Opinion
C. A. 4:23-CV-00220-JD-KDW
07-30-2024
GREGORY MCDOWELL, Plaintiff, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY and BRENDAN DELANEY, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Gregory McDowell (“Plaintiff”) initially filed this action pursuant to 42 U.S.C. § 1983 in the Horry County Court of Common Pleas. Plaintiff's allegations against Defendants stem from a traffic stop initiated by Defendant Brendan Delaney and the resulting arrest that occurred on March 11, 2021. On January 11, 2023, this case was removed to federal court. ECF No. 1. On February 23, 2024, Defendant Delaney filed a Motion for Summary Judgment. ECF No. 44. Plaintiff filed his Response on March 8, 2024, ECF No. 52, and Defendant filed a Reply, ECF No. 60. Defendant's former employer, the South Carolina Department of Public Safety (“SCDPS”), also filed a Motion for Summary Judgment on February 23, 2024. ECF No. 46. Plaintiff filed a Response, ECF No. 53, and Defendant SCDPS filed a Reply, ECF No. 61. This matter is now ripe for review.
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 Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because Defendants' Motions are dispositive, the undersigned enters this Report for the district judge's consideration.
I. Factual Background
The following facts are derived from the pleadings in this case and are considered in a light most favorable to Plaintiff, the non-moving party. Scott v. Harris, 550 U.S. 372, 380, (2007). As support for his position, Plaintiff has provided excerpts from his deposition; the applicable dash camera video from the incident in question; a SCDPS Public Safety Report (the memorandum); a letter from the State of South Carolina, Office of the Solicitor, Fifteenth Judicial Circuit, dated May 12, 2021; excerpts from Defendant Delaney's deposition; and emails from the Solicitor's Office to both Responses to the Motions. See ECF Nos. 52 and 53. In support of his Motion, Defendant Delaney has provided excerpts from his own deposition; the Incident Call Notes from the incident in question; the same dash camera footage provided by Plaintiff; excerpts from Plaintiff's deposition; and video footage from the Horry County Detention Center. See ECF No. 44. In support of its Motion, Defendant SCDPS has provided the SCPDS Case Report, dated March 11, 2021; excerpts from Plaintiff's deposition; the Incident Call Notes; excerpts from Defendant Delaney's deposition; Horry County Detention Center jail records; Defendant Delaney's resignation letter, dated April 3, 2021; and two letters from the State of South Carolina, Office of the Solicitor, Fifteenth Judicial Circuit, dated May 11, 2021 and May 12, 2021 respectively. See ECF No. 46.
On March 11, 2021, Plaintiff was driving to work at approximately 6:30 a.m. when Defendant Delaneybegan following Plaintiff on Highway 22 in Conway, South Carolina. ECF No. 1-1 at 4; see SCDPS Case Report at 6, attached as Exhibit 1 to Def. SCDPS's Motion, ECF No. 46. According to Plaintiff, at approximately 4:00 a.m., he was directed by his employer, Safeshield Traffic Control Solutions (“Safeshield”), to respond to a call for a public roadway repair on Highway 22. See Pl.'s Br. at 2, ECF No. 52; see also Deposition of Gregory McDowell, 101:13-21, attached as Exhibit A to Pl.'s Br. ECF No. 52-1. Plaintiff was apparently instructed by Safeshield to “hurry up and get down there.” McDowell Dep. 100:1618. Plaintiff drove quickly with his flashers on to the intended location. McDowell Dep. 100: 18-19. According to Plaintiff, when he has his automobile lights on, he is permitted to speed at approximately 5-10 miles over the posted speed limit to respond to a work-related roadway emergency. McDowell Dep. 115:3-22.When Plaintiff arrived at the scene, he intended to put up his first sign and noticed Defendant Delaney behind him. McDowell Dep. 100: 19-22. It was Plaintiff's belief that Defendant Delaney was behind him to greet him “like they always do” because they were working together. McDowell Dep. 100: 23-25; 101:1. Approximately the same time, Defendant Delaney was dispatched to a BOLO (“be on the lookout” call). According to Defendant Delaney and Defendant SCDPS, that morning a concerned citizen called in a BOLO for a white construction vehicle with amber flashing lights on top. See Deposition of Brendan Thomas Delaney 19:1-5, attached as Exhibit E to Pl.'s Br., ECF No. 52-5. The concerned citizen further reported that the truck ran a stop sign, was almost hit by a semi-truck, and then continued travelling onto Highway 22. Delaney Dep. 19:5-8; see also Incident Call Notes at 5, attached as Exhibit 2 to Def.'s Motion at ECF No. 44-2 and attached as Exhibit 3 to Def. SCDPS's Motion at ECF No. 46-3. Defendant Delaney saw a vehicle matching the description from the call and began to follow it. See SCDPS Case Report attached as Exhibit 1 to Def. SCDPS's Motion, ECF No. 46-1; Delaney Dep. 19:12-20. Defendant Delaney's incident report indicates that the white truck failed to maintain its lane and struck the fog line numerous times. See Exhibit 1 at 6. Defendant Delaney also observed the vehicle reaching a maximum speed of 83 mph. See Affidavit of Brendan Delaney, ¶ 6, attached as Exhibit 1 to Def.'s Reply, ECF No. 60-1.
On March 11, 2021, Defendant Delaney was an agent or employee of Defendant SCDPS. ECF No. 1-1 at 2; see also Defendant Delaney's Br. at 2, ECF No. 44.
In Plaintiff's deposition, while Plaintiff explained his belief that he is permitted to drive five to ten miles above the speed limit, he does not specifically admit to speeding. McDowell Dep. 115:1-25. He further states that, at least as he understood it, the owner of the company “has to let someone know” and that Plaintiff was told that morning that “everybody knew I was on my way.” McDowell Dep. 115:18-22. Plaintiff also testified that if he had driven the speed limit, his drive from his home to the location of the traffic stop would have taken one hour and ten minutes. McDowell Dep. 114:20-23, attached as Exhibit 4 to Def.'s Br, at ECF No. 44. On the day in question, Plaintiff testified he reached the location of the traffic stop in approximately one hour. McDowell Dep. 112:2-4, attached as Exhibit 4 to Def.'s Br. at ECF No. 44. Defendant Delaney argues this is evidence of Plaintiff's admission that he was speeding.
According to Plaintiff, Defendant Delaney did not have his blue lights activated when he exited his vehicle at the scene. McDowell Dep. 126:2-3. Defendant Delaney apparently believed he had turned on his blue lights, but he had mistakenly hit the wrong button and only activated his rear facing blue lights. Delaney Dep. 25: 16-22. Upon exiting the vehicle, Plaintiff said Defendant Delaney was at the door of his cruiser and had a gun in Plaintiff's face. McDowell Dep. 126:7-8; 129:13-22. Plaintiff states that in response to asking Defendant Delaney what was going on, Defendant Delaney informed him that he was driving drunk and was under the influence. McDowell Dep. 126:12-13. Defendant Delaney further stated that “he had a call that someone told him [Plaintiff] was drinking or something.” McDowell Dep. 126:14-15. Plaintiff also recalls Defendant Delaney telling him he ran a stop sign on 410 at 701, but Plaintiff states he did not run the stop sign. McDowell Dep. 215:14-17. Plaintiff further recalls Defendant Delaney telling him he almost got into an accident with another vehicle, but Plaintiff states he did not almost get into a wreck. McDowell Dep. 215:21-25. Notably, Delaney does not tell Plaintiff he was speeding.
In Plaintiff's Complaint, he alleges Defendant Delaney initiated his lights when he pulled behind Plaintiff's vehicle. ECF No. 1-1 at 4.
Plaintiff recalls explaining to Defendant Delaney that he had taken his “normal medication” that morning but nothing that would impair him. McDowell Dep. 216:2-12.
During his deposition, Defendant Delaney explained that he personally observed Plaintiff unable to maintain his lane by going over a fog line to the left and going over the center line, and that Plaintiff was “fluctuating speeds.” Delaney Dep. 20:5-10. Defendant Delaney did not recall the speed discrepancy he observed. Delaney Dep. 20:11-14. Additionally, Defendant Delaney did not observe the information that was provided to him in the BOLO. Delaney Dep. 28:5-15. Defendant Delaney also observed that he believed Plaintiff to be lethargic, having slurred speech, and having dilated eyes. Delaney Dep. 36:4-8. Plaintiff asserts that his speech is impeded by the fact that he does not have teeth. Pl.'s Br. at 23, ECF No. 53.
Defendant Delaney instructed Plaintiff to perform several field sobriety tests, including the pen test, the heel/toe test, and the one-leg hop. McDowell Dep. 131:5-6; 132:12-18. According to Plaintiff, he passed the field sobriety tests, but Defendant Delaney told Plaintiff he still believed he was under the influence and had probable cause to search Plaintiff's work truck. McDowell Dep. 134:11-21. Plaintiff testified that Defendant Delaney searched his work truck without his consent. McDowell Dep. 134:21-25; 135:1-4.Upon searching the truck, Defendant Delaney found several of Plaintiff's medications, as well as Plaintiff's son's medication, and Prilosec. McDowell Dep. 135:16-23. Plaintiff indicated the Prilosec, which he obtained from his stepfather, was for his stomach. McDowell Dep. 136:9-21. Prior to searching the car, Defendant Delaney placed Plaintiff in handcuffs, and upon completion of the search of the truck, Defendant Delaney put Plaintiff in the front seat of his car and told him he was going to charge Plaintiff. McDowell Dep. 137:2-25. Plaintiff states Defendant Delaney did not read him his “rights.” McDowell Dep. 137:20. According to Defendant Delaney, when he administered the field sobriety tests to Plaintiff, he observed a “lack of smooth pursuit” of Plaintiff's eyes during the horizontal gaze nystagmus test. Delaney Dep. 60:23-25; 61-23. Defendant Delaney observed Plaintiff miss his heel to toe and move his arms to maintain balance during the walk and turn test. Delaney Dep. 66:25; 67:20. Defendant Delaney argues that in reviewing the dash camera video footage, Plaintiff is seen swaying back and forth on multiple occasions during the walk and turn test. See Defs. Br. at 3, ECF No. 44. Defendant Delaney also observed Plaintiff put his foot lower than the required position during the one leg stand test. Delaney Dep. 69:18-23. Defendant Delaney points to the dash camera video as evidence that Plaintiff failed to keep his hands at his sides during this test, as well. See Defs. Br. at 3, ECF No. 44. Based on his observation, Defendant Delaney gave Plaintiff a ticket for driving under the influence in violation of S.C. Code Ann. § 56-05-2930(A). In addition to this charge, Plaintiff was eventually charged with possession with intent to distribute narcotics. ECF No. 1-1 at 5-6; see also Def.'s Br. at 4; ECF No. 44.
