Opinion
C/A No. 4:19-CV-03462-RBH -KDW
04-30-2020
KAENE BELLAMY, Plaintiff, v. HORRY COUNTY POLICE DEPARTMENT AND OFFICER CHADWICK PAGE, INDIVIDUALLY AND AS AN EMPLOYEE OF HORRY COUNTY POLICE DEPARTMENT, Defendants.
REPORT AND RECOMMENDATION
Plaintiff brought this civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights and state law causes of action. ECF No. 1-1. Specifically, Plaintiff contends that Defendant Horry County Police Department ("HCPD") caused harm through negligent supervision, negligent hiring, and negligent retention. Id. at 9-11. He complains that Defendant Chadwick Page's ("Page") conduct amounted to assault and battery. Id. at 7-8. Plaintiff also charges that both Defendants engaged in false arrest, malicious prosecution, excessive force, negligence, and gross negligence. ECF No. 1-1 at 6-8. This matter is before the court on Defendant HCPD's Motion to Dismiss, filed December 19, 2019, ECF No. 4, and Defendant Page's Motion to Dismiss, filed January 8, 2020, ECF No. 7.
As set forth in the Notice of Removal, the only federal claim asserted by Plaintiff is the third cause of action for excessive force. ECF No. 1 at 1-2.
This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2) D.S.C. Because these motions are dispositive, a Report and Recommendation ("Report") is entered for the court's review. For the reasons outlined below, the undersigned recommends that Defendant HCPD's Motion to Dismiss, ECF No. 4, be granted, and Defendant Page's Motion to Dismiss, ECF No. 7, be granted in part and denied in part.
I. Procedural Background
Plaintiff filed his Complaint, Case No. 2019-CP-26-4269, on July 8, 2019 in the Court of Common Pleas for the Fifteenth Judicial Circuit in Horry County, South Carolina. ECF No. 1-1. Defendant HCPD removed the case to this court based on federal question jurisdiction on December 12, 2019. Id. Thereafter, Defendant HCPD filed a Motion to Dismiss for Failure to State a Claim. ECF No. 4. Plaintiff responded to Defendant HCPD's motion on January 2, 2020. ECF No. 6. Defendant HCPD replied on January 9, 2020. ECF No. 8. Defendant Page filed his Motion to Dismiss for Failure to State a Claim on January 8, 2020. ECF No. 7. Plaintiff responded to Defendant Page's motion on January 22, 2020. ECF No. 9. Defendant Page replied on January 23, 2020. ECF No. 10.
II. Factual Background
In his Complaint, Plaintiff alleges that on July 16, 2017, Plaintiff's father contacted Defendant HCPD's non-emergency line and requested assistance in removing unwanted guests from their home. ECF No. 1-1 at 4. Defendant Page was dispatched to the residence. Id. When Defendant Page arrived, Plaintiff's mother let Defendant Page into the house. Id. at 5. At the time, Plaintiff was in his own bedroom inside the house, and the unwanted guests were in a spare bedroom. Id.
Plaintiff states that, once in the home, "Defendant Page aggressively pounded at the spare bedroom door telling the occupants to exit the room. Upon hearing this, Plaintiff exited his bedroom to see what was going on." ECF No. 1-1 at 5. Defendant Page, according to Plaintiff, exchanged words with Plaintiff and followed Plaintiff down a hallway to the master bathroom. Id. Plaintiff alleges that "Defendant Page told Plaintiff to be quiet and if Plaintiff refused to be quiet, he would be arrested." Id. at 5. Plaintiff's mother purportedly became involved and told Defendant Page that Plaintiff was their son and that Plaintiff was not the reason for their initial call to Defendant HCPD. Id.
Defendant Page placed Plaintiff in handcuffs. ECF No. 1-1 at 5. Plaintiff states that "while Defendant Page was removing Plaintiff from the house, Plaintiff stepped on a dog bowl and fell backward. Defendant Page said Plaintiff had assaulted a police officer." Id. Thereafter, Plaintiff had a seizure and Emergency Medical Services were called to the scene. Id. The medical team stabilized Plaintiff and transported him to Conway Hospital where he remained in handcuffs. Id. Plaintiff contends that he was arrested on or about July 16, 2017 and released from custody on or about August 2, 2017. Id. at 6. The Complaint also asserts that criminal proceedings were later dismissed in Plaintiff's favor. Id.
