Opinion
C. A. 4:22-cv-02312-JD-KDW
07-31-2023
RALPH WILSON, JR., personally and as Agent/Owner/Operator of Ralph Wilson Law PC d/b/a Ralph Wilson Law Firm LLC, v. SOUTH CAROLINA LAW ENFORCEMENT DIVISION; ASHLEY JOLDA, individually and as an employee of South Carolina Law Enforcement Division; KEVIN STRICKLAND, as an employee of South Carolina Law Enforcement Division; HORRY COUNTY CLERK OF COURT; KEVIN BRACKETT, in his official capacity as Sixteenth Circuit Solicitor; MYRTLE BEACH POLICE DEPARTMENT; AMY PROCK, as Chief of Myrtle Beach Police Department; JARRED MACKIN, as an employee of Myrtle Beach Police Department; S.M. FULLWOOD, as an employee of Myrtle Beach Police Department; MATHEW CHIVATTONI, as an employee of Myrtle Beach Police Department; M.S. PAITSEL, as an employee of Myrtle Beach Police Department; S. CLOTHIER, as an employee of Myrtle Beach Police Department; B. DEVOID, as an employee of Myrtle Beach Police Department; L. COOK, as an employee of Myrtle Beach Police Department; OFFICER SHANNON, as an employee of Myrtle Beach Police Department; GRAY MEDIA GROUP, INC. d/b/a GRAY TELEVISION, INC. d/b/a WMBF; GRAY MEDIA GROUP, INC. d/b/a GRAY TELEVISION, INC. d/b/a WIS; SUN NEWS; FITSNEWS, LLC; SINCLAIR BROADCAST GROUP, INC. d/b/a WPDE; and MYRTLEBEACHSC NEWS; Defendants.
REPORT AND RECOMMENDATION (DEFENDANTS SLED, JOLDA, AND STRICKLAND)
Kaymani D. West, United States Magistrate Judge.
Ralph Wilson, Jr., personally and as agent/owner/operator of Ralph Wilson Law PC d/b/a Ralph Wilson Jr. Law Firm., LLC (“Plaintiff”)initially filed this lawsuit against several Defendants on May 31, 2022 in the Horry County Court of Common Pleas. This case was subsequently removed to federal court on July 19, 2022. ECF No. 1. Plaintiff Wilson, himself an attorney, brings several causes of action against the Defendants named in this lawsuit. On September 16, 2022, Defendants South Carolina Law Enforcement Division (“SLED”), Ashley Jolda, and Kevin Strickland (collectively, the “SLED Defendants”) filed a Motion to Dismiss Plaintiff's Complaint. ECF No. 27. On October 14, 2022, Plaintiff filed a Response to the Motion. ECF No. 42. On October 28, 2022, the SLED Defendants filed a Reply. ECF No. 55. 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 the SLED Defendants' Motion is dispositive, the undersigned enters this Report and Recommendation (the “R&R”) for the district judge's consideration.
In the Caption of the Complaint, it appears to only reference one Plaintiff. However, at times throughout the pleadings Plaintiff is referred to in the plural as “Plaintiffs.” The undersigned will follow the caption reference and refer to Plaintiff in the singular form.
I. Factual Background
The heart of Plaintiff's Complaint concerns an altercation between Plaintiff and his wife on or about January 24, 2021, which ultimately resulted in Plaintiff entering a no contest plea for charges stemming from the interaction. As alleged in the Complaint, on January 24, 2021, Defendants Mackin, Chivattoni, Fullwood, Paitsel, Clothier, Cook, Shannon and Defendant Myrtle Beach Police Department (“MBPD”) responded to a third-party, non-witness call received regarding a potential domestic altercation in Plaintiff Wilson's neighborhood. ECF No. 1-1 at 10.
Defendants Mackin, Chivattoni, Fullwood, Paitsel, Clothier, Cook, Shannon are all alleged to be employees/officers with the Myrtle Beach Police Department. ECF No. 1-1 at 6-7. Plaintiff alleges Defendant Clothier spoke with Plaintiff's wife, Jessica Wilson (“Ms. Wilson”), and let her know that Defendant Ashley Jolda was on her way to the scene. ECF No. 1-1 at 10. Plaintiff alleges Defendant Clothier noted that Jessica Wilson “appeared to be pleased she was coming,” apparently referencing Defendant Jolda. ECF No. 1-1 at 10. Defendant Ashley Jolda is alleged to be an officer with Defendant South Carolina Law Enforcement Division (“SLED”). ECF No. 1-1 at 5. Plaintiff alleges Ms. Wilson told Defendants Mackin and Fullwood that Plaintiff punched her, threw water on her, and took her work cell phone. ECF No. 1-1 at 10. Plaintiff alleges Ms. Wilson informed these Defendants that their children heard, but did not see, the alleged altercation. Id. Plaintiff alleges the children likewise told Defendant Fullwood that that they did not see anything and were not in the room, purportedly where the altercation occurred. Id. Plaintiff alleges that Defendants can be heard on a video discussing whether “two black dots” on Ms. Wilson's lips were injuries sustained as a result of an altercation with Plaintiff or the result of Botox. Id. Plaintiff alleges Ms. Wilson refused medical attention. Id.
Plaintiff alleges that Defendant Jolda arrived after Defendant MBPD officers spoke to and obtained video and written statements from Ms. Wilson. Id. at 11. Plaintiff alleges after speaking with Ms. Wilson for approximately 15 minutes, Defendant Jolda made the decision to arrest Plaintiff. Id. Plaintiff alleges Defendant Jolda accompanied Defendants Mackin, Devoid, Cook and Chivattoni to Plaintiff 's residence, wherein she informed these officers that Plaintiff would be placed under arrest, despite the fact that Plaintiff alleges she failed to ask him his version of events or investigate the residence and obtain evidence. Id. Plaintiff alleges at the time of his arrest he was in possession of video evidence that contradicted Ms. Wilson's statement. Id. Plaintiff alleges Defendant Jolda met with Ms. Wilson at the residence and recorded a video interview of both her and her two children. Id. Plaintiff alleges Defendant Jolda appeared to have difficulty seeing any alleged injuries on Ms. Wilson. Id. at 11-12. Plaintiff alleges that Defendants SLED, Jolda, MBPD, Prock, Mackin, Fullwood, Chivattoni, Devoid, Clothier, and Cook produced photographs with “a color profile mismatch,” and used a non-functioning printer causing banding issues. Id. at 12.