Within the video, another individual is seen near Plaintiff's work truck at this time. Upon information and belief, this individual was another employee of Safeshield, however Plaintiff did not recall his name. According to Plaintiff, this other individual told Defendant Delaney he was not allowed to search the work truck. McDowell Dep. 135:1-11.
Fortunately for the court, the exchange between Plaintiff and Defendant Delaney appears in a dash camera video provided to the court by the parties. See Exhibit B attached to Pl.'s Br. at ECF Nos. 52-2; 53-2; see Exhibit 3 attached to Def.'s Motion at ECF No. 44-3. Defendant SCDPS heavily relies upon this video footage in its Motion. Where appropriate, the court will consider whether the video supports clearly supports either party's position; however, suffice it to say, the video captures Defendant Delaney's pulling behind Plaintiff on the side of the road, the subsequent interaction and arrest, and their conversation once Plaintiff was placed in the patrol car. Of particular importance in this case is the administration of the field sobriety tests, as the question of whether Defendant Delaney believed Plaintiff to be under the influence weighed heavily on the decision to arrest Plaintiff.
The court relies on the copy provided by Defendant Delaney via USB flash drive, as it was the only software the court was able to open and view the footage.
Once they left the roadside, Defendant Delaney took Plaintiff to a breath alcohol testing (“BAT”) testing facility. McDowell Dep. 150. The record from the BAT testing facility, drafted by Defendant Delaney, reflects that Plaintiff “refused” urine testing. See SCDPS Case Report at 7, attached as Exhibit 1 to Def. SCDPS's Motion, ECF No. 46-1. However, according to Plaintiff he never refused to take this test. McDowell Dep. 150-51. Plaintiff ultimately registered a .00% on a breath test. See Exhibit 1; See also SCDPS Report on McDowell Arrest at 3, attached as Exhibit C to Pl.'s Br., ECF No. 52-3. The parties have provided the video footage from the Horry County Detention Center (J. Reuben Long) of the exchange between Plaintiff and Defendant Delaney. See Breathalyzer Room Video, attached as Exhibit 5 to Def.'s Motion at ECF No. 44-5. Within this video, immediately after Plaintiff provides a breathalyzer sample, Defendant Delaney reviews the results on the screen, and then tells Plaintiff he will have to provide a urine sample. See Breathalyzer Room Video at 27:11-27:25. Defendant Delaney asks him, “do you want to give me a urine sample or not?” See Breathalyzer Room Video at 27:38-40. Plaintiff replies. “I don't care, you do what you want.” See Breathalyzer Room Video at 27:40-43. The video ends after this exchange.
Plaintiff was eventually booked into the Horry County Detention Center on both a DUI charge and a drug charge and released the same day. See Horry County Jail Records, attached as Exhibit 5 to Def. SCDPS's Motion, ECF No. 46-5. That same day, Defendant Delaney presented an affidavit for an arrest warrant for a drug manufacturing/possession charge with intent to distribute in violation of S.C. Code Ann. § 44-53-0370(b)(2) to Horry County Magistrate Judge Aaron Butler. See Exhibit 1 at 9, attached to Def. SCDPS's Motion, ECF No. 46-1. Defendant Delaney's affidavit was based upon his belief that he had found narcotics in Plaintiff's truck. See Exhibit 1 at 9. Magistrate Judge Butler found probable cause existed and issued the arrest warrant, which was served on Plaintiff on March 11, 2021. Id.
The following day, Plaintiff went to the Conway Patrol Office to meet with the head of the post. McDowell Dep. 159:1-14. Plaintiff also went to a medical facility the day of his release to obtain a urine test, and the test results indicated Plaintiff was clean of any controlled substances or narcotics. See SCDPS Report, Exhibit C.While at the Conway Patrol Office, Plaintiff says that the head of that post watched the dash camera video and told him his charges were dismissed, that they were going to fire the officer, and they were sorry for what happened. McDowell Dep. 160:19-25; 161:1-18. In a letter dated May 12, 2021, Senior Assistant Solicitor Joshua D. Holford sent a letter to Defendant Delaney advising him that the charges against Plaintiff were dismissed. See Solicitor's Office Dismissal Letter, attached as Exhibit D to Pl.'s Br. at ECF No. 52-4.
The SCDPS Report is a memorandum from First Sergeant D.J. Utley to Captain G.M. Caulder, dated April 5, 2021. Within this Report, Sgt. Utley states that on March 12, 2021, Plaintiff came to the Conway Patrol Office in reference to a complaint about a trooper. After speaking with Sgt. Utley, Plaintiff left his office and returned “a short time later” with the results of a drug test that Plaintiff paid for by a medical professional, and the test proved Plaintiff did not have narcotics in his system. See Exhibit C at 1; ECF No. 52-3.
The SCDPS Report, provided by Plaintiff, reveals that First Sergeant D.J. Utley (“Sgt. Utley”) provided a memorandum to Captain G.M. Caulder, dated April 5, 2021. Within this Report, Sgt. Utley states that Plaintiff came to the Conway Patrol Office on March 12, 2021 and reported that he had been arrested for driving under the influence by Defendant Delaney on March 11, 2021. See Exhibit C at 1, attached to Pl.'s Br at ECF No. 52-3. Plaintiff reported that his employer, Safeshield, is contracted to provide traffic control for road maintenance and paving through the South Carolina Department of Transportation. Plaintiff reported his interaction with Defendant Delaney from the previous morning. See Exhibit C at 1. On March 12, 2021, Sgt. Utley searched the CAD number to review the call that had originated the morning of Plaintiff's arrest. Exhibit C at 2. According to the memo, Sgt. Utley discovered the call originated from a concerned citizen who reported that a “white work truck with flashing light disregarded a stop sign at the intersection of S.C. 410 and U.S. 701 and was almost struck by a commercial vehicle.” Exhibit C at 2. Notably, the notes from the CAD report reveal that the caller never stated the driver of the white Chevy Silverado was speeding or that the driver appeared under the influence of anything. See SCDPS CAD Notes, attached as Exhibit 3 to Defs.' Motion, ECF No. 46-3.
Sgt. Utley also noted that the pills logged in as evidence related to this case were consistent with the color and imprint of a medication prescribed for indigestion (Omeprazole). Exhibit C at 2. Sgt. Utley then met with Defendant Delaney on March 15, 2021. Exhibit C at 3. Sgt. Utley asked Defendant Delaney to perform standardized sobriety tests, and Sgt. Utley determined that while Defendant Delaney was able to perform the tests properly, he was unable to tell Sgt. Utley “all of the clues on each test” and “the amount of clues” to look for corresponding to each test. Exhibit C at 3. When they reviewed the dash camera video of Plaintiff's arrest together, Sgt. Utley noted that Defendant Delaney did not activate his in-car video on S.C. 22, thus, the evidence of Plaintiff swerving was not captured on video. Exhibit C at 3. Sgt. Utley also reported that Defendant Delaney did not activate his blue lights, therefore the violator did not know he was being stopped. Exhibit C at 3. The two men agreed after reviewing the video that Plaintiff “only had one clue on the walk and turn and one clue on the one leg stand.” Exhibit C at 3. According to Sgt. Utley, Defendant Delaney still believed that Plaintiff was under the influence of something, despite the fact that the tests he performed did not indicate any impairment. Exhibit C at 3. At this meeting, Defendant Delaney also admitted that he typed in the wrong imprint number that was located on the pills and therefore mistakenly believed Plaintiff was in possession of a Schedule III narcotic. Exhibit C at 3. Sgt. Utley included within his memo that Defendant Delaney violated policy by throwing the pill bottle containing the pills in the trash and violated policy in checking the tightness of Plaintiff's handcuffs. Exhibit C at 3. Sgt. Utley and Defendant Delaney also reviewed the video recording from J. Reuben Long. After watching the video, Sgt. Utley asked Defendant Delaney why he did not use the video recording to capture Plaintiff's refusal to take the tests, Defendant Delaney indicated “I don't know.” Exhibit C at 3. Sgt. Utley also reviewed the narrative from the arrest and discovered that Defendant Delaney was untruthful about the clues observed during the field sobriety tests. Exhibit C at 3. On April 3, 2021, Defendant Delaney submitted a resignation letter to Defendant SCDPS indicating he was seeking other law enforcement opportunities. See Resignation Letter, attached as Exhibit 6 to Def. SCDPS's Motion, ECF No. 46-6. The charges against Plaintiff were dismissed in May of 2021. See Dismissal Letters, attached as Exhibit 7 to Def. SCDPS's Motion, ECF No. 46-7.
In Plaintiff's Complaint, Plaintiff brought the following causes of action against Defendants: (1) negligence/gross negligence; (2) malicious prosecution; (3) false arrest and false imprisonment; (4) abuse of process; (5) negligent infliction of emotional distress and outrage; and (6) assault and battery. ECF No. 1-1 at 6-11. Plaintiff also brought two causes of action pursuant to 42 U.S.C. § 1983. Id. at 12-14. Pursuant to an order of this court, Plaintiff's causes of action against Defendant SCDPS for negligent infliction of emotional distress and outrage, as well as any claims pursuant to 42 U.S.C. § 1983 were dismissed. ECF No. 21.
II. Summary Judgment Standard
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 nonmovant 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 non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[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. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
III. Analysis
A. 42 U.S.C. § 1983 Claims
The only remaining section 1983 claims brought by Plaintiff are against Defendant Delaney only. Defendant Delaney argues that Plaintiff's constitutional claims cannot withstand summary judgment. Plaintiff disagrees and argues that the evidence in the record establishes there are genuine issues of material fact that are in dispute.
1. Eleventh Amendment Immunity
Defendant Delaney argues that, to the extent Plaintiff has brought suit pursuant to 42 U.S.C. 1983 against him in his official capacity as a trooper or employee of Defendant SCDPS, a state agency, such claims are barred by the Eleventh Amendment. Plaintiff does not refute Defendant's Delaney argument and expressly states that he has not alleged any official capacity claims against Defendant Delaney. See Pl.'s Br. at 9, n.5, ECF No. 52.
The Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). Eleventh Amendment immunity also extends to “arms of the State” and state employees acting in their official capacity. Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 378 (D.S.C. Jan. 9, 2019). Relatedly, the Supreme Court has held that neither a State nor its officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Moreover, a state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of South Carolina has not consented to be sued in this case. S.C. Code Ann. § 15-78-20(e). As such, the undersigned recommends granting summary judgment to Defendant Delaney, to the extent any claims are brought against him in his official capacity.
2. Improper Search and Seizure Violation
Defendant Delaney argues that Plaintiff's § 1983 Fourth Amendment claim for improper search and seizure fails as a matter of law because Plaintiff cannot show that he was arrested without probable cause. The Fourth Amendment protects the right of people “to be secure in their person . . . against unreasonable searches and seizures.” U.S. CONST. amend. IV. A seizure is unreasonable under the Fourth Amendment if it is not based on probable cause. Dunaway v. New York, 442 U.S. 200, 213 (1979). If a person is arrested “when no reasonable officer could believe . . . that probable cause exists to arrest that person, a violation of a clearly established Fourth Amendment right to be arrested only upon probable cause ensues.” Hupp v. Cook, 931 F.3d 307, 318 (4th Cir. 2019) (quoting Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001)). Probable cause exists when the facts and circumstances within an officer's knowledge “and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Gary v. Floyd, 582 F.Supp.2d 741, 745 (D.S.C. 2017) (quoting Dunaway, 442 U.S. at 208 n. 9). Whether probable cause exists turns on two factors in combination, the suspect's conduct as shown to the officer and the contours of the offense thought to be committed by that conduct. McCoy v. City of Columbia, 929 F.Supp.2d 541, 556-57 (D.S.C. 2013). The court's focus is on information reasonably available to the officer at the time of the arrest and in light of time and circumstance that may have reasonably affected the officer's perceptions. Id.
Here, the court has the benefit of video footage depicting Plaintiff's arrest. See Exhibit 3, attached to Def.'s Motion, ECF No. 44-3. The video depicts Defendant Delaney pull behind Plaintiff, who is in his work truck. Dash Cam Video at:00-:18. Once Defendant Delaney pulls behind Plaintiff, Plaintiff reverses his vehicle close to Defendant Delaney's vehicle, and Defendant Delaney swings his vehicle around, makes a U-turn, and positions himself behind Plaintiff's vehicle again. Dash Cam Video at:20-:33. Plaintiff exits his vehicle and picks up a fallen roadway sign, by all accounts appearing as if he's about to begin his workday. Dash Cam Video at:34-:49. Defendant Delaney's vehicle does not have the lights activated. Defendant Delaney then appears to either exit his vehicle or have the door open, and loudly commands, “stay right there and don't move. Stay right there and do not move. Do not move.” Dash Cam Video at:34-56. When Defendant Delaney repeats, “stay right there do not move,” Plaintiff puts his hands in the air. Dash Cam Video at 1:09-1:14. Defendant Delaney then moves into view of the video around 1:26. Plaintiff alleges Defendant Delaney had drawn his weapon on Plaintiff, while Defendant Delaney asserts he never pointed his duty weapon at Plaintiff. See McDowell Dep. 126:2-8; see Delaney Aff., ¶ 8. Due to the angle of the video, it does not show Defendant Delaney's hands during this part of their interaction.
After a brief discussion about why Defendant Delaney was on the scene, he performs several field sobriety tests and then places Plaintiff under arrest. Dash Cam Video at 11:45. Plaintiff inquires of Defendant Delaney why he was placed under arrest, and Defendant Delaney explains, “you're being arrested for DUI,” and further “you're going to be arrested for driving under the influence.” Dash Cam Video at 12:20-12:35. Defendant Delaney explains that he had been following Plaintiff for a “few miles,” and that Plaintiff almost drove off the road twice and almost hit a “semi-truck.” Dash Cam Video at 12:38-12:43. Plaintiff is then placed in Defendant Delaney's patrol car before Defendant Delaney decides to search Plaintiff's work truck.
Defendant Delaney relies upon lacobucci v. Town of Bonneau as support for his contention his belief was reasonable that he had probable cause to arrest Plaintiff. In lacobucci, a plaintiff brought suit against an officer, Fuda, after she was the subject of a traffic stop, which resulted in her arrest. lacobucci v. Town of Bonneau, No. 2:18-cv-0152-DCN-BM, 2019 WL 5874210, at *1 (D.S.C. May 29, 2019), report and recommendation adopted, No. 2:18-cv-00152-DCN-BM, 2019 WL 4686433 (D.S.C. Sept. 26, 2019). The plaintiff's charges included speeding, driving while impaired, a concealed weapons violation, and a drug violation. Id. at *3. Defendant Delaney zeroes in on the analysis provided as to whether Fuda, the arresting officer, had probable cause to charge the driver with driving under the influence in that case. In lacobucci, the court first established that the relevant inquiry was whether Fuda had a reasonable belief, based on the circumstances known to him, that the offender was driving under the influence of alcohol or drugs. Id. at *5. The court determined Fuda's belief was reasonable because during the traffic stop, Fuda found several pill bottles prescribed to individuals other than the plaintiff, and the plaintiff admitted to Fuda that she retained the pills for her personal use. Id. Further, the plaintiff failed her field sobriety tests. Id.
In the present case, Plaintiff was never charged with speeding. In fact, Defendant Delaney did not include any information regarding Plaintiff's speed in his report. Nor does he affirmatively state Plaintiff was speeding within his deposition. Instead, he states he observed Plaintiff fluctuating speed.
Like the officer in lacobucci, Defendant Delaney argues his belief that he had probable cause to arrest Plaintiff was reasonable. He argues that the following facts support this belief: (1) he was alerted to a possible DUI suspect that had allegedly committed a traffic violation and nearly been in a wreck; (2) he personally observed Plaintiff commit multiple traffic infractions; (3) in his interactions with Plaintiff, he acted lethargic, had slurred speech, and had dilated pupils; (4) Plaintiff told Defendant Delaney that he had taken multiple medications that morning; (5) Plaintiff had several pill bottles in his vehicle, at least one of which was prescribed to an individual other than Plaintiff; (6) Plaintiff admitted to taking the pills that were not prescribed to him; and (6) Plaintiff failed the field sobriety tests administered to him. Defendant Delaney further argues that like lacobucci, even in the absence of probable cause to suspect Plaintiff was driving under the influence, he had probable cause to arrest Plaintiff for speeding. See lacobucci, at *4 (where dash camera video showed the plaintiff travelling at 56 miles per hour when the posted speed limit was 45 miles per hour and the plaintiff did not contest she was speeding either in the video or at her deposition). Defendant Delaney argues that not only did he personally observe Plaintiff fail to maintain his lane, but he observed Plaintiff exceeding the speed limit and Plaintiff admitted to speeding.
Delaney cites to S.C. Code Ann. §§ 56-5-1810, 56-5-1520 and 56-5-6190.
Plaintiff disputes these facts. Plaintiff points out that this case is distinguishable from lacobucci, because unlike the plaintiff's circumstances in that case, there is a genuine issue of material fact as to whether any traffic violation occurred at all. First, Plaintiff argues that Defendant Delaney did not observe Plaintiff speeding; instead, Defendant Delaney observed Plaintiff “fluctuate” his speed, at least that was his contention in his deposition. In his affidavit, Defendant Delaney now states he observed Plaintiff speeding, though he does not raise this issue with Plaintiff roadside. Plaintiff further argues that the issue of whether Plaintiff was speeding is contested, as evidenced by his deposition testimony. Indeed, Defendant Delaney did not state in his SCIBRS report that Plaintiff was speeding. See SCDPS Case Report attached as Exhibit 1 to Defs.' Motion, ECF No. 46-1. Second, Plaintiff argues Defendant Delaney did not personally observe Plaintiff “run a stop sign.”Third, Plaintiff argues there is “nothing” to support the lawfulness of Plaintiff's seizure with respect to the suspicion that he was driving under the influence.Finally, Plaintiff points out that the credibility of Defendant Delaney is in question based on the report of Sgt. Utley, and in fact Plaintiff alleges that a reasonable jury could believe that Defendant Delaney fabricated his assertions to effectuate an arrest. Pl.'s Br. at 1, ECF No. 52. Defendant Delaney provided a substantive Reply.Within his Reply, he argues that Plaintiff has not produced any testimony that calls Defendant Delaney's testimony into question. The undersigned will address this argument below. Of course, “subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (1996). The court is instead tasked with determining whether a reasonable officer would believe, based on the circumstances, whether he had probable cause to arrest Plaintiff. The undersigned has considered the evidence that provides clarity as to what Defendant Delaney believed to be the circumstances allowing him to arrest Plaintiff at the time of the step. The parties do not dispute that an individual called law enforcement regarding an individual in a white truck with a flashing light that ran a stop sign and almost got into a wreck. See Exhibit 2 attached to Def.'s Motion. Defendant Delaney then relies upon his own testimony to support the fact that it was his personal observation that Plaintiff committed multiple traffic infractions. In his deposition, he testifies only to personally observing Plaintiff being unable to maintain his lane and fluctuating speed. Delaney Dep. 20:5-10. Defendant Delaney also relies upon his own testimony as to how Plaintiff was acting as further support that he had probable cause to arrest him for driving under the influence. Delaney Dep. 36:4-8. Similarly, Defendant Delaney relies upon his own testimony as to Plaintiff's performance on the field sobriety tests. Delaney Dep. 60-61; 66.
Upon information and belief, SCIBRS stands for “South Carolina Incident Based Reporting System.” See South Carolina State Law Enforcement Division Website at https://www.sled.sc.gov/crimestatistics.
Plaintiff also argues that such a traffic violation would not support an arrest. See, e.g., State v. Retford, 276 S.C. 657 (S.C. 1981) (“An officer may [only] arrest for a misdemeanor without an arrest warrant when a public offense is committed in his presence).
Plaintiff points out, for example, that it was easily observable to Defendant Delaney that Plaintiff does not have any teeth, which makes his ability to “speak properly” difficult. Plaintiff cites to deposition testimony pages that are not included within those pages provided to the court.
Defendant points out that Plaintiff may not rely upon his own self-serving testimony to create a genuine issue of material fact in opposition to summary judgment. The undersigned does not find that Plaintiff solely relies upon his own testimony. In any event, both parties rely upon their own deposition testimony to support at least some of the facts they seek to establish in this case.
Within the evidence provided to the court is the report, drafted as a memorandum, prepared by Sgt. Utley. This document reflects a conversation had between Defendant Delaney and Sgt. Utley wherein both men agreed that Plaintiff had only one clue on two of the field sobriety tests, which indicates Plaintiff did not have an impairment. Sgt. Utley provided a declaration, dated nearly 3 years after the arrest, explaining some of the information set forth in this document. See Declaration of Daniel J. Utley, attached as Exhibit 1 to Def. SCDPS' Reply, ECF No. 61-1. Within this declaration, he asserts that where two or more clues are present during the administration of a field sobriety test (“FST”), that is an indicator that a suspect is impaired. Utley Dec., ¶ 5. Sgt. Utley also indicates that the usage of FTSs are not mandatory, and they are but “one component” of a variety of factors a trooper considers when determining whether probable case exists to arrest someone for DUI. Utley Dec., ¶ 6. While this may be true, at the time he issues his memorandum, it is clear to the court that Sgt. Utley pressed Defendant Delaney as to why he relied upon the FSTs to arrest Plaintiff.
Further, Sgt. Utley states in this document that after reviewing the SCIBRS report narrative for the arrest, “it was discovered that Trp. Delaney was untruthful about the clues observed during the field sobriety tests.” See Exhibit C at 4, attached to Pl.'s Br., ECF No. 533 (emphasis added). It is true that the only relevant facts in a probable cause analysis for an arrest are those facts and circumstances known to an officer at the time of the arrest. McCoy v. City of Columbia, 929 F.Supp.2d 541, 558 (D.S.C. 2013). However, while this memorandum was created after the stop occurred, the fact remains that Sgt. Utley indicates that at least one of Defendant Delaney's articulated reasons for arresting Plaintiff for driving under the influence at the time of the step was not based on Defendant Delaney's actual observations at the time of the stop. Indeed, what Sgt. Utley reports is that what was written in his report was not what was actually observed at the time of the step. Thus, one of reasons Defendant Delaney believed he had probable cause to arrest Plaintiff is affirmatively shown to not have actually been observed by him. Moreover, it bears upon Defendant Delaney's credibility that his superior believed that he put information that was not truthful in his arrest narrative. See generally Smith v. Reddy, 101 F.3d 351, 355 (4th Cir. 1996) (discussing the issue of an officer obtaining a warrant in the context of a Franks violation, but ultimately stating that “a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by statements that the officer knows or should know are false.”). Here, the undersigned finds that the evidence suggests there is a genuine dispute as to whether Defendant Delaney actually observed circumstances that would cause him to reasonably believe he had probable cause to arrest Plaintiff.
Defendant Delaney argues this report is irrelevant pursuant to Federal Rule of Civil Procedure 56(c)(2) because it was prepared after Plaintiff was arrested. Def.'s Reply at 5; ECF No. 60. Defendant Delaney is correct that it was created subsequent to the arrest; however, the document itself contains an interview with Defendant Delaney regarding what he actually observed at the time of the arrest and is based on what he put in his report at the time of the arrest. Moreover, the dash cam video provides an actual view of what Defendant Delaney did or did not see regarding the FSTs. The undersigned finds this document to be evidence of Defendant Delaney's perception of the circumstances at the time of the arrest. Further, Plaintiff argues that this report lends credence to Plaintiff's contention that Defendant Delaney's other stated personal observations should be questioned. This is particularly true when the video evidence at the scene does not affirmatively support a finding that Plaintiff was indeed under the influence of any substances. At the summary judgment stage, this report calls into question whether a reasonable officer would believe Plaintiff was an impaired driver, such that he had probable cause to arrest Plaintiff.
The undersigned also considered Plaintiff's argument regarding the improperly typed number in identifying the pills found within Plaintiff's vehicle. However, though troubling, especially in light of the fact that Defendant Delaney threw away the bottle in which they were contained, the record before the court reflects that this was a mistake, albeit a sloppy error, on the part of Defendant Delaney. There is no evidence within the record that Defendant Delaney fraudulently typed the wrong number in the system.
The court has also considered Defendant Delaney's argument that regardless of whether there was probable cause to arrest on suspicion of driving under the influence, Defendant Delaney has successfully established there was probable cause to arrest Plaintiff for speeding. It is irrelevant to the probable cause analysis what crime Plaintiff was actually charged with. Sennett v. United States, 667 F.3d 531, 535-36 (4th Cir. 2012). However, the undersigned remains unconvinced that there is no genuine material dispute of fact on this point, either. First, the dash camera video, depicting Defendant Delaney initiating the traffic stop and speaking with Plaintiff, does not include Defendant Delaney questioning Plaintiff about his speed, though he does state he was “all over the road.” Dash Cam Video at 2:42, 12:55. Indeed, Defendant Delaney does not bring up Plaintiff's speed at any point prior to his arrest, nor does he mention it to two officers who arrive on scene. Dash Cam Video 14:48-16:15. This is troubling because Defendant Delaney later asserts that Plaintiff was going 83 miles per hour in what the court presumes to be a road with a 65 mile per hour speed limit.In other words, according to Defendant Delaney, Plaintiff was travelling nearly 20 miles per hour over the speed limit, but he did not question Plaintiff at all about his speed in their initial encounter. Nor was Plaintiff cited for speeding. Still, part of Defendant Delaney's argument that he had probable cause to arrest Plaintiff is that it is an “undisputed fact” that Plaintiff was speeding, and that Plaintiff “admitted” to speeding. See Def.'s Motion at 8; ECF No. 44. As support for this claim, Defendant cites to the Horry County Detention Center footage, which occurred well after he initially stopped Plaintiff and was now taking him for testing related to his suspicion of driving under the influence. In reviewing that footage, the following exchange occurs:
When Plaintiff is asked how long it would normally take him to leave his home at arrive at the traffic stop, he references a “normal” speed of 55 miles per hour. McDowell Dep.114:18-23. However, in Defendant Delaney's Reply, he provides his own affidavit and states he observed Plaintiff driving at 83 mph in a 65 mph zone. See Affidavit of Brendan Delaney, 6, attached as Exhibit A to Def.'s Reply, ECF No. 60.
Defendant Delaney: How fast were you going?
Plaintiff: I was going over 60 miles per hour at one time Defendant Delaney: You were doing 83, actually.
Plaintiff: I was going over 60 that one time.
Defendant Delaney: Okay. You couldn't maintain your lane.See Horry County Detention Center footage at 20:57-21:05, attached as Exhibit 5 to Def.'s Motion, ECF No. 44-5. Assuming the speed limit to be 65 miles per hour, Plaintiff did not admit to speeding. However, Plaintiff also explained to Defendant Delaney during the traffic stop (and in his deposition), that based upon his employment, he believed he was permitted to travel 5-10 miles over the speed limit when answering the type of call he answered on the day in question. McDowell Dep. 114:24-24; 115:1-13. Similarly, Plaintiff did not expressly “admit” to speeding in his deposition. Plaintiff explained that when he was in his work truck with his lights on, he would be “permitted” to drive these few extra miles over the speed limit. McDowell Dep. 115. While Defendant Delaney does tell Plaintiff that he “observed” Plaintiff travelling at 83 miles per hour once they are at the Horry County Detention Center, the Fourth Amendment does not expressly allow for an officer's visual speed estimate to always suffice as a basis for probable cause to initiate a traffic stop. United States v. Sowards, 690 F.3d 583, 591 (4th Cir. 2012). The question is one of reasonableness, which at least in part, depends on whether a vehicle's speed is estimated to be in significant excess or slight excess of the legal speed limit. Id. Moreover, Defendant Delaney did not initially inform Plaintiff he was speeding, nor does it appear anywhere in his report.
Defendant Delaney additionally argues that he personally observed Plaintiff's failure to maintain his lane, thereby constituting evidence of a traffic violation. There is evidence in the record to support Defendant Delaney's explanation of events, most notably the dash camera video evidencing Defendant Delaney ask Plaintiff “what's going on this morning” and informing Plaintiff that he was “all over the road.” Still, Plaintiff expressly disputes that he failed to maintain his lane. McDowell Dep. 126:18-19 (wherein he states, “I didn't do nothing wrong.”). Plaintiff further points to Sgt. Utley's report, where Sgt. Utley explains that Defendant Delaney failed to activate his in-car video, therefore the evidence of Plaintiff swerving was not captured. See Exhibit C attached to Pl.'s Br., ECF No. 52-3. Finally, there is the question of whether the prescription bottle found in Plaintiff's work truck and belonging to someone else can support a finding of probable cause. However, by the time Plaintiff's work truck was searched, Plaintiff had already been arrested and sitting in the patrol car. Therefore, aside from Plaintiff explaining he takes prescription medication, Defendant Delaney could not have arrested him on suspicion of having another individual's prescription. Additionally, the fact that Defendant Delaney threw away the pill bottle, which would have possibly indicated what type of medication it was, further calls into question whether his actions were reasonable. Probable cause exists, if given the totality of the circumstances, the officer had “reasonably trustworthy information” sufficient to warrant a prudent person to believe an individual had committed an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998). In considering the totality of the circumstances in this case, particularly the lack of support for Defendant Delaney's personal observations for initiating an arrest, and the fact that there is some evidence before the court that Defendant Delaney's actions during the course of his investigation on the roadside may have been based on inaccurate reporting, coupled with the fact that the video provided by the parties does not definitively support Defendant Delaney's contentions, there exists a genuine dispute as to whether Defendant Delay's arrest was supported by probable cause. The undersigned would therefore recommend denying summary judgment on this claim.
3. Cruel and Unusual Punishment
Defendant Delaney next argues that Plaintiff's Fourth and Eighth Amendment claim for cruel and unusual punishment fails as a matter of law because Plaintiff does not allege he was convicted, but rather that the charges for which he was arrested, were dismissed. Plaintiff does not provide a substantive response to this argument. The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted.” U.S. CONST. amend. VIII. The proscription against cruel and unusual punishment is designed to protect individuals convicted of crimes. Ingraham v. Wright, 430 U.S. 651, 664 (1997). The undersigned agrees with Defendant Delaney that Plaintiff has not provided any facts to support a claim brought pursuant to the Eighth Amendment on this ground and would therefore recommend granting summary judgment on this ground.
It is unclear to the court why Plaintiff brought a cruel and unusual punishment claim under both the Fourth and Eighth Amendment. In any event, the court has previously addressed Plaintiff's Fourth Amendment claim in the previous section.
4. Qualified Immunity
Defendant Delaney asserts that he is entitled to the protection afforded under the doctrine of qualified immunity. When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights, and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). The Fourth Circuit employs a split burden of proof for the qualified immunity defense. The plaintiff bears the burden of proving the first prong, and the [officer] bears the burden on the second prong. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)); See also Mays v. Sprinkle, 992. F.3d 295, 302 n.5 (4th Cir. 2021) (explaining that plaintiff has the burden of proof to show a constitutional violation, while defendant must show the violation was not clearly established). To be a clearly established right, it must be sufficiently clear that a reasonable official would have understood that what he or she is or was doing violates that right. Taylor v. Barkes, 575 U.S. 822, 825 (2015). Qualified immunity protects all but the “plainly incompetent or those who knowingly violate the law.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (citing Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011)).
Here, the undersigned has determined that a question of material fact remains as to whether Defendant Delaney violated Plaintiff's constitutional rights. The question then becomes whether this constitutional right was clearly established. It must be sufficiently clear that a reasonable official would have understood that what he or she is or was doing violates that right. Taylor v. Barkes, 575 U.S. 822, 825 (2015). Defendant Delaney argues that Plaintiff has failed to cite to any controlling authority that would support a finding that his arrest was unconstitutional. However, the undersigned has determined that whether Defendant Delaney had probable cause to arrest Plaintiff is a question for the jury. See McPhearson v. Anderson, 874 F.Supp.2d 573, 581 (E.D. Va. 2012) (“The Fourth Circuit has definitively held that the qualified immunity doctrine protects police officers who mistakenly make an arrest, so long as that arrest is supported by probable cause.”). Further, whether a plaintiff's right to be free from arrest has been clearly established turns not on “whether there actually was probable cause .. but whether an objective law officer could reasonably have believed probable cause to exist.” Thurston v. Frye, 99 F.4th 665, 676 (4th Cir. 2024). Defendant Delaney does not provide conclusive evidence that an objective officer would have reasonably believed probably cause existed in this case. Indeed, Sgt. Utley's report suggests that in his view, there were several problems with Plaintiff's arrest. For this same reason, the undersigned finds that an arrest lacking probable cause is a violation of a clearly established right afforded to citizens. Therefore, the undersigned does not agree with Defendant Delaney that he is entitled to summary judgment on the issue of qualified immunity as to the federal causes of action.
B. South Carolina Tort Claims against both Defendants
The remaining claims brought by Plaintiff against both Defendant Delaney and Defendant SCDPS are all state law tort causes of action brought pursuant to the South Carolina Tort Claims Act (the “SCTCA”).These state law causes of action include negligence/gross negligence, malicious prosecution, false arrest and false imprisonment, abuse of process, and assault and battery. Defendant Delaney and Defendant SCDPS argue that the SCTCA forecloses Plaintiff's claim, though their reasoning differs as to its application. Plaintiff disputes whether the SCTCA applies at all to these claims. In arguing against the grant of summary judgment for Defendant SCDPS, Plaintiff argues he has brought forth evidence that Defendant Delaney acted with malice. See Pl.'s Br. at 10. In arguing against granting summary judgment to Defendant Delaney, Plaintiff argues both that he has brought forth evidence that Defendant Delaney acted with malice, and he sued him in his individual capacity versus his official capacity, thus the SCTCA does not apply. Pl.'s Br. at 13, ECF No. 52. At the same time, Plaintiff alleges Defendant Delaney was acting within the scope of his employment. See ECF No. 1-1 at 2. This court has previously determined that, to extent an individual is sued in his or her individual capacity (such as in this case), government employees are immune from suit under the SCTCA unless they (1) acted outside the scope of employment; or (2) committed actual fraud or acted with actual malice, intent to harm, or committed a crime involving moral turpitude. DeCecco v. Univ. of S.C., 918 F.Supp.2d 471, 521 (D.S.C. Jan. 16, 2013). Simply suing Defendant Delaney in his individual capacity does not foreclose the application of the SCTCA. Case law dictates that the SCTCA applies to a plaintiff's claims where the complaint alleges torts were committed by government employees acting within the scope of their official duty. Flateau v. Harrelson, 584 S.E.2d 413, 417, 355 S.C. 197 (S.C. Ct. App. 2003). Plaintiff does exactly that in this case. ECF No. 1-1 at 2; 3. That issue aside, the question becomes the applicability of the SCTCA and whether Plaintiff can sue both the employee and the employer under the SCTCA for the same state law tort claims under these circumstances.The threshold question is whether the Defendants' alleged actions fall inside or outside the ambit of the SCTCA. Smith v. City of Greenwood, No. 8:09-cv-2061-HFF-BHH, 2010 WL 2382479, at *3 (D.S.C. June 14, 2010).
On May 12, 2023, this court previously dismissed Plaintiff's causes of action against SCDPS for negligent infliction of emotional distress/outrage. ECF No. 21. Defendant Delaney argues that Plaintiff's Negligent Infliction of Emotional Distress Claim should be dismissed because these claims are limited to bystander recovery in South Carolina. Doe v. North Greenville Hosp., 458 S.E.2d 439, 442, 318 S.C. 459 (S.C. Ct. App. 1995); see Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467, 286 S.C. 579 (S.C. 1985). Plaintiff fails to allege injuries on behalf of anyone other than himself. Moreover, Plaintiff does not address this claim in his Motion. Accordingly, to the extent Plaintiff has not already abandoned this claim, the undersigned recommends granting summary judgment as to this claim.
In McCoy v. Columbia, this court faced a similar posture. However, in that case, the court found that even if the plaintiff were correct that he should be allowed to pursue alternative theories, the plaintiff in that case had not shown a genuine issue as to whether the officer's conduct met an exception in the SCTCA, allowing for employee liability. 929 F.Supp.2d 541, 566 (D.S.C. 2013).
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 SCTCA provides that when an employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as the party defendant. S.C. Code Ann. § 15-78-70(c). Under the SCTCA, an employee may not be personally liable unless “it is proved, not alleged that his conduct was not within the scope of his official duties or that it constituted fraud, actual malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-70(b)(emphasis added). Here, Courts have consistently interpreted the SCTCA as requiring a plaintiff to “sue the agency for which the employee works, rather than suing the employee directly” if a plaintiff claims a government employee acted negligently in the official performance of one's duties. Faulkner v. York County School District, No. 0:21-cv-02090-JMC, 2022 WL 673684, *5 (D.S.C. March 7, 2022) (quoting Flataeu v. Harrelson, 584 S.E.2d 413, 418 (S.C. Ct. App. 2003)). An employee of a governmental entity is immune from suit for tortious acts committed within the scope of his or her official duties. Id.
Plaintiff has alleged both that Defendant Delaney was acting within the scope of his employment, and that he acted with actual malice and the intent to harm. The court has explained in the summary judgment context that “the text of the relevant SCTCA exception is disjunctive: [t]he state is immune either if the employee acted outside the scope of his duties or if his conduct constitutes actual fraud, actual malice, intent to harm, or moral turpitude.” Newkirk v. Enzor, 240 F.Supp.3d 426, 436 (D.S.C. 2017) (emphasis in original). An employee acting within the scope of his employment whose conduct constitutes actual fraud, actual malice, intent to harm, or moral turpitude, may still be individually liable, if such conduct is proven, but the state would be immune. In other words, if Defendant Delaney was “not within the scope of his official duties” or acting with “actual fraud, actual malice, intention to harm, or a crime involving moral turpitude,” then those claims must be brought against Defendant Delaney and not Defendant SCDPS. The SCTCA provides that its provisions must be “liberally construed in favor of limiting the liability” of the governmental entity. S.C. Code Ann. § 15-78-20(f).
Under the SCTCA, for any given tort, either the governmental entity or the employee is liable, but not both. Newkirk, 240 F.Supp.3d at 436. There are two avenues for suit under the SCTCA. If an employee's tortious actions fall within the protection of this provision, the employee is immunized from liability, and the plaintiff must sue the governmental entity, rather than the employee. Botten v. Charleston Cnty. EMS, No. 2:23-cv-05064-DCN, 2024 WL 1120332, at *6 (D.S.C. Mar. 14, 2024) (citing Newkirk, 240 F.Supp.3d at 436). Alternatively, if a plaintiff proves that an “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,” then the government agency is not liable, and instead, the employee is personally liable. Id. This principle was clearly explained in Botten, where this court pointed out that a plaintiff may not proceed against both the governmental entity and the employee as to the claims. Id. Botten also makes clear that additional considerations factor in when the governmental employee is accused of committing an intentional tort, such as is the case here. See id. at 7. The SCTCA requires “neither categorical immunization nor categorical liability for the governmental employee in such situations.” Id. (citing Newkirk, 240 F.Supp.3d at 43637). In Watson v. Adams, No. 4:12-cv-3437-BHH, 2017 WL 1001122 (D.S.C. March 15, 2017), this court considered claims against both an officer defendant and a governmental entity. The governmental entity in that case was the SCDPS, and it argued that the intentional conduct the plaintiff alleged by the defendant officer was so egregious that the SCDPS could not be held liable. Id. at *12. The court disagreed that this was a conclusion that could be made as a matter of law, and further explained that “the federal rules' liberal pleading requirements allow a plaintiff to plead alternative theories of relief, even if these theories are inconsistent with one another.” Id. at 13. The same is true here. And although Plaintiff may only ultimately recover for the alleged torts either on his SCTCA claims against Defendant SCDPS or his state tort claims against Defendant Delaney, this court has found it is appropriate to plead both at the summary judgment stage. See Watson, 2017 WL 1001122 at *13.
Like Watson, there is a genuine dispute of material fact as to whether Defendant Delaney acted with malice or intent to harm. The term “actual malice” is not defined under the SCTCA. South Carolina defines “malice” as it is used in the tort of malicious prosecution as “the deliberate, intentional doing of a wrongful act without just cause or excuse.” Fields v. Richland Cnty. Sheriff's Dep't, No. 3:17-cv-0443-MGL-TER, 2018 WL 4560538, at *5 (D.S.C. May 25, 2018), report and recommendation adopted, No. 3:17-cv-0443-MGL-TER, 2018 WL 4001830 (D.S.C. Aug. 22, 2018). Plaintiff clearly argues that Defendant Delaney acted with malice and has taken that position throughout the entirety of the litigation from the inception of the lawsuit. See Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005) (explaining that a state employee can be held personally liable for some intentional torts committed within the scope of his employment). For example, Plaintiff alleges several times within his Complaint that Defendant Delaney acted “maliciously.” ECF No. 1-1 at 8, 9, 14. Second, Plaintiff asserts, not only in his response in opposition to both Defendant Delaney and SCDPS's summary judgment motion that Defendant Delaney acted with “actual malice.” See ECF Nos. 52; 53. Specifically, Plaintiff argues that, “[i]n the instant case, there is ample evidence to support an inference of malice.” See ECF No. 53 at 10. Plaintiff further argues, “[a]s applied here, there is evidence that Delaney intentionally made false statements in his arrest paperwork, to effectuate and perpetuate charges against” Plaintiff and “a jury could infer that Delaney acted with requisite malice.” See ECF No. 53 at 10. Plaintiff provides several examples of what he believes are instances of Defendant Delaney's malicious conduct, and he provides e-mails suggesting that Defendant Delaney has a history of unsupported arrests. See ECF No. 53 at 11.
For his part, Defendant Delaney argues that he is immune from suit under the SCTCA because, as expressly acknowledged by Plaintiff in his Complaint, he was acting within the scope of his employment and the SCTCA affords him immunity for such actions. Further, Defendant Delaney argues that while Plaintiff repeatedly used the word “malicious” in his Complaint, Plaintiff has not provided any evidence that Defendant Delaney acted with actual malice. Should a trier of fact find that Delaney was within the scope of his employment, Defendant SCDPS would be liable. Should a trier of fact find that Defendant Delaney acted with malice, Plaintiff has pled the state law claims against him in his individual capacity.
This court has previously addressed a similar argument. In Newkirk v. Enzor, the SCDPS argued that because tort claims such as gross negligence, recklessness, malicious prosecution, and false imprisonment are all traditionally considered “intentional torts,” and, like the present case, because the plaintiff took the position that Mr. Enzor's actions were intentional and based on malice, these claims were precluded by S.C. Code Ann. § 15-78-60. The court disagreed. First, the court pointed out that the statutory phrases found in the relevant code section were “terms of art,” and clearly intended to apply to behavior that was “so wildly beyond what could have been anticipated or managed by his or her employer that the state cannot reasonably be held responsible for it.” Newkirk, 2015 WL 3853148, at *4 (citing Elder v. Gaffney Ledger, 533 S.E.2d 899, 341 S.C. 108 (2000)). Second, the court pointed out that the governmental entity claiming an exception to the waiver of immunity carries the burden of establishing such a limitation on liability. Id.
Defendant Delaney argues that while Plaintiff repeatedly uses the word “malicious” in his Complaint, he has brought forth no evidence that Defendant Delaney acted with actual malice on March 11, 2021. In turn, Plaintiff argues that there is evidence within the record that Defendant Delaney “intentionally made false statements in his arrest paperwork, to effectuate and perpetuate charges” against Plaintiff. Pl.'s Br. at 14; ECF No. 52. The report states that Defendant Delaney was “untruthful” about the clues he observed when performing field sobriety tests upon Plaintiff. See Exhibit C attached to Pl.'s Br. Plaintiff argues this fact alone creates a question of fact for the jury. Plaintiff also points to this report as evidence that Defendant Delaney “admitted” no indicators if impairment were present during Plaintiff's field sobriety tests. This is true; however, in neither of these instances does Defendant Delaney actually admit to fabricating any information or intentionally misleading anyone. It does not necessarily follow that Defendant Delaney was deliberately or intentionally lying in his belief that Plaintiff was not sober. Plaintiff also argues that there is evidence Defendant Delaney “intentionally” turned off camera recording equipment at a critical juncture of the investigation and failed to turn his in-car dash camera on prior to Plaintiff's arrest. Viewing the evidence in a light most favorable to Plaintiff, the undersigned finds that there is genuine issue of material fact as to whether Defendant Delaney acted with malice or intent to harm. Consequently, the undersigned is unable to find that Defendant Delaney is immune from suit as to any of the claims involving intentional torts. Defendant SCDPS has also alleged several exceptions found within the SCTCA apply to limit their liability. Specifically, the SCDPS argues that, to the extent it is held liable, these exceptions apply: S.C. Code Ann. §§ 15-78-60(23), 15-78-60(6), 15-78-60(4), 15-78-60(5); 15-78-60(3). Plaintiff argues that these exceptions do not apply. The undersigned will consider those in the context of each claim.
Of these immunities, the court specifically considers S.C. Code Ann. § 15-78-60(3), as well as § 60-78-60(23) below. However, the governmental entity bears the burden of showing a waiver of immunity applies. Faile v. S.C. Dep't of Juvenile Justice, 566 S.E.2d 536, 540, 350 S.C. 315 (S.C. 2002) Here, Defendant SCDPS generally argues that every immunity applies to all of Plaintiff's claims. As to § 15-78-60(4), the undersigned notes that the parties do not focus on any conduct on the part of Defendant Delaney wherein he was in the process of enforcing compliance with a law, such as being in the process of executing a search warrant. Plaintiff's contention is that Defendant Delaney was acting without justification when he decided to arrest Plaintiff. Further, it is in dispute whether Plaintiff had in fact committed a traffic violation. As to § 15-78-60(5), to establish discretionary immunity, the governmental entity must prove its employee “faced with alternatives, actually weighed competing considerations and made a conscious choice. Clark v. S.C. Dep't of Pub. Safety, 608 S.E.2d 573, 578, 362 S.C. 377 (S.C. 2005). Further, the governmental entity must show that “in weighing the competing considerations and alternatives, it utilized accepted professional standards.” Id. However, at issue is Defendant Delaney's conduct in whether he utilized discretion and did so based on professional standards. Finally, as to § 15-78-60(6), the undersigned does not agree this exception is applicable because there was no “civil disobedience, riot, insurrection or rebellion.” Nor does the undersigned agree that Plaintiff argues there was a failure to provide police protection.
1. False Arrest and False Imprisonment
Defendants argue Plaintiff has failed to establish a claim for false arrest and false imprisonment. The lynchpin of the torts of false arrest and false imprisonment under South Carolina law is the deprivation of a person's liberty without lawful justification. Law v. S.C.D.C., 629 S.E.2d 642, 651, 368 S.C. 424 (S.C. 2006) (citing Gist v. Berkeley Cty. Sheriff's Dep't, 521 S.E.2d 163, 165, 336 S.C. 611 (S.C. Ct. App. 1999)). To establish a claim of false imprisonment, a plaintiff must prove that a defendant intentionally and lawfully restrained the plaintiff. Id. A defendant must also have probable cause to make an arrest. Id. To prevail on a false arrest claim, a plaintiff must establish his arrest was not lawful. Wortman, 425 S.E.2d at 20. The fundamental question as to whether an arrest was lawful is whether there was “probable cause” to make such an arrest. Id. at 20. Under South Carolina law, “Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests on such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise.” Id. The South Carolina Supreme Court has noted that “the issue of probable cause is a question of fact and ordinarily one for the jury. Id. (citing Jones v. City of Columbia, 389 S.E.2d 662, 663 (S.C. 1990). As to the constitutional claims, the undersigned has determined there is a question of fact as to whether Defendant Delaney had probable cause to arrest Plaintiff. Therefore, the undersigned finds that viewing the facts in a light most favorable to Plaintiff, there is question as to whether an ordinarily prudent and cautious person would believe probable cause existed to arrest Plaintiff. As previously explained, because there is a genuine dispute of material fact as to whether Defendant Delaney acted within the scope of his employment during the arrest, a jury could conclude he acted within the scope of his employment and find Defendant SCDPS liable. A jury could reach the opposite conclusion, and Defendant Delaney would be liable. Accordingly, the undersigned denies granting summary judgment to Defendants Delaney and SCDPS on this claim.
Defendant SCDPS argues S.C. Code Ann. § 15-78-60(23) bars this claim. This court has previously determined that in similar circumstances, this code section did not operate to bar a false imprisonment/false arrest claim. Thompson v. City of Columbia, No. 3:05-cv-1605-CMC, 2005 WL 8164911, at *5 (D.S.C. July 21, 2005). As to whether S.C. Code Ann. § 15-78-60(3) applies, Wortman found that because the plaintiff in that case was arrested before the governmental entity obtained a warrant, the actions of the officer did not occur during the “execution or enforcement of the order of any court or during the lawful implementation of any process, as contemplated by section 15-78-70(3). Wortman v. Spartanburg, 425 S.E.2d 18, 20, 310 S.C. 1 (S.C. 1992). Similarly, Plaintiff was arrested prior to the issuance of a warrant.
2. Malicious Prosecution Claim
Both Defendants argue they are entitled to summary judgment as to Plaintiff's malicious prosecution claim, albeit for different reasons. Defendant SCDPS argues that S.C. Code Ann. § 15-78-60(23) bars this claim. This code section provides 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). Defendant SCDPS argues that because all of Plaintiff's state law claims are premised on his allegedly improper arrest without probable case, which is “clearly a judicial proceeding,” Plaintiff's claims must be dismissed. Plaintiff disagrees this code section bars all state law claims. However, as to his malicious prosecution claim, Plaintiff acknowledges that this provision may operate to bar such a claim. Because the first element of a malicious prosecution claim requires “the institution or continuation of original judicial proceedings,” it is clear that the legislature intended to exclude claims for malicious prosecution from the waiver of immunity for governmental entities under this provision of the SCTCA. Thompson, 2005 WL 8164911, at *4. Accordingly, Defendant SCDPS is immune from suit as to this claim.
Defendant Delaney argues that Plaintiff's malicious prosecution claim must be dismissed under the protections provided to Defendant Delaney under the SCTCA. The tort of malicious prosecution ordinarily involves the institution of a criminal prosecution without probable cause. The element to establish for malicious prosecution include: (1) the institution or continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3) termination of any such proceeding in plaintiff's favor; (4) malice in instituting such proceedings; (5) want of probable cause; and (6) resulting injury or damage. Zimbelman v. Savage, 745 F.Supp.2d 664, 683-84 (D.S.C. 2010); see also Eaves v. Broad River Elec. Coop., 289 S.E.2d 414, 415, 277 S.C. 475 (S.C. 1982).
Defendant Delaney argues that Plaintiff cannot meet the first element of the malicious prosecution test, which requires “the institution or continuation of original judicial proceedings.” See Doe v. Porter-Gaud School, 649 F.Supp.3d 164, 176-177 (D.S.C. 2023) (citing Pallares v. Seinar, 756 S.E.2d 128, 131 (2014)). In order to bring a malicious prosecution claim, the plaintiff must be charged with a crime. Id. at 176. Here, Plaintiff was charged but the charges were ultimately dismissed. Further, Defendant Delaney argues that he had probable cause to arrest Plaintiff. However, as previously discussed, the undersigned finds there is a genuine dispute as to whether Defendant Delaney had probable cause to arrest Plaintiff. Thus, the undersigned recommends denying summary judgment to Defendant Delaney as to this claim.
In Adams v. Cty. of Lexington, No. 8:20-cv-4296-MGL-PJG, 2022 WL 21747956, at *9 (D.S.C. May 19, 2022), the court noted that a malicious prosecution claim must be brought pursuant to the SCTCA, and that none of the exceptions listed in S.C. Code Ann. § 15-78-70(b) applies to a malicious prosecution claim). Here, Plaintiff explicitly alleges Defendant Delaney acted with malice. Further, in an action for malicious prosecution, malice may be inferred from a lack of probable cause to institute a prosecution. Margolis v. Telech, 122 S.E.2d 417, 420, 239 S.C. 232 (S.C. 1961).
3. Abuse of Process Claim
Defendant SCDPS also argues that S.C. Code Ann. § 15-78-60(23) bars the abuse of process claim. Plaintiff alleged that Defendants “caused, instituted, and/or procured the unlawful arrest, detention, and criminal prosecution of Plaintiff.” ECF No. 1-1 at 10. Further, Plaintiff alleged Defendants “initiated criminal process against the Plaintiff.” ECF No. 1-1 at 10. Plaintiff argues that because he alleges Defendant Delaney applied for a warrant based on false or reckless information, and the warrant is not an “institution or prosecution,” this exception does not apply. The argument concerning Defendant Delaney's actions in obtaining a warrant were not found within the Complaint. Knowingly presenting false information in a warrant would seem to fall squarely within the intentional conduct of Defendant Delaney, thereby taking this claim outside the ambit of the SCTCA. That issue aside, this court has previously determined that when an abuse of process claim against SCDPS rests on its alleged institution of criminal proceedings, it falls within this exception. Watson v. Adams, No. CV 4:12-3437-BHH, 2017 WL 1001122, at *15 (D.S.C. Mar. 15, 2017). The undersigned agrees that the basis for Plaintiff's abuse of process claim against SCDPS rests on the prosecution of his claims, specifically as delineated within his Complaint, therefore SCDPS has carried its burden of showing this code section applies.
As to Defendant Delaney, under South Carolina law, the two essential elements of an abuse of process claim are (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the conduct of the proceeding. Argoe v. Three Rivers Behavioral Ctr. & Psvchiatriac Solutions, 697 S.E.2d 551, 556, 388 S.C. 394 (S.C. 2010). To state a claim for abuse of process, a plaintiff must establish facts sufficient to show an ulterior purpose by the defendant. White v. Boone, No. 4:09-cv-2768-JMC, 2012 WL 1067727, at *5 (D.S.C. Mar. 29, 2012) (citing Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, 567 S.E.2d 251, 253, 351 S.C. 65 (Ct.App.2002)). An ulterior purpose exists if the process is used to gain an objective not legitimate in the use of the process. Id. This court has stated that no liability exists where a defendant has done nothing more than carry out a process to its authorized conclusion, even though with bad intentions. Id. (emphasis added).
Plaintiff argues that there is a genuine issue of material fact that exists as to whether Defendant Delaney had a “legitimate” use of the process, that is, whether he was seeking to punish criminal wrongdoing. Plaintiff's support for this contention is that when confronted by Sgt. Utley, Defendant Delaney agreed with him that Plaintiff did not evidence impairment during the field sobriety tests, yet his report indicated otherwise. The undersigned disagrees this establishes a genuine issue of material fact as to whether an abuse of process exists.
Plaintiff provides no evidence of an ulterior purpose whatsoever on the part of Defendant Delaney. Within his Complaint, Plaintiff alleges the ulterior purpose was to embarrass Plaintiff and injure his reputation. ECF No. 1-1 at 10. However, the record is devoid of any facts to establish such a purpose. The court has the evidence of record before it, including a video of the incident in question. While Defendant Delaney may have failed to perform his job in a reasonable manner, Plaintiff has offered no evidence and no explanation as to what Defendant Delaney's ulterior motive could have been to effectuate Plaintiff's arrest. Further, South Carolina courts have held that the alleged willful act in this case, an alleged illegal arrest, does not give rise to an abuse of process claim. Huggins v. Winn-Dixie Greenville, Inc., 153 S.E.2d 693, 697, 249 S.C. 206 (S.C. 1967). Accordingly, for the reasons outlined above the undersigned recommends granting Defendant Delaney and Defendant SCDPS summary judgment as to this claim.
4. Assault and Battery
Defendants argue that summary judgment is appropriate as to Plaintiff's assault and battery claims. South Carolina law defines the tort of assault as “an attempt or offer, with force or violence, to inflict bodily harm on another or engage in some offensive conduct.” Mellen v. Lane, 659 S.E.3d 236, 244, 377 S.C. 261 (S.C. Ct. App. 2008). The elements include: (1) conduct of the defendant which places the plaintiff in (2) reasonable fear of bodily harm.” Id. South Carolina law defines a battery as “the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of degree. ” Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995). Moreover, in Roberts, the court determined that when a deputy uses “force greater than is reasonably necessary under the circumstances” the governmental agency may be liable for battery. Id. at 671 -72 & n. 2. Defendant Delaney argues that Plaintiff's claim appears to be based solely on the act of placing him under arrest, and because Plaintiff has failed to provide any evidence that his arrest was not otherwise conducted with the minimal amount of force necessary, he is entitled to summary judgment as to this claim. Defendant SCDPS looks to the allegations within the Complaint, wherein Plaintiff alleged he had a “reasonable apprehension and fear of being struck, groped, handcuffed and searched” and that Defendant Delaney made physical contact with Plaintiff “subjecting him to an unlawful arrest.” See ECF No. 1-1 at 11-12.
In his response, Plaintiff alleges that his assault and battery claims are based upon the following testimony by Plaintiff himself: (1) that Defendant Delaney kept trying to “force different tests upon him, including a knuckle test with the handcuffs;” (2) that he was “drug” into jail and he was “hit” by Defendant Delaney while in the breathalyzer room; and (3) that three or four officers, including Delaney, hit him and kicked him while in custody. See Pl.'s Br. at 23, ECF No. 52; see also ECF No. 53; See McDowell Dep. 143-145. Defendants point out, and the undersigned readily acknowledges that Plaintiff did not allege with specificity these egregious facts within his Complaint. They appear, for the first time, within Plaintiff's deposition. Nonetheless, at this stage in the litigation, Plaintiff asserts that Defendant Delaney, as well as other officers, hit and kicked him while he was detained or otherwise in custody. Defendant Delaney states in his affidavit that at no time while Plaintiff was in custody did he strike or kick Plaintiff. See Delaney Aff., ¶ 11. The video evidence provided to the court does not affirmatively establish that Plaintiff was struck during the roadside investigation or while he was waiting for his breathalyzer. However, aside from Plaintiff's testimony, Sgt. Utley's memorandum notes that Defendant Delaney turned off the camera prior to capturing any the alleged refusal of Plaintiff on camera. See Exhibit C at 4, ECF No. 52-3. Further, this memorandum indicates that there was a heated discussion in the sallyport between Plaintiff and Defendant Delaney, necessitating additional personnel to assist. See Exhibit C at 4. Viewing the facts in a light most favorable to Plaintiff, the undersigned finds that there is sufficient evidence in the record to raise a genuine issue of material fact supporting Plaintiff's assault and battery claims and recommends the court deny summary judgment on this ground.
5. Negligence/Gross Negligence
Defendant Delaney argues that Plaintiff's negligence/gross negligence claim fails as a matter of law because Plaintiff's only allegation that Defendant Delaney acted with negligence is that he arrested him without probable cause. Defendant Delaney argues this claim is not viable because it “is indistinguishable from his malicious prosecution claim.” See Seabrook v. Town of Mt. Pleasant, 853 S.E.2d 508, 510, 432 S.C. 441 (S.C. Ct. App. 2020). Plaintiff argues that in his Complaint, he alleges Defendant Delaney was “grossly negligent” with respect to the testing of the “pill” found in Plaintiff's possession, which was the basis for the drug charge. See Pl.'s Br. at 23, ECF No. 52. Plaintiff misstates the allegations supporting his negligence/gross negligence claim. The negligent conduct identified in the Complaint was the prosecution of Plaintiff for these charges when it was evident he was “not guilty of those charges,” and the Defendants had no “underlying reason to attempt to effectuate an arrest.” See ECF No. 1-1 at 7. In any event the SCTCA exception to the waiver of governmental immunity based on an employee's malice or intent to harm is not applicable where the alleged tort does not include an element of “intent to harm.” Beaufort v. Thompson, No. 2:20-cv-01197, 2021 WL 11132800, at *4 (D.S.C. 2021). In other words, Plaintiff cannot plausibly allege malice or intent to harm with respect to his claims of negligence/gross negligence because those claims lack the requisite element of the intent to harm. Id. In Beaufort, like the present case, the plaintiff alleged the defendant acted with malice, while also bringing a negligence/gross negligence claim. Ultimately, the court stated that the plaintiff's “sole remedy for his negligence/gross negligence claim is under the SCTCA, and he may not assert the same in federal court against any state employee in his or her individual capacity.” Id. Accordingly, the undersigned recommends dismissing this claim against Defendant Delaney.
As to Defendant SCDPS, it argues that Plaintiff's negligence claim fails because Plaintiff has failed to establish the breach of any recognized duty. While Plaintiff argues that there is a jury question as to whether Defendant Delaney was negligent in his investigation and law enforcement performance, he really argues the applicability of his gross negligence claim. See Pl.'s Br. at 18-19, ECF No. 53. Defendant SCDPS argues that South Carolina law does not recognize a cause of action for negligent arrest or negligent performance of a criminal investigation. See Turner v. Taylor, No. 7:09-cv-02858-JMC, 2011 WL 3794086, at *8-9 (D.S.C. Aug. 25, 2011) (explaining that police owe their duties to the public at large, and not to individuals). However, in Newkirk, the court distinguished between the “public duty rule,” which relies upon a statutory duty, versus a legal duty arising from “special circumstances.” 240 F.Supp. at 437-438. Newkirk involved an officer who effectuated a roadside traffic stop. The court reasoned that because the officer chose to effectuate a stop and place the plaintiff under his control, preventing the plaintiff from declining or terminating the encounter, the officer created special circumstances giving rise to a duty of care was owed to the plaintiff. Id. at 438. As to the exception provided for in S.C. Code Ann. § 15-78-60(5), that is that a government entity is not liable for loss resulting from the exercise of discretion or judgment by the government employee, this court has previously stated that this is an affirmative defense to be proved at trial. Perez v. City of Charleston Police Dep't., No. 2:16-cv-3677-DCN-BM, 2019 WL 5699055 at *8 (D.S.C. May 30, 2019). However, the SCTCA provides that “a governmental entity is not liable for a loss resulting from responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any . . . prisoner, inmate, or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner. S.C. Code Ann. § 15-78-60(25). This court has previously determined that, “as it relates to the ‘supervision, protection, control, confinement, or custody'” of an individual, SC Code Ann. § 15-78-60(25) bars any simple negligence claim. S.H. Bd. of Trustees of Colleton Cty. Sch. Dist., No. 2:22-cv-243-RMG, 2022 WL 2276575, at *6 (D.S.C. June 22, 2022). Here, Plaintiff's allegations of negligence relate to Defendant Delaney's investigation, arrest, and law enforcement performance of Plaintiff, as well as the alleged failure to properly supervise Defendant Delaney. The undersigned therefore recommends granting Defendant SCDPS summary judgment as any simple negligence claim.
With respect to Plaintiff's gross negligence claim, “gross negligence is the intentional conscious failure to do something which is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. It is the failure to exercise slight care.” Jinks v. Richland Cty., 585 S.E.2d 281, 283, 355 S.C. 341 (S.C. 2003). The elements of gross negligence include: (1) a duty of care owed to the plaintiff by defendant; (2) a breach of that duty by a grossly negligent act or omission; and (3) damages proximately resulting from the beach of duty. See Cockrell v. Lexington Cty. Sch. Dist. One., No. 3:11-cv-2042-CMC, 2011 WL 5554811, at *5 (D.S.C. Nov. 15, 2011). Gross negligence is a mixed question of law and fact and should be presented to a trier of fact unless the evidence supports but one reasonable inference. Bass v. S.C. Dep't. of Soc. Servs., 780 S.E.2d 252, 259, 414 S.C. 558 (S.C. 2015). Defendant SCDPS does not provide any specific argument as to why Plaintiff's gross negligence claim is subject to summary judgment. Further, Plaintiff argues that Defendant Delaney was grossly negligent in his handling of evidence, specifically the pill found in Plaintiff's truck, as well as his administration of the field sobriety tests. Accordingly, the undersigned finds that there is a genuine issue of material fact as to Plaintiff's gross negligence claim against Defendant SCDPS and would therefore deny summary judgment as to this claim.
C. Punitive Damages and Attorney's Fees
As to punitive damages and attorney's fees, the undersigned has previously determined that Plaintiff may not seek punitive damages against Defendant SCDPS under any remaining state law claims. ECF No. 21 at 2.Defendant Delaney asserts that punitive damages are improper under the SCTCA against him, as well. He argues that the SCTCA allows for the recovery of attorney's fees only as “a sanction for filing frivolous pleadings or motions.” Knoke v. S.C. Dep't of Parks, Recreation & Tourism, 478 S.E.2d 256, 260, 324 S.C. 136 (S.C. 1996). Here, he argues that there has been no such allegation that the recovery of attorney's fees is for this purpose. Plaintiff does not provide a substantive response, and the undersigned agrees that no such allegation has been made. The undersigned agrees that the SCTCA only allows for the recovery of attorney's fees as outlined above; however, the undersigned makes no recommendation at this time regarding the applicability of this provision to the claims brought against Defendant Delaney.
The SCTCA states that “[n]o award for damages under this chapter shall include punitive or exemplary damages.” S.C. Code Ann § 15-78-120(b). Should this order be read as excluding punitive damages as to only the dismissed state law claims against SCDPS, the undersigned recommends finding that the SCTCA's bar would apply to any state law claims brought against SCDPS.
Defendant Delaney further argues that the SCTCA prohibits an award of punitive damages. The SCTCA provides that “[n]o award for damages under this chapter shall include punitive or exemplary damages.” S.C. Code Ann. § 15-78-120(b); see also McCoy v. City of Columbia, 929 F.Supp.2d 541, 568 (D.S.C. March 11, 2013) (explaining that an officer was entitled to immunity under the SCTCA because there was no evidence that his actions were outside the scope of his employment or constituted actual fraud, actual malice, or the intent to harm, and therefore punitive damages were excluded). Because there is a question of whether Defendant Delaney was acting with malice or intent to harm, the undersigned finds the question of a bar on punitive damages as to Defendant Delaney to be premature.
IV. Recommendation
Based on the foregoing, it is recommended that Defendant Delaney's Motion for Summary Judgment be granted as to Plaintiff's negligence, abuse of process and negligent infliction of emotional distress claims, as well as any claim brought pursuant to the Eighth Amendment, but denied as to Plaintiff's Fourth Amendment claim brought pursuant to § 1983, as well as Plaintiff's state law claims for false arrest/false imprisonment, malicious prosecution, and assault and battery. ECF No. 44. The undersigned recommends that Defendant SCDPS's Motion for Summary Judgment be granted as to Plaintiff's malicious prosecution, abuse of process claim, and any simple negligence claim, but denied as to Plaintiff's false arrest/false imprisonment claim, his assault and battery claim, and his gross negligence claim. ECF No. 46.
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
Post Office Box 2317
Florence, South Carolina 29503
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).