III. Standard of Review
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "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, 556 U.S. 662, 678 (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 v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). 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). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider "documents incorporated into the complaint by reference and matters of which a court may take judicial notice." Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). If on a motion pursuant to Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d).
IV. Analysis
A. Statute of Limitations
1. State Law Tort Claims against Defendant HCPD
Defendant HCPD argues that Plaintiff's state tort law claims contained in counts (1) false arrest/imprisonment, (6) negligence, (7) gross negligence, (8) negligent supervision, (9) negligent hiring, and (10) negligent retention are barred as a matter of law by the statute of limitations and should be dismissed under Rule 12(b)(6). ECF No. 4. Plaintiff responds that the bar of a claim based on the statute of limitations is an affirmative defense and may not be asserted in a motion to dismiss and further argues for an extension to the service requirements. ECF No. 6 at 3. Defendant HCPD replies that courts routinely grant motions to dismiss based on the statute of limitations and have done so in cases procedurally on point with this case. ECF No. 8. HCPD argues that because Plaintiff filed this case in state court the federal rules are not applicable to his request for an extension. Id. at 4.
Defendant HCPD does not extend the statute of limitations argument to Plaintiff's allegation of malicious prosecution contained in count (2) because the "accrual date for this claim is not apparent on the face of the Complaint." ECF No. 4 at 4, n. 1.
"When a defendant raises an affirmative defense, like a statute of limitations, on a Rule 12(b)(6) motion to dismiss, all facts necessary for the [c]ourt to draw a conclusion that the claims are barred must appear on the face of the Complaint." Lowcountry Block LLC v. Cincinnati Ins. Companies, No. CV 9:17-1147-RMG, 2017 WL 3278878, at *2 (D.S.C. Aug. 1, 2017) (citing Healey v. Abadie, 143 F. Supp. 3d 397, 402-03 (E.D. Va. 2015)). "Most courts allow such defenses to be raised in a motion to dismiss under Rule 12(b) 'when there is no disputed issue of fact raised by an affirmative defense, or the facts are completely disclosed on the face of the pleadings, and realistically nothing further can be developed by pretrial discovery or a trial on the issue raised by the defense.'" Spence v. Spence, 628 S.E.2d 869, 878 (S.C. 2006) (citing 5 Wright and Miller, Federal Practice and Procedure Civil 3d, § 1277 (2004)).
This case was filed in the Horry County Court of Common Pleas on July 8, 2019 and removed to federal court based on federal question jurisdiction on December 12, 2019. ECF No. 1-1. Therefore, South Carolina law should be applied and it governs the commencement and proper service of this action. Under Rule 3(a) of the South Carolina Rules of Civil Procedure ("SCRCP"), a civil action commences when the summons and complaint are filed with the clerk of court if:
(1) The summons and complaint are served within the statute of limitations in any manner prescribed by law; orRule 3(a), SCRCP. In Mims ex rel. Mims v. Babcock Ctr., Inc., 732 S.E.2d 395, 398 (S.C. 2012), the South Carolina Supreme Court discussed the legislative intent behind the amendment of SCRCP Rule 3 in 2004.
(2) if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty days after filing.
In amending Rule 3(a), SCRCP, this Court clearly stated the 120-day period begins running from the filing of the complaint, not after the end of the statute of limitations period as argued by [the plaintiff]. The 120-day period only has relevance if service is accomplished outside of the statute of limitations. When service occurs outside of the statute of limitations it must occur within 120 days of filing the complaint.Id.
The South Carolina Tort Claims Act ("SCTCA") "governs all tort claims against governmental entities and is the exclusive civil remedy available in an action against a governmental entity or its employees." Flateau v. Harrelson, 584 S.E.2d 413, 416 (S.C. Ct. App. 2003). Pursuant to S.C. Code Ann. § 15-78-110, any action brought under the SCTCA is barred unless the action is commenced within two years after the date the loss was or should have been discovered.
The incident giving rise to this case occurred on July 16, 2017, and Plaintiff filed this action in the Horry County Court of Common Pleas within the statute of limitations on July 8, 2019. ECF Nos. 1, 1-1. Applying SCRCP 3(a)(2), Plaintiff was required to serve Defendants on or before November 5, 2019. The Acceptance of Service attached to the Complaint is dated November 12, 2019. ECF No.1-1 at 16. From the face of the Complaint, it is apparent that Plaintiff did not serve HCPD with the Complaint within 120 days after filing it. Therefore, the undersigned recommends granting Defendant HCPD's motion to dismiss the state law claims of false arrest/imprisonment, negligence, gross negligence, negligent supervision, negligent hiring, and negligent retention against it as time barred. Lowcountry Block LLC v. Cincinnati Ins. Companies, 2017 WL 3278878, at *3.