Plaintiff alleges that Ms. Wilson informed Defendant Jolda that she had access to a button in her laundry room that would contact police for help, as well as a landline and a second cell phone. Id. Plaintiff alleges Ms. Wilson told MBPD Officer Shannon and Defendant Jolda that her children heard the altercation but were not in the room. Id. Plaintiff alleges one minor child told Defendant Jolda that she was upstairs, heard something, and came down to sit with her sister on the couch when she heard her parents fighting. Id. Plaintiff alleges this minor child told Defendant Jolda she had not seen physical arguments between her mother and father. Id. at 13. Plaintiff alleges the other minor child told Defendant Jolda she heard something but did not look. Id. The undersigned notes that within Plaintiff's Complaint, there are references to video interviews and places within the recording where these alleged statements were made; however, there was no transcript or video exhibit included with the Complaint.
Plaintiff alleges that Ms. Wilson informed Defendant Jolda that Plaintiff was considering running for chief prosecutor for Horry and Georgetown County, which Plaintiff alleges was then relayed to the Horry County Solicitor's Office. Id. Plaintiff alleges Defendant Jolda consulted with Fifteenth Circuit Solicitor Jimmy Richardson, II,and/or one of his agents or employees about procuring a warrant. Id. Plaintiff alleges Defendant Jolda presented an arrest warrant for a domestic violence charge. Id. Plaintiff alleges statements made within this arrest warrant were false and made deliberately by Defendant Jolda knowing them to be false or made with reckless disregard for the truth. Id. at 14. Plaintiff alleges the magistrate judge relied upon false statements within the arrest warrant to charge Plaintiff with domestic violence in the first degree. Id. Plaintiff alleges Defendant Jolda served the warrant for domestic violence on Plaintiff on January 25, 2021 at J. Reuben Long Detention Center. Id. Plaintiff further alleges Defendant Jolda produced false statements and compromised photographs to obtain this warrant. Id. Plaintiff alleges Defendant SLED issued a media release that included a copy of this search warrant containing the allegedly false statements to the news media. Id. Plaintiff alleges news outlets, relying upon Defendant Jolda's statements and Defendant SLED's media release, portrayed Plaintiff as a violent criminal who allegedly attacked a woman in front of her children. Id. at 15. Plaintiff alleges Defendant WPDE published an article accusing Plaintiff of waterboarding. Id. Plaintiff alleges the news media Defendants published online articles disseminating the false allegations contained in the arrest warrant. Id. at 15-16.
Jimmy Richardson, II, was initially named as a Defendant but dismissed from this lawsuit by a Stipulation of Dismissal on August 24, 2022. ECF No. 11.
Plaintiff includes as a quote information from the arrest warrant in the body of his Complaint. ECF No. 1-1 at 13. Within the quoted portion of the arrest warrant, Defendant Jolda allegedly indicated that “[t]his affiant observed physical injuries on the victim consistent with an altercation. All of these acts occurred in front of the defendant's child and child.” Id.
Plaintiff alleges that he was placed on interim suspension from the practice of law by the South Carolina Supreme Court on February 1, 2021, which Plaintiff alleges was as a result of the arrest and allegations contained in the warrant. Id. at 16. Plaintiff alleges he and his practice Wilson PC lost contracts with SCCID, as well as other clientele, including corporate clients. Id. Plaintiff alleges he had to remove his law firm's media and advertisements, and he alleges he was deprived of earning income for over a year. Plaintiff alleges Defendant Strickland, acting is his official capacity under SLED, made inappropriate comments to Plaintiff's former clients and to another client of the firm regarding his arrest. Id.
Upon information and belief, he is referring to the South Carolina Commission on Indigent Defense.
Plaintiff alleges that on July 21, 2021, an indictment on the lesser included charge of domestic violence in the second degree was presented to the grand jury. Id. at 17.Plaintiff alleges Defendant Jolda produced false statements and compromised photographs to assist in the prosecution of Plaintiff. Id. Plaintiff alleges the grand jury, relying on Defendant Jolda's false statements, indicted Plaintiff. Plaintiff alleges that on December 6, 2021, he pled no contest to simple assault “with substantially different facts” than the ones presented by Defendant Jolda. Id. Plaintiff alleges he was unable to work and earn a living from January 24, 2021 through February 7, 2022. Id. at 18. Plaintiff alleges because of the misconduct and failure to investigate, Plaintiff suffered emotional and monetary damages. Id. Plaintiff alleges he has lost income as a result of the publishing of untrue facts about him, and he alleges he has lost good will and reputation within the community. Id.
Plaintiff alleges in the Complaint the factual allegations contained within the indictment included that Plaintiff Wilson “did offer or attempt to cause physical harm or injury to said household members with apparent present ability under circumstances reasonably creating fear of imminent peril. In addition, the defendant committed the offense in the presence of, or while being perceived by, a minor and/or the defendant committed the offense while using physical force, to block the victim's access to a cell phone . . . for the purpose of preventing, obstructing or interfering with the victim's efforts” to report a crime. ECF No. 1-1 at 17.
II. Standard of Review
The SLED Defendants have moved to dismiss this action based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support [the legal conclusion].” Young v. City of Mount Rainier, 238 F.3d 567, 577 (4th Cir. 2001). Courts are required to construe a complaint liberally and presume all factual allegations within the complaint are true, and all reasonable inferences made in favor of the non-moving party. Hishon v. King, 467 U.S. 69, 73 (1984). A motion to dismiss should not be granted unless it appears with certainty that the plaintiff would be entitled to no relief under any circumstances which could be proved to support his or her position. Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989).
The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court need not accept as true “unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider “documents incorporated into the complaint by reference and matters of which a court may take judicial notice.” Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
III. Analysis
Plaintiff brings twenty-two separate causes of action against the SLED Defendants, including claims brought pursuant to § 1983, negligence claims, defamation claims, abuse of process, a “vicarious liability” claim, a tortious interference claim, and a civil conspiracy claim. Specifically, Plaintiffs bring twenty causes of action against Defendant SLED, seventeen causes of action against Defendant Jolda, and nine causes of action against Defendant Strickland. The SLED Defendants raise three arguments to these claims: (1) Plaintiff Wilson is collaterally estopped from bringing these claims due to the entry of his plea in the underlying criminal matter; (2) the claims fail on the merits; or (3) the claims are barred as a matter of law. ECF No. 27; Defs.' Br. at 9. In so arguing, the SLED Defendants submitted several exhibits to their pending Motion to Dismiss. These exhibits include: (1) video footage of the altercation discussed in the Complaint; (2) 9-1-1 audio from the day of the altercation; (3) photographs; (4) the arrest warrant; (5) the press release referenced in the Complaint; and (6) the transcript from Plaintiff Wilson's plea proceedings. ECF No. 27. The undersigned acknowledges that courts can consider documents that are incorporated into the Complaint by reference or matters of judicial notice; however, while some of the exhibits are referenced or incorporated within the Complaint, these documents are not referenced in their entirety and Plaintiff has not necessarily agreed to the authenticity of all of the documents or exhibits See E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Further, the court is mindful that it is not appropriate to consider documents that go beyond the allegations within the Complaint without having afforded the parties the opportunity for discovery. Id. However, on December 13, 2022, in response to a motion filed by Defendants requesting the staying of deadlines in this case, Plaintiff expressly stated that he agreed to staying the deadlines, including discovery as it would be most judicially efficient pending the ruling on the outstanding dispositive motions. See ECF No. 69 at 2. Moreover, it is clear on the face of the Complaint that Plaintiff was afforded the opportunity to obtain the videos and photographs related to the investigation of the incident in question, as he either directly cites to them or refers to them in his Complaint. Accordingly, the undersigned declines to consider the exhibits in whole, except to the extent that the Complaint incorporates the documents by reference or they are otherwise integral to the Complaint.
Here it should be noted that “vicarious liability” is not itself a cause of action; rather, it is a theory under which tort may be premised with respect to allocating liability. See generally Pulte Home Corp. v. S & ME, Inc., No. 0:13-1746-CMC, 2013 WL 4875077, at *2 (D.S.C. Sept. 11, 2013) (explaining that vicarious liability is not an independent cause of action but instead a legal doctrine which may be relevant to a negligence claim). The undersigned recommends dismissing this claim against Defendant SLED because it is by itself not a separate cause of action, there is no respondeat superior liability under § 1983, and Plaintiff asserts more specific tort liability against this Defendant.
Nevertheless, throughout the course of responding to this Motion to Dismiss, Plaintiff continually requests the court allow for discovery in this case prior to ruling on the Motion, should the court decide to grant the Motion.
1. Sufficiency of the Federal Claims brought pursuant to § 1983
The SLED Defendants argue that Plaintiff fails to state allegations sufficient to support any of his § 1983 claims. Plaintiff alleges four § 1983 claims against the SLED and Defendant Jolda. The Complaint does not include any federal claims brought against Defendant Strickland. Plaintiff argues that he has articulated a sufficient basis for stating a claim as to each of these causes of action.
a. Claims 1 and 4: Fifth and Fourteenth Amendment Violation of Due Process
Plaintiff styled the first cause of action as being brought pursuant to the Fourth and Fourteenth Amendments. However, the substance of the first cause of action references the Fifth and Fourteenth Amendments.
In his first cause of action, Plaintiff alleges that Defendants SLED and Jolda violated Plaintiff Wilson's due process rights afforded under the Fifth and Fourteenth Amendments. Plaintiff alleges Defendant Jolda is liable for “failing to investigate” Ms. Wilson's claims of abuse prior to arresting him. ECF No. 1-1 at 20. Plaintiff alleges Defendant SLED is liable for “failing to enforce policies that require their agents and/or employees to investigate allegations prior to arresting individuals.” ECF No. 1-1 at 20. In his fourth cause of action, Plaintiff alleges that Defendants SLED and Jolda violated Plaintiff Wilson's due process rights by failing to investigate, unlawfully arresting him, unlawfully detaining him, and dissemination false information about him. ECF No. 1-1 at 26.
As an initial matter, the SLED Defendants argue that any claims based upon the Fifth Amendment due process clause must fail because it only applies to the federal government. See Dusenbury v. United States, 534 U.S. 161, 167 (2002); Starbuck v. Williamsburg James City Cty. School Board, 28 F.4th 529, 537 (4th Cir. 2022) (explaining the Fifth Amendment's Due Process Clause only applies to federal actors). Plaintiff does not respond to this argument. The undersigned agrees that the Fifth Amendment's Due Process Clause is not implicated in this case.
In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she “has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States,” and (2) “that the conduct complained of was committed by a person acting under color of state law.” Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). The SLED Defendants argue that claims brought pursuant to § 1983 premised upon allegations of false arrest, false imprisonment, or malicious prosecution are properly analyzed as violations of the Fourth Amendment. Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (noting that false arrest and false imprisonment claims are essentially claims alleging a seizure of the person in violation of the Fourth Amendment).
The Due Process Clause is “not the proper lens through which to evaluate law enforcement's pretrial missteps.” Safar v. Tingle, 859 F.3d 241, 245 (4th Cir. 2017). Instead, it is the Fourth Amendment which is the source of the constitutional protection against unreasonable seizures and arrests. Id. Further, negligent police failures to investigate do not violate the Fourteenth Amendment. Humbert v. O'Malley, No. CIV. WDQ-11-0440, 2014 WL 1266673, at *13 (D. Md. Mar. 25, 2014).
The SLED Defendants argue that Fourteenth Amendment Due Process claims are inapplicable as to § 1983 claims involving unlawful seizures and prosecutions. Plaintiff disagrees, but aside from providing the court the general law regarding substantive due process rights, he does not articulate a legal basis to refute the SLED Defendants' claims. Plaintiff's sole argument is that Defendant Jolda's alleged lies to the magistrate judge undoubtedly violate Plaintiff's substantive due process rights. In Plaintiff's first and fourth causes of action, he does not allege or otherwise allude to any conduct before the magistrate judge resulting in bringing that claim. Instead, Plaintiff's claim rests upon the alleged failure to investigate his wife's allegations at the scene of the incident.
The undersigned has carefully reviewed the allegations within Plaintiff's Complaint. He alleges that after the Myrtle Beach Police Department received a third-party phone call related to a “domestic altercation,” an officer contacted Defendant Jolda to respond to a secondary location. ECF No. 1-1 at 10. Plaintiff alleges within the Complaint that Defendant Jolda arrived after the Myrtle Beach Police officers spoke with Ms. Wilson, obtained video, and obtained written statements from Ms. Wilson. ECF No. 1-1 at 10. Plaintiff further alleges Defendant Jolda made the decision to arrest Plaintiff after speaking with Ms. Wilson for approximately fifteen minutes. ECF No. 1-1 at 11. In other words, Plaintiff alleges within his own Complaint that there was an investigation conducted upon receipt of the third-party call.
The undersigned finds Evans v. Chalmers instructive. In Evans, plaintiffs brought several causes of action, including both a malicious prosecution claim and a Fourteenth Amendment due process claim against several officers. 703 F.3d 636, 667 n. 2. (4th Cir. 2012). The Fourth Circuit explained in a footnote that the Due Process Clause is not a “catch-all” provision. Id. Like this case, where there is an amendment that provides explicit constitutional protection against government behavior, it is that amendment, and not the more generalized “notion of substantive due process” which is the guide to analyze such a claim. Id. Here, Plaintiff has not only brought due process claims, he has also alleged claims of false arrest and false imprisonment against the SLED Defendants (as well as a malicious prosecution claim against at least one other defendant). Further, in Hart v. City of Santee, this court rejected the argument there is a cognizable federal right to an adequate investigation for claims brought pursuant to § 1983. Hart v. City of Santee, No. 5:16-CV-03338-JMC, 2017 WL 3158779, at *4 (D.S.C. July 25, 2017) (explaining that the complaint, which alleged deprivation of a property interest in a plaintiff's potential civil claims based on the alleged failure of defendants to conduct an adequate investigation must be dismissed. In that case, the plaintiff brought suit against officers for failure to adequately conduct an investigation of a collision).
Similarly, Plaintiff maintains that the first cause of action is based on a “failure to investigate.” Aside from that, Plaintiff's Complaint contradicts this cause of action in that he specifies investigative measures taken in responding to the incident. Plaintiff also summarily alleges Defendant SLED failed to enforce policies requiring agents to investigate allegations prior to arresting individuals; however, the Complaint establishes that prior to his arrest, officers did investigate the third-party phone call. Accordingly, the undersigned recommends finding that that Plaintiff's generalized claims in his first and fourth cause of action should be dismissed.
Plaintiff alleges within this first cause of action, that he was in “possession of material evidence which contradicted Ms. Wilson's statement. ECF No. 1-1 at 21. He does not specify what evidence he refers to, and further, as provided for in his own Complaint, he later pled no contest to a lesser charge related to this incident.
b. False Arrest and Franks Violations
Plaintiff brings a Franks v. Delaware violation against Defendant Jolda in his second cause of action. He maintains as his third cause of action a § 1983 claim for false arrest. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court carved out a narrow exception to the rule that an accused is not entitled to challenge the veracity of a facially valid search warrant affidavit by way of a motion to suppress. Under Franks, an accused is entitled to an evidentiary hearing on the veracity of the statements contained within the affidavit. United States v. Pulley, 987 F.3d 370, 376 (4th Cir. 2021). A defendant may bring a Franks challenge when an affiant omits material facts from the affidavit. Id. To establish a Franks violation, one must prove that the affiant either intentionally or recklessly made a materially false statement, or that the affiant intentionally or recklessly omitted material information from the affidavit. Id.; see also U.S. v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (explaining that in Franks, the Supreme Court held that in certain narrowly defined circumstances, a defendant may attack a facially sufficient affidavit).
Defendants SLED and Jolda argue that because Plaintiff Wilson was arrested pursuant to a “facially valid warrant,” Plaintiff must show that Defendant Jolda acted deliberately or with a “reckless disregard for the truth[,] made material false statements in the warrant application, or omitted from that application ‘material facts with the intent to make, or with reckless disregard of whether they thereby made, the [application] misleading.'” Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 556 (4th Cir. 2017). Relatedly, the SLED Defendants argue that to establish a § 1983 claim for false arrest in this case, Plaintiff must necessarily establish a Franks violation, thereby making Plaintiff's second and third causes of action duplicative. The SLED Defendants further argue that Plaintiff cannot establish a Franks violation because even were the affidavit corrected, probable cause would still exist for Plaintiff Wilson's arrest. Defs.' Br. at 17.
The SLED Defendants further argue that video evidence contradicts Plaintiff's assertions. In so doing, the SLED Defendants argue that the evidence establishes or supports their version of events over Plaintiff's version of events. These videos were referenced in Plaintiff's Complaint. For example, the SLED Defendants argue that Plaintiff Wilson cannot dispute that, while there may have been a button in the laundry room to call police, allegedly taking his wife's phone prevented her from contacting the police in the most readily available format. Defs.' Br. at 20. The SLED Defendants further argue that evidence supports a finding that probable cause existed because the factors for CDV-first degree were present in the affidavit. Defs.' Br. at 21.
Plaintiff argues that but for the inaccuracies in the arrest warrant made by Defendant Jolda, probable cause would not have existed to arrest him. Pl.'s Br. at 14. Plaintiff contends that further discovery is warranted as to these allegations, particularly in the way of depositions, because it is his contention that the allegations within the warrant were based upon “lies perpetrated to the magistrate judge.” As alleged in the Complaint, Defendant Jolda presented an arrest warrant for the charge of domestic violence, first degree by asserting the following facts:
On January 24, 2021 at in the Myrtle Beach section of Horry County, one Ralph Wilson, Jr., did cause physical harm or injury to his . According to the victim's statement, the defendant hit her in the back of the head and face several times. He poured water on the victim and placed a pillow over her nose and mouth which impeded her air flow and had the substantial likelihood of causing moderate bodily injury or even severe bodily injury. The defendant also took the victim's cell phone and threw it into the backyard, which took away her access to call for help. This
affiant observed physical injuries on the victim consistent with an altercation. All of these acts occurred in front of the defendant's child and child.ECF No. 1-1 at 13. Plaintiff alleges that the following allegations were false, made with reckless disregard for the truth, and/ or omitted observations to the magistrate that were completely contrary to the finding of injuries on the victim: (1) the fact that the affiant observed physical injuries; (2) that defendant took the victim's cell phone and took her access for help; and (3) that the acts occurred in front of children. ECF No. 1-1 at 14. In the Complaint, Plaintiff further alleges that on July 21, 2021, an indictment of the lesser included charge of domestic violence, second degree was presented to the grand jury. ECF No. 1-1 at 17. It read:
The defendant, Ralph James Wilson, Jr. on or about on January 24, 2021 in Horry, County, South Carolina, did cause physical harm or injury to Jessica Wilson, a household member, or did offer or attempt to cause physical harm or injury to said household member with apparent present ability under circumstances reasonably creating fear of imminent peril. In addition, the defendant committed the offense in the presence of, or while being perceived by, a minor and/or the defendant committed the offense while using physical force, or threatened use of physical force, to block the victim's access to a cell phone, telephone, or electronic communication device for the purpose of preventing, obstructing, or interfering with the victim's efforts to (a) report a criminal offense, bodily injury, or property damage to a law enforcement agency, or (b) request an ambulance or emergency medical assistance from any law enforcement agency or emergency medical provider and/or while committing this offense, and/or the defendant impeded the victim's breathing or airflow, all in violation of Section 16-25-0020(c), Code of Laws of South Carolina.ECF No. 1-1 at 17. Plaintiff alleges Defendant Jolda produced false statements and photographs to assist in the prosecution of Plaintiff. Id.
The undersigned is tasked with reviewing the allegations in Plaintiff's Complaint to determine whether Plaintiff has sufficiently pled these causes of action. As far as the second cause of action (the Franks violation), Plaintiff alleges Defendant Jolda presented several false statements to the judge, had difficulties photographing the alleged injuries to the victim, failed to inform the magistrate judge that the victim had access to call for help, and falsely alleged the acts occurred “in front of” children. ECF No. 1-1 at 23-24. However, accepting all allegations as true within the Complaint, it is clear from Plaintiff's own allegations why these facts were put within the warrant. Further, as pointed out by the SLED Defendants, based on the allegations provided to Defendant Jolda and outlined in the Complaint, probable cause would still exist to arrest Plaintiff. This is true because the warrant still contained information sufficient to support an arrest under S.C. Code Ann. § 16-25-20. As pointed out by these Defendants, the statute provides that a person commits an actionable offense if he causes physical harm or injury to a person's own household member; or offers to attempt to cause physical harm and either the act is committed in the presence of or while being perceived by a minor; the offense is committed by impeding the victim's air flow; or the offense is committed using physical force that block a person's access to a phone with the purpose of preventing a request for medical assistance. Defs.' Br. at 18 (citing S.C. Code Ann. § 16-25-20(B)(5)(a), (d), and (e)). The allegations in the Complaint support that the altercation occurred “while being perceived by a minor.” See ECF No. 1-1 at 12-13.Probable cause is not a high bar and officers are not required to rule out a suspect's explanation of the facts in order to obtain a warrant. United States v. Blakeney, 949 F.3d 851, 859 (4th Cir. 2020). Therefore, the undersigned recommends granting the SLED Defendants' Motion to Dismiss on this ground.
Plaintiff does not allege in the Complaint anything about the allegation that the victim's air flow was impeded, which was part of the statement made by Defendant Jolda.
As to the false arrest claim, the undersigned recommends finding that based on the allegations within the Complaint, this claim must be dismissed against the SLED Defendants. Section 1983 clams premised on an alleged false arrest (or false imprisonment) are properly analyzed as an unreasonable seizure under the Fourth Amendment. Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001). This court has previously determined that a warrantless arrest is valid if the arresting officer has probable cause to believe the individual has committed an offense, and the officer's decision that probable cause is present is reviewed under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). Here, Plaintiff alleges there was no probable cause to find that Plaintiff Wilson had committed a crime at the time when he was arrested and further alleges Ms. Wilson was not a credible victim. ECF No. 1-1 at 25. He further alleges probable cause for the specific crime of domestic violence in the first degree did not exist, and he was therefore wrongfully arrested, taken into custody and wrongfully imprisoned by Defendants. ECF No. 1-1 at 25. However, a review of the allegations in his Complaint contradict his allegations. Plaintiff alleges that Ms. Wilson indicated Plaintiff had some sort of physical altercation with her. The Fourth Circuit has previously reasoned that it is reasonable for a police officer to base his belief in probable cause on a victim's reliable identification of his (or her) attacker. Torchinsky v. Siwinksi, 942 F.2d 257, 262 (4th Cir. 1991). At the time Plaintiff was arrested, the information known to the SLED Defendants as outlined in Plaintiff's Complaint sufficiently establishes that probable cause existed to arrest him for some crime, whether or not he ultimately pled to some lesser included charge. Accordingly, the undersigned recommends dismissing these claims for the reasons outlined above.
c. § 1983 Claims and Eleventh Amendment Immunity
The SLED Defendants next argue that any claims brought against them in their official capacity are barred by the Eleventh Amendment. 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). 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 SLED Defendants argue that they are arms of the State of South Carolina, therefore sovereign immunity bars these claims. Courts in this district have previously held that South Carolina agencies and officials cannot be sued in their official capacity under § 1983, even in cases where the case was removed to federal court. Beaufort v. Thompson, No. 2:20-cv-01197-DCN-MGB, 2021 WL 1085313 at *3 (D.S.C. March 22, 2021). The SLED Defendants had not appeared in this case until the case was removed to federal court and did not join the Notice of Removal. See ECF No. 1. Aside from that issue, 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). Defendant SLED and Defendant Jolda posit that they are state officials, and Plaintiff does not contest this point. Indeed, Plaintiff explicitly states that Defendant SLED is a “state entity created pursuant to the law of the State of South Carolina,” and that Defendant Jolda is an officer with SLED. ECF No. 1-1 at 5. Thus, Defendant SLED is a state entity and Defendant Jolda a state official, and therefore not a “person” within the meaning of 42 U.S.C. § 1983. Further, Plaintiff argues that as to the claims brought against Defendant Jolda, she can be sued in her official capacity for “prospective or injunctive relief.” However, Plaintiff has not alleged any such relief or claims against these Defendants. Accordingly, the undersigned recommends finding that Eleventh Amendment immunity applies to Plaintiff's claims against the SLED Defendants, to the extent any claims are brought against them in their official capacity. Therefore, should the court accept this recommendation, the federal causes of action against these Defendants would be dismissed in their entirety.
2. Sufficiency of the State Law Claims
a. Applicability of the South Carolina Tort Claims Act
The South Carolina Tort Claims Act (the “SCTCA”) is the exclusive civil remedy for any tort committed by a governmental entity, its employees, or its agents, except as provided for in Section 15-78-70(b). See S.C. Code Ann. § 15-78-20(b). Under § 15-78-20(b), if an employee of a governmental entity is acting outside of the scope of his or her official duties or his or her conduct constitutes actual fraud, actual malice, intent to harm or a crime involving moral turpitude, then the immunity afforded under the SCTCA will not apply. Stated another way, the SCTCA governs all tort claims against governmental entities and is the exclusive remedy available to a plaintiff suing that entity or its employees. Flateau v. Harrison, 584 S.E.2d 413, 416, 355 S.C. 197 (S.C. Ct. App. 2003). An employee of a governmental entity is immune for suit for tortious acts committed within the scope of his or her official duties. Id. Plaintiff alleges the following torts against the SLED Defendants: (1) false imprisonment; (2) negligence; (3) gross negligence; (4) negligence per se; (5) defamation; (6) defamation per se; (7) libel/libel per se; (8) slander; (9) abuse of process; (10) tortious interference with a contract; (11) intentional infliction of emotional distress (“IIED”); (12) negligent infliction of emotional distress; and (13) civil conspiracy. See ECF No. 1-1.
The SLED Defendants first argue that pursuant to the SCTCA, Plaintiffs' claims may only be properly brought against SLED as the agency, and not Defendants Jolda or Strickland. S.C. Code Ann. § 15-78-70(c). Thus, any state law tort claims against Defendants Jolda or Strickland should be dismissed. Next, they argue that the SCTCA expressly excluded an IIED claim from the definition of “loss” under the statute; therefore, this claim must be denied. S.C. Code Ann. § 15-78-30(f) (“loss . . . does not include the intentional infliction of emotional harm.”). The undersigned finds that the law is clear in this regard, and Plaintiff offers no argument that this code section does not apply. Accordingly, the undersigned recommends dismissing the IIED claim as a matter of law.
The SLED Defendants next argue that pursuant to the express terms of the SCTCA, “a governmental entity is not liable for a loss resulting from . . . execution, enforcement, or implementation of the orders of any court or execution, enforcement or lawful implementation of any process.” S.C. Code Ann. § 15-78-60(3). The SLED Defendants argue that this exception to the waiver of immunity applies. Plaintiff does not provide a substantive response to this argument. Similarly, the SLED Defendants further argue that pursuant to Section 15-78-60(4), a “governmental entity is not liable for a loss resulting from . . . adoption, enforcement, or compliance with any law or failure to adopt or enforce any law, whether valid or invalid, including, but not limited to, any charter, provision, ordinance, resolution, rule, regulation, or written policies.” S.C. Code Ann. § 15-78-60(4). The SLED Defendants further argue that S.C. Code Ann. § 15-78-60(20) applies, which provides that a governmental entity is not liable for a loss resulting from “an act or omission of another person other than an employee including but not limited to the criminal actions of third persons.” Finally, the SLED Defendants argue that pursuant to Section S.C. Code Ann. § 15-78-60(23), Plaintiff's state law claims are barred because this section establishes that, “a governmental entity is not liable for a loss resulting from . . . institution or prosecution of any judicial or administrative proceeding.” The SLED Defendants argue that Plaintiff's state law claims are all based upon Defendant Jolda's arrest of Plaintiff Wilson.
Plaintiff does not dispute that the SLED Defendants were acting within their scope of employment. Nor does he argue that any of these code sections should not apply. Instead, Plaintiff argues that “an argument may be presented showing this incident occurred in a manner that constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” Pl's. Br. at 33. Plaintiff further submits that “Defendant's intentional lies to the magistrate judge were done with malice and intended to harm Plaintiff” and “the acts were perjuries upon the court and a crime of moral turpitude.” Id. at 33-34. However, a review of the Complaint does not support such a finding. Accordingly, the undersigned recommends dismissing the state law claims against the SLED Defendants pursuant to the SCTCA. However, should the district court find the SCTCA inapplicable, the state tort law claims should be dismissed for the reasons stated below.
b. False Imprisonment
Plaintiff's false imprisonment claim as to Defendant Jolda is premised upon the allegation that she provided false information to secure an arrest warrant for Plaintiff for the purpose of causing his arrest and confinement. ECF No. 1-1 at 26. The SLED Defendants argue that this claim should be dismissed because he was arrested pursuant to a facially valid arrest warrant and because he pled no contest to a lesser included offense of the initial charges. Defs.' Br. at 27.
Under South Carolina law, the tort of false imprisonment is simply “a deprivation of a person's liberty without justification.” Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) The elements for false imprisonment include establishing that: (1) the defendant restrained the plaintiff; (2) the restraint was intentional; and (3) the restraint was unlawful. Id. Plaintiff Wilson argues that the arrest warrant was not valid, and the SLED Defendants lacked probable cause to arrest him. Plaintiff Wilson argues simply that Defendant Jolda perpetrated a fraud upon the court in order to obtain a “falsified” arrest warrant, and therefore dismissal of this cause of action is inappropriate. In Jackson v. City of Abbeville, the South Carolina Court of Appeals considered the question of whether the issue of probable cause is confined to the actual charges or whether “consideration of an uncharged offense” is appropriate. Jackson v. City of Abbeville, 623 S.E.2d 656, 658, 366 S.C. 662 (S.C. Ct. App. 2005). That court further stated that probable cause turns not on actual guilt or innocence but whether facts within an officer's knowledge would lead a reasonable person to believe the individual arrested was guilty of a crime. Id. The Jackson court ultimately determined that the police officer had probable cause to arrest the defendant for an uncharged offense. Id. at 660-61. Plaintiff readily admits within his Complaint that he pled no contest to simple assault. Further, Plaintiff alleges facts within his Complaint that clearly establish that the officers believed a crime had occurred. Accordingly, the undersigned recommends dismissing this cause of action against the SLED Defendants.
c. Negligence/Gross Negligence
Plaintiff brought a negligence and gross negligence claim against all three SLED Defendants. The SLED Defendants argue that these two causes of action are premised upon the failure of “all Defendants” to adhere to law enforcement policies to possess probable cause for an arrest, as well as to investigate allegations made against Plaintiff Wilson. The SLED Defendants argue that the South Carolina Court of Appeals has held that negligence (or gross negligence) cannot be premised upon an allegation that a person was arrested without probable cause. In Seabrook v. Town of Mt. Pleasant, the Court of Appeals stated that there is no viable claim for negligence or gross negligence based on the contention that officers negligently arrested someone without probable cause because that is indistinguishable from a malicious prosecution claim, 853 S.E.2d 508, 510, 432 S.C. 441 (S.C. Ct. App. 2020). Plaintiff responds that he alleges all Defendants owed a duty to Plaintiff in or more of the following ways: (1) not to violate Plaintiff's rights; (2) to fully investigate the allegations made; (3) to be truthful to tribunals; (4) to protect against perpetrating frauds upon the court; (5) to properly train employees; (6) to maintain policies and procedures on how to lawfully obtain arrest warrants; and (7) to investigate allegations of misconduct. Pl.'s Br. at 21. Plaintiff further states that the breach involved was “lying to the magistrate judge or allowing the lies to go uncorrected.” Pl.'s Br. at 21. Aside from the fact that some of the duties alleged are vague allegations, it is clear from the Complaint and from the duties set forth by Plaintiff that all allegations stem from Plaintiff's contention that Defendant Jolda did not properly follow up on Ms. Wilson's allegations, and instead included false claims in the arrest warrant and perpetrated those false claims to the magistrate, thereby lacking probable cause to arrest him. However, as pointed out by the SLED Defendants, South Carolina does not recognize such a claim. Accordingly, the undersigned recommends dismissing the negligence and gross negligence claims against the SLED Defendants.
d. Negligence Per Se
Plaintiff brought a negligence per se claim against all three SLED Defendants. The SLED Defendants argue that within Plaintiff's Complaint, he alleges the SLED Defendants violated two criminal statutes in an attempt to establish his negligence per se cause of action. The two criminal statutes cited are for the statute criminalizing perjury and the statute criminalizing making false statements under oath. The SLED Defendants state that the only allegation within the Complaint that could possibly give rise to this allegation is the allegation that Defendant Jolda made false statements in her affidavit. In the Response, Plaintiff cites generally to case law establishing the elements for negligence per se, as well as causation. However, in citing to the criminal statutes, Plaintiff ignores the SLED Defendants' assertion that the only Defendant alleged to have engaged in any conduct contemplated by that statute is Defendant Jolda. Further, to the undersigned's knowledge, Defendant Jolda has not been convicted of the criminal conduct set forth in the statutes cited by Plaintiff. Accordingly, the undersigned recommends dismissing this cause of action against the SLED Defendants for the reasons stated.
e. Negligent Supervision, Negligent Hiring and Negligent Retention
Plaintiff brought claims against Defendant SLED for negligent supervision, negligent hiring, and negligent retention.Defendant SLED responds that Plaintiff simply asserts a formulaic recitation of the elements of each claim but does not provide or reference any conduct on the part of SLED supporting any such violation. Specifically, Defendant SLED alleges that Plaintiff does not allege anywhere that it was foreseeable to SLED or that SLED had notice that either Defendants Strickland or Jolda somehow posed a risk to the public. In response, Plaintiff sets forth the standard for a negligent supervision claim, and further alleges Defendant SLED owed a duty of care to ensure their employees were properly trained and supervised.
This district has previously held that negligent training is merely a specific negligent supervision theory by another name. Holcombe v. Helena Chemical Co., 238 F.Supp.3d 767, 772 (D.S.C. Feb. 23, 2017).
A negligent hiring claim generally turns on two elements-knowledge of the employer and foreseeability of harm to third parties. Holcombe v. Helena Chemical Co., 238 F.Supp.3d 767, 770 (D.S.C. Feb. 23, 2017). The key question in a negligent training claim is whether the employer “knew or should have known” of the danger the employee posed to others. Id. at 773. Here, Plaintiff alleges Defendant SLED “knew or should have known” that the selection of these two employees created an undue risk of harm, and that it should have known of their “prior conduct.” ECF No. 1-1 at 32, 34. Plaintiff also alleges that Defendant SLED “knew or had reason to know of the ability” to control these two employees and provided the opportunity for them to cause harm. ECF No. 1-1 at 30. Plaintiff, however, provides no allegations regarding what alleged prior conduct would have put Defendant SLED on notice that these employees would engage in the alleged conduct that forms the basis of this lawsuit. Nor does Plaintiff allege any facts to suggest that Defendant SLED would have any knowledge that these employees would allegedly include false statements in an arrest warrant. Simply put, Plaintiff has simply provided a general recitation of the law concerning negligent hiring and training, without including or alleging facts on the part of Defendant SLED that any alleged conduct was foreseeable. See McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015). A plaintiff must include factual allegations that are sufficient to raise the right to relief above a speculative level. Id. In reviewing the allegations, the undersigned does not find that Plaintiff has stated plausible claims for relief under these grounds. Accordingly, the undersigned recommends dismissing these claims against Defendant SLED.
f. Defamation, Defamation Per Se, Libel/Libel Per Se, Slander
Within the Complaint, Plaintiff alleges several defamation claims against the SLED Defendants. These causes of actions stem from the facts that the SLED Defendants “knowingly, or with reckless disregard for the truth, published false statements alleging Plaintiff Wilson abused his wife in the presence of his minor children” and that Defendant SLED published the statements to third parties through a press release and arrest warrant, while Defendant Jolda provided the statements to third parties through an affidavit and warrant. ECF No. 1-1 at 35. As to Defendant Strickland, he allegedly published false statements about Plaintiff Wilson's arrest to a prior client and a current client of Wilson P.C. ECF No. 1-1 at 37. As to the defamation per se, Plaintiff alleges that Defendants SLED and Jolda “published” statements alleging the commission of a crime of moral turpitude.
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of a defendant's communications to others of a false message about a plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 508, 332 S.C. 502 (S.C. 1998). Under South Carolina law, the essential elements of a claim for defamation are: 1) a false and defamatory statement; 2) unprivileged publication to a third party by defendant; 3) fault on the part of the defendant publisher; and 4) actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. See Floyd v. WBTW, No. 4:06-cv-3120-RBH, 2007 WL 4458924, *2 (D.S.C. Dec. 17, 2007). The SLED Defendants argue that because the statements are true, they are not defamatory.
In reviewing the Complaint, the undersigned has first considered the press release, which was attached to the Motion to Dismiss. ECF No. 27-5. The press release contains no information beyond stating that he was arrested for allegedly causing harm to an individual during a domestic incident and provided what Plaintiff was charged with which is not a false statement, as evidenced within Plaintiff's Complaint. The undersigned finds, therefore, that any claims against Defendant SLED on this ground are subject to dismissal. As to Defendant Strickland, Plaintiff alleges he defamed him; however, the sole allegation against him is that while acting in an official capacity under SLED, he made “inappropriate statements” to a former client and a current client. This is insufficient to support finding that Plaintiff established a defamation claim against him. Elsewhere in the Complaint Plaintiff alleges Defendant Strickland “published” false statements about his arrest; however, Plaintiff Wilson was arrested. Thus, it is clear from the face of the Complaint that those statements are true. Further, simply alleging Defendant Strickland made “inappropriate” statements, and later saying they were “false” statements, without more, does not support finding that Plaintiff properly pled a claim for defamation or slander against Defendant Strickland.
The press release was specifically referenced in the Complaint. Moreover, it is a public record. Philips v. Pitt County Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining on a motion to dismiss the court may properly take notice of matters of public record).
Additionally, within the Complaint, Plaintiff alleges that the officers, specifically Defendant Jolda, at the scene were informed that the children “heard” the altercation, and that the incident occurred while Plaintiff was in a bedroom and the children were in the home, on the couch or in another room. ECF No. 1-1 at 12. Moreover, Plaintiff alleges in the Complaint that one of the minors stated that upon hearing “something,” she came downstairs to sit with her sister, and heard the fighting. Id. at 12-13. Plaintiff alleges the false statements include that the affiant observed physical injuries on the victim, however he also alleges that the officers could see “two black dots” on Ms. Wilson's lips (though he alleges they opined whether the injuries were related to a fight or to a medical procedure). Therefore, on the face of the Complaint, it is clear why the warrant indicated that Ms. Jolda saw “physical injuries” on Ms. Wilson, or at least this is not a false allegation. Second, Wilson alleges that the allegation in the warrant that Plaintiff took Ms. Wilson's cell phone, thereby blocking her access for help, is a statement that he earlier alleges was provided to the officers. See ECF No. 1-1 at 10. Finally, Plaintiff alleges that the allegation that these acts occurred in front of the children is false. However, in reading the Complaint it is clear that the children were in the home and heard the argument. Thus, because the statements contain truthful statements, as evidenced by the allegations in the Complaint, the undersigned recommends dismissing this cause of action as to the SLED Defendants.
g. Abuse of Process
The SLED Defendants allege Plaintiff cannot bring an abuse of process claim against them under the facts as alleged in the Complaint. Abuse of process has two essential elements: first, an ulterior purpose and second, a willful act in the use of process not proper in the regular conduct of the proceeding. Rycroft v. Gaddy, 314 S.E.2d 39, 43, 281 S.C. 119 (S.C. Ct. App. 1984). In Rycroft, the court reasoned that there is no liability under the tort of abuse of process when the process has been carried to its authorized conclusion, even with bad intentions. Id. at 44. In Response, Plaintiff focuses solely on Defendant Jolda's alleged conduct and summarily alleges that she had an ulterior purpose to remove Plaintiff Wilson from the practice of law. First, Plaintiff set forth the elements in his Complaint, but provides no allegations as to what ulterior purpose there was in arresting Plaintiff Wilson, aside from responding to a citizen's phone call and alleging that Defendant Jolda responded after being called to the scene. Second, Plaintiff sets forth no set of facts to support any allegation that the use of process was improper because it was unauthorized. A review of the Complaint reveals that Defendant Jolda did not seek to have him arrested; she was called to the scene. Further, simply alleging she had an ulterior purpose without any facts anywhere within the Complaint to establish any vague assertion as to what that purpose might include, beyond her job as a SLED officer, is insufficient. Accordingly, the undersigned recommends dismissing this claim as to all SLED Defendants.
h. Tortious Interference with a Contract
The SLED Defendants next argue that Plaintiff has failed to establish the necessary elements to establish a claim for tortious interference with a contract. The elements for a claim of tortious interference with a contract are: (1) the existence of a contract; (2) the defendant's knowledge of the contract; (3) intentional procurement of the contract's breach; (4) absence of justification; and (5) damages resulting therefrom. Johns v. Amtrust Underwriters, Inc., 996 F.Supp.2d 413, 420 (D.S.C. 2014) (citing DeBerry v. McCain, 274 S.E.2d 293, 296, 275 S.C. 569 (1981)). Plaintiff recites these elements in the Complaint but does not sufficiently plead or plausibly allege any set of facts suggesting any of these Defendants intentionally caused Plaintiff Wilson to breach any contract with his clients. Moreover, Plaintiff implies in the Complaint that it was his suspension from the practice of law, which was premised upon his own conduct, that caused any alleged “breach,” rather than any conduct on the part of the SLED Defendants. Moreover, while Plaintiff argues in the Response that Defendant Jolda alleged to have participated in conduct to have clients terminate services by obtaining a “false” arrest warrant, there is simply no allegation in the Complaint that this was the intention of the SLED Defendants. Therefore, the undersigned recommends dismissing this claim against the SLED Defendants.
i. Negligent Infliction of Emotional Distress
South Carolina courts have expressly limited claims for negligent infliction of emotional distress to claims of bystander liability. Alonso v. McAllister Towing of Charleston, Inc., 595 F.Supp.2d 645, 650 (D.S.C. 2009) (citing Doe v. Greenville County School Dist., 651 S.E.2d 305, 307, 375 S.C. 63 (S.C. 2007)). In order to prevail on such a claim, two of the elements include a showing that the negligence of the defendant caused death or physical injury to another, and the plaintiff bystander was in close proximately. Id. The SLED Defendants correctly point out that Plaintiff has not alleged that their actions caused any injury to another. Plaintiff does not respond to this argument. Accordingly, the undersigned recommends dismissing this claim.
j. Civil Conspiracy
To establish a claim for civil conspiracy under South Carolina law, a plaintiff must establish: (1) the combination or agreement of two or more persons; (2) to commit an unlawful act or a lawful act by unlawful means; (3) together with the commission of an overt act in furtherance of the agreement; and (4) damages proximately resulting to the plaintiff. Paradis v. Charleston Cty. School District, 861 S.E.2d 774, 780, 433 S.C. 562 (S.C. 2021). Because civil conspiracy is an intentional tort, an intent to harm “remains an inherent part of the analysis.” Paradis, 861 S.E.2d at 780, n.9.
Plaintiff alleges “Defendants all conspired to deprive Plaintiff Wilson of his rights and personally injure Plaintiff.” ECF No. 1-1 at 52. Further, Plaintiff alleges that after Plaintiff's arrest, Defendants conferred and agreed to engage in a conspiracy to cover up “the misconduct,” developed the conspiracy in order to protect themselves and injure Plaintiff and committed overt acts including failing to investigate the allegations (purportedly made by Ms. Wilson), and unlawfully arresting Plaintiff. ECF No. 1-1 at 52. Finally, Plaintiff alleges this plan included making false, defamatory statements about what occurred on January 24, 2021, including changing the allegations and presenting them to the grand jury, which resulted in damages to Plaintiff. Id.
The SLED Defendants argue that Plaintiff's claim must necessarily fail because Plaintiff's allegations are based upon the same allegedly wrongful acts underlying other claims and because Plaintiff's alleged damages result not from any civil conspiracy but from his own conduct, to which he pled no contest. Defs.' Br. at 39. Plaintiff responds that due to a civil conspiracy's covert and clandestine nature, additional discovery is needed to produce evidence of said conspiracy. Pl.'s Br. at 32. Plaintiff further alleges that the “acts between Jessica Wilson, Defendant Jolda, Defendant Prock, the Horry County Solicitor and others” would lead to proving a conspiracy claim.
This court has recently affirmed that in order to plead a civil conspiracy claim under South Carolina law, a plaintiff must plead an intent to harm. Jinks v. Sea Pines Resort, LLