subject was assisted to the ground and handcuffed)]. In his deposition, Duecker identified the other officer on the scene as his supervisor at the time. [ECF No. 38-1 at 23:2-15].

According to Plaintiff, Gaskins was charged with public disorderly conduct pursuant to S.C. Code Ann. § 16-17-530, which provides that a person is guilty of public disorderly conduct if:

(1) found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducts himself in a disorderly or boisterous manner; (2) uses obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church ....

S.C. Code Ann. § 16-17-530 (emphasis added). The charges against Gaskins were subsequently dismissed. [ECF No. 38-1 at 19:1-15].

Plaintiff argues, like here, Duecker lacked evidence and probable cause to arrest Hassell. [ECF No. 38 at 21]. Additionally, Plaintiff argues that Duecker entered Gaskins's residence without consent, warrant, probable cause, or exigent circumstances, employed his taser when Gaskins was passive, and arrested Gaskins for public disorderly conduct when Gaskins was, at all relevant times, in his home and could not have been violating the relevant statute. [See ECF No. 38 at 21-22, see also ECF No. 44].³³ Plaintiff argues “[b]ased on the aforementioned facts, there is a genuine issue of material fact that RCSD was on actual or constructive knowledge that Duecker created an undue risk of harm to the Plaintiff and/or the public because RCSD knew or should have known that Duecker had the propensity to (1) unlawfully enter other's residence, (2) to effectuate unlawful arrests without the proper justification, (3) to exert excessive force when effectuating the unlawful arrests and (4) to continue to prosecute individuals without legally sufficient evidence.” [ECF No. 38 at 22].

33 Lott does not dispute Plaintiff's summary of the Gaskins incident or argument concerning the similarities between the Gaskins incident and the instant incident beyond stating that “there are no indications that Duecker activated his taser more than once or that his use of force was unwarranted, unreasonable, or excessive.” [See ECF No. 44 at 7-8].

The undersigned recommends dismissal of Plaintiff's claim for negligent hiring. Here, at best, the only knowledge RCSD would have had in hiring Duecker was that a lawsuit was ongoing that involved a complaint concerning Hassell's arrest for a DUI. No reasonable factfinder could find foreseeable the risk that Duecker would harm Plaintiff based on such limited information.

However, as to Plaintiff's claims for negligent supervision and retention, Plaintiff has put forth sufficient evidence that would allow a reasonable factfinder to conclude the risk was foreseeable and RCSD's conduct to have fallen below the acceptable standard. See Doe, 624 S.E.2d at 450. In so concluding, the undersigned notes that Plaintiff's burden is not heavy and that such considerations are generally the province of the jury. See, e.g., id. at 451 (“We hold that a single isolated incident of prior misconduct (of which the employer knew or should have known) may support a negligent retention claim, provided the prior misconduct has a sufficient nexus to the ultimate harm.”); id. at 450 (“Such factual considerations-especially questions related to proximate cause inherent in the concept of foreseeability-will ordinarily be determined by the factfinder, and not as a matter of law.”). Here, Duecker's actions, particularly in the Gaskins incident, of which his employer knew or should have known, have sufficient nexus to the harm Plaintiff alleges.

Lott argues there is no record evidence concerning a citizen's complaint, disciplinary infraction, internal investigation, or judicial determination that Duecker had unlawfully entered a residence or employed excessive force, as opposed to employing reasonable force. [See ECF No. 44 at 7-8]. However, Lott does not cite to, nor is the court aware of, case law requiring this type of evidence to establish prior misconduct. See, e.g., Wingate v. Byrd, C/A No. 4:13-03343-BHH-KDW, 2016 WL 8711435, at *9 (D.S.C. Aug. 19, 2016) (“Rather, courts have examined specific evidence regarding an employee's history, behaviors, or pattern of behavior when examining causes of action for negligent supervision or negligent training”), report and recommendation adopted, 211 F.Supp.3d 816 (D.S.C. 2016), opinion vacated in part on reconsideration, C/A No. 4:13-3343-BHH, 2016 WL 7012962 (D.S.C. Dec. 1, 2016); Kase, 707 S.E.2d at 459 (examining employee's poor driving record, insubordinate behavior, marital difficulties and resulting financial problems, and prior erratic behavior before holding that employer was not liable under negligent supervision and retention causes of action); Doe by Doe v. Greenville Hosp. Sys., 448 S.E.2d 564 (S.C. Ct. App. 1994) (holding hospital had prior notice of inappropriate sexual behavior on part of male employee so as to be liable for negligent hiring and supervision where the hospital was aware of allegations of inappropriate behavior even though employee denied it); see also James v. Kelly Trucking Co., 661 S.E.2d 329, 331 (S.C. 2008) (acknowledging that often pieces of evidence “such as a prior driving record, an arrest record, or other records of past mishaps or misbehavior by the employee” are offered to prove a negligent hiring, training, supervision, or entrustment claim).

Accordingly, the undersigned recommends the district judge grant Lott's motion for summary judgment as to Plaintiff's claim for negligent hiring, but deny it as to Plaintiff's claim for negligent supervision and retention.

III. Conclusion and Recommendation

For the foregoing reasons, the undersigned recommends the district judge deny Duecker's motion for summary judgment [ECF No. 34] and grant in part and deny in part Lott's motion for summary judgment [ECF No. 35], dismissing Plaintiff's claims for intentional infliction of emotional distress, defamation, malicious prosecution, and negligent hiring.

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).