As an exhibit to his response in opposition to HCPD's Motion to Dismiss, Plaintiff provides a Certified Mail Return Receipt that indicates an execution date of November 7, 2019. ECF No. 6-2. Even if the court were to consider this date, it still falls outside of the deadline for proper service.
2. State Law Tort Claims against Defendant Page
Defendant Page also asserts that Plaintiff's state law tort causes of action against him contained in counts (1) false arrest/imprisonment, (2) malicious prosecution, (4) assault, (5) battery, (6) negligence, and (7) gross negligence are barred by the statute of limitations and should be dismissed. ECF No. 7 at 3-4. In response, Plaintiff again argues that affirmative defenses, such as barring a claim based on the statute of limitations, may not be asserted in a motion to dismiss under Rule 12(b)(6). ECF No. 9 at 3. Plaintiff further contends that even if the bar of the statute of limitations could be considered at this stage of litigation, under Rule 4(m) of the Federal Rules of Civil Procedure ("FRCP") the time limit to effect service should be extended for good cause. Id. at 5.
As discussed in the preceding section of this Report, an affirmative defense regarding statute of limitations may be brought in a Rule 12(b)(6) motion when the facts are clear from the face of the pleadings. Furthermore, South Carolina law controls the court's analysis of "commencement" of Plaintiff's claims under the SCTCA. As noted above, service on Defendants should have been accomplished no later than November 5, 2019. Plaintiff admits that Defendant Page was not served with the Summons and Complaint until December 27, 2019. ECF No. 9 at 4. However, Plaintiff contends that, based on an October 31, 2019 phone discussion with counsel for Defendant HCPD, he believed that the Horry County Attorney would accept service for both Defendant HCPD and Defendant Page and therefore "attempts to locate Defendant Page ceased." Id. Plaintiff contends that he was informed on November 13, 2019 that the Horry County Attorney was unable to accept service on behalf of Defendant Page as previously agreed. Id. Plaintiff explains he hired a process server and, after multiple attempts, was able to serve Defendant Page on December 27, 2019. Id. However, even considering Plaintiff's explanation as to why Defendant Page was not served until December 27, 2019, the fact remains that Defendant HCPD was served after the 120-day deadline under SCRCP 3(a)(2). Even if Plaintiff believed that Defendant Page was served the same time as HCPD the service would still be untimely.
Plaintiff cannot rely on FRCP 4(m) to excuse his untimeliness because this case originated in state court; therefore, the service issue is governed by the South Carolina procedural rules, not the federal rules. Burris v. CSX Transportation Co., Inc., No. 4:17-CV-2681-RBH-TER, 2018 WL 1701979, at *2 (D.S.C. Mar. 14, 2018), report and recommendation adopted, No. 417CV02681- RBH-TER, 2018 WL 1697298 (D.S.C. Apr. 6, 2018). "The removal of a case to federal court cannot breathe jurisprudential life in federal court to a case legally dead in state court." Id. (quoting Rice v. Alpha Sec., Inc., 556 F. App'x 257, 260 (4th Cir. 2014)). "Because the court must apply South Carolina Rule 3 to determine when the plaintiff commenced this action, extending the time to serve the defendant pursuant to Federal Rule 4(m) affords no relief to the plaintiff." Brown v. Marriot Int'l, Inc., No. CIV.A. 2:04-2378-CWH, 2007 WL 1840231, at *2, n. 3 (D.S.C. June 22, 2007).
Unlike Defendant HCPD, Defendant Page includes the claim for malicious prosecution in his argument for dismissal based on statute of limitations. Defendant Page also makes a separate argument for dismissal of the malicious prosecution claim. As previously discussed, claims brought pursuant to the SCTCA are barred unless the action is commenced within two years after the date the loss was or should have been discovered. "[O]ne element necessary to maintain an action for malicious prosecution is that the judicial proceedings be terminated in the plaintiff's favor. Thus, the cause of action does not accrue, and the statute of limitations does not begin to run, until after the proceedings are terminated in the plaintiff's favor." Loadholt v. Cribb, No. 2004-UP-238, 2004 WL 6251537, at *3 (S.C. Ct. App. Apr. 12, 2004). In his Complaint Plaintiff asserts that the criminal proceedings were dismissed in his favor, but he does not provide a date for the dismissal. Because the undersigned is unable to determine from the face of the pleadings when this cause of action accrued, Defendant Page's motion to dismiss the claim based on statute of limitations should be denied. The undersigned recommends a finding that Plaintiff's state law claim against Defendant Page malicious prosecution contained in count 2 is not barred by the statute of limitations. However, the claims for false arrest/imprisonment, assault, battery, negligence, and gross negligence contained in counts 1, 4, 5, 6, and 7 are barred by the statute of limitations and should be dismissed.
B. Malicious Prosecution
Both Defendants contend that they are entitled to dismissal of Plaintiff's claim for malicious prosecution because they are immune from suit relating to "the institution or prosecution of judicial proceedings" under the SCTCA, S.C. Code Ann. § 15-78-60 (23). ECF No. 4 at 6; ECF No. 7 at 6. Plaintiff's response in opposition to this argument is the same for both Defendants. Plaintiff argues that it is premature to dismiss his claim for malicious prosecution because "[u]pon further discovery of this matter, Plaintiff's claims could be found [to] fall outside the protections of the South Carolina Tort Claims Act and under the exceptions provided" in S.C. Code Ann. § 15-78-70(b). ECF No. 6 at 7; ECF No. 9 at 7. Defendant HCPD replies that Section 15-78-70(b) is limited to government employees and does not apply to governmental entities. ECF No. 8 at 5. Defendant Page argues that he is immune from liability because "Plaintiff admits that the incidents occurred while this Defendant was acting within the scope of his employment." ECF No. 10 at 4. Defendant Page also maintains that actual fraud, malice, intent to harm or a crime of moral turpitude are not alleged in the Complaint. Id.
The SCTCA is the "exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employee's official duty." S.C. Code Ann. § 15-78-200 (2005). Section 15-78-60 carves out certain exceptions to governmental liability including that a "governmental entity is not liable for a loss resulting from . . . institution or prosecution of any judicial or administrative proceeding." S.C. Code Ann. § 15-78-60(23). The SCTCA grants immunity to employees of South Carolina and its political subdivisions "while acting within the scope of official duty" except as expressly waived. S.C. Code Ann. § 15-78- 20(b); see also id. § 15-78-70(a) (stating an "employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except as expressly provided in subsection (b)"); id.§ 15-78-70(b) (stating employees are not entitled to immunity "if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.").
Defendants cite McCoy v. City of Columbia, 929 F. Supp. 2d 541 (D.S.C. 2013), as precedent for dismissal of a malicious prosecution claim under the SCTCA's immunity relating to the institution or prosecution of a judicial proceeding. ECF No. 4 at 6, ECF No. 8 at 5. In McCoy, the city defendant and officer defendants each moved for summary judgment on plaintiff's state law claims for malicious prosecution based on various defenses under the SCTCA. McCoy, 929 F. Supp. 2d at 564.
The court explained that "[u]nder the SCTCA, the general rule is that the employer, not the employee is named as the party defendant where the employee is acting within the scope of his or her employment." Id. at 564-565. McCoy alleged that the officer defendants were acting within the scope of their employment and the officer defendants argued that they were immune from suit and that the city was the only proper defendant under the SCTCA. Id. at 565. The court allowed that McCoy was pursuing alternative theories of liability and surmised the following:
In other words, to hold the City liable, McCoy must show that the Officer Defendants acted within the scope of their employment, and normally this would mean that the Officer Defendants are immune from liability. According to McCoy, though, he can simultaneously argue that the Officer Defendants are liable because their conduct was outside the scope of their employment or constituted actual fraud, actual malice, or intent to harm, any of which would mean that the Officer Defendants are not entitled to immunity under the SCTCA.Id. After considering evidence including an incident report, video of the arrest, and deposition testimony, the court found that McCoy had "not shown a genuine issue as to whether the Officer Defendants' conduct meets the exception in the SCTCA allowing employee liability." Id. at 566. Accordingly, the officer defendants were entitled to immunity under § 15-78-70(a)-(b) and granted summary judgment pursuant to Rule 56. Id.
Additionally, in McCoy, the city defendant asserted that it was immune from liability for malicious prosecution under the SCTCA's immunity relating to "the institution or prosecution of a judicial proceeding." S.C. Code Ann. § 15-78-60(23). The court granted the city defendant's "motion for summary judgment on this issue because [Plaintiff's] cause of action for malicious prosecution plainly falls within this express exception." McCoy, 929 F. Supp. 2d at 567, n.10.
The undersigned recommends that employing the McCoy analysis is appropriate in this case even though this case is in a different procedural posture. As to Defendant HCPD, as in McCoy, it is immune from liability pursuant to S.C. Code Ann. § 15-78-60(23). However, the allegation against Defendant Page requires a different analysis. Like McCoy, here Plaintiff admits "[t]here is no dispute that the incidents which occurred, occurred during the scope of Defendant Page's employment." ECF Nos. 6 and 9 at 7. Plaintiff argues that further discovery may show that Defendant Page's actions constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. Id. If this were proven, Defendant Page would not be immune from suit under the SCTCA. To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but must "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Ultimately, the complaint is required to contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
"To establish a claim for malicious prosecution, a plaintiff must prove the following elements by the greater weight of the evidence: (1) the institution or continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3) termination of the proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) lack of probable cause; and (6) resulting injury or damage." Law v. S.C. Dep't of Corr., 629 S.E.2d 642, 648 (2006). Plaintiff's Complaint alleges "Defendants instituted proceedings with malice and without probable cause." ECF No. 1-1 at 6. Based on these allegations the undersigned recommends denying Defendant Page's Motion to Dismiss the cause of action for malicious prosecution and permit Plaintiff to pursue discovery on this issue. The undersigned recommends Defendant HCPD's motion to dismiss this cause of action be granted based on immunity.
C. Excessive Force
Although Plaintiff's cause of action for excessive force is directed at both Defendants, only HCPD argues that this claim should be dismissed against it. Defendant HCPD argues that Plaintiff's third cause of action, a federal claim for excessive force asserted under 42 U.S.C. §1983, fails as a matter of law because it is not a "person acting under color of state law" and "Section 1983 will not support a claim based on a respondeat superior theory of liability." ECF No. 4 at 7. HCPD argues that in support of the excessive force claim Plaintiff alleges only actions made by Defendant Page. Id. at 7-8. HCPD contends that "Defendant Page's employment is insufficient as a matter of law to support an excessive force claim against HCPD based on Page's alleged actions." Id. at 8. In response Plaintiff, citing to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978), contends that "[m]unicipalities and other local governing bodies are included among those 'persons' who may be sued under §1983." ECF No. 6 at 8. Plaintiff recognizes that a county or city cannot be liable pursuant to respondeat superior principles, but Plaintiff contends that if he can identify a municipal policy or custom, a valid action can be brought against Defendant HCPD for constitutional deprivations. Id. at 9. Defendant HCPD replies that Plaintiff's argument about "customs" fails because this allegation is not contained in Plaintiff's Complaint and has not been adequately pleaded. ECF No. 8 at 6-7.
As an initial matter, "to state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). "It is well settled that only 'persons' may act under color of state law, so a defendant in a § 1983 action must qualify as a 'person.'" Kershaw v. City of Spartanburg Police Dept., C/A No. 7:18-1079-BHH-KFM, 2019 WL 3215645, *2 (D.S.C. June 8, 2019); Spellman v. City of Columbia Police Dep't, C/A No. 9:12-2376-TMC-BM, 2012 WL 5409626, at *2 (D.S.C. Sept. 28, 2012) report and recommendation adopted, C/A No. 9:12-2376-TMC, 2012 WL 5408023 (D.S.C. Nov. 6, 2012) (holding "The City of Columbia Police Department is a group of officers in a building and, as such, is not subject to suit under § 1983. Buildings and correctional institutions, as well as sheriff's departments and police departments, usually are not considered legal entities subject to suit."). Defendant HCPD is not a person under section 1983, and therefore is not subject to suit.
A municipality or other local government entity may only be held liable under 42 U.S.C. § 1983 "where the constitutionally offensive actions of [] employees are taken in furtherance of some municipal 'policy or custom.'" See Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citing Monell, 436 U.S. at 694; see also Wolf v. Fauquier Cnty. Bd. of Supervisors, 555 F.3d 311, 321 (4th Cir. 2009) ("A county may be found liable under 42 U.S.C. § 1983 [but] only 'when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts injury.'")(citing Monell, 436 U.S. at 694). Further, the doctrine of respondeat superior is generally inapplicable to section 1983 suits, such that an employer or supervisor is not liable for the acts of employees, absent official policy or custom resulting in an illegal action. Monell, 436 U.S. at 694-95.
Defendant HCPD contends that "Plaintiff's argument about 'customs' simply is not the basis for Plaintiff's claim of excessive force." ECF No. 8 at 6. Although Plaintiff asserts in his Memorandum of Law in Opposition to Defendant HCPD's Motion to Dismiss that the "action of detaining a person under these circumstances developed as 'customs' of the Horry County Police Department," ECF No. 6 at 9, there is no mention of informal or formal customs in the fact section of Plaintiff's Complaint or in the cause of action for excessive force, ECF No. 1-1. See Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) ("While a plaintiff is not charged with pleading facts sufficient to prove [his] case, as an evidentiary matter, in [his] complaint, a plaintiff is required to allege facts that support a claim for relief."); Iqbal, 556 U.S. at 676 (stating that a Plaintiff must plead facts demonstrating that a defendant's own, individual actions violated the Constitution). Plaintiff's third cause of action states:
32. The acts and omissions of Defendant Page, in handcuffing Plaintiff in a manner that caused the parties to struggle and result in physical harm to Plaintiff constitutes the use of unreasonable and excessive force.ECF No. 1-1 at 7 (emphasis added). Here, Plaintiff has not pled any allegations against HCPD for excessive force and has cited to no customs or policies that would subject HCPD to liability. El v. Wean, No. 2:16-CV-01152-DCN, 2017 WL 3910864, at *3 (D.S.C. Sept. 7, 2017)("Without any facts pled about what defendants did during the course of the arrest to constitute excessive force, the court must grant defendants' motion to dismiss on the excessive force claim."). Accordingly, the undersigned recommends that Plaintiff's § 1983 excessive force claim against Defendant HCPD be dismissed.
33. As a direct and proximate cause of the unreasonable and excessive force Plaintiff suffered physical harm.
34. Plaintiff is informed and believes he is entitled to judgment against Defendant Page for actual and punitive damages in an amount as may be set and determined by the trier of facts in this matter.
D. Punitive damages
Defendant HCPD argues that Plaintiff's claims for punitive damages pursuant to his state law tort claims are clearly barred by the SCTCA and therefore should be dismissed as a matter of law. ECF No. 4 at 8. Plaintiff agrees that punitive damages are excluded under the SCTCA, but argues that "some of the claims asserted are eligible to fall outside of the South Carolina Tort Claims Act" and, as to those potential claims, the prayer for punitive damages is appropriate. ECF No. 6 at 9.
The SCTCA bars any recovery for punitive damages. S.C. Code Ann. §15-78-120(b). For the reasons noted above, the undersigned recommends that all state law causes of action brought under the SCTCA against Defendant HCPD should be dismissed and recommends that the only federal cause of action should also be dismissed against HCPD. Therefore, the issue of punitive damages, as related to Defendant HCPD, is moot and the undersigned recommends that Defendant's Motion be granted as the SCTCA bars recovery of punitive damages.
E. Proper Parties
Defendant Page moves this court to dismiss him as a party to Plaintiff's state law causes of action. ECF No. 7 at 7. Page cites S.C. Code Ann. §15-78-70(c) and argues that "when bringing an action against a governmental entity under the Tort Claims Act, such as in this case, the Plaintiff shall name as a Party Defendant only the agency of the political subdivision for which the employee was acting." Id. Plaintiff responds that Defendant Page is a proper party because "further investigation could find that the claims asserted do not fall under the SCTCA." ECF No. 9 at 8. Defendant Page replies that "although Plaintiff alleges that an argument can be made that the incidents at issue constituted actual fraud, malice, intent to harm or a crime of moral turpitude, that is not what is alleged in the Complaint." ECF No. 10 at 5.
As discussed previously, the undersigned recommends that Plaintiff's state law cause of action for malicious prosecution against Defendant Page be allowed to proceed. Furthermore, Defendant Page has not moved to dismiss Plaintiff's claim for excessive force. Therefore, Defendant Page remains a proper party to this action.
V. Conclusion
Based on the foregoing, the undersigned recommends granting Defendant HCPD's Motion to Dismiss, ECF No. 4, and granting in part and denying in part Defendant Page's Motion to Dismiss, ECF No. 7. If the district judge adopts this Report, the case will proceed against Defendant Page for malicious prosecution and excessive force.
IT IS SO RECOMMENDED. April 30, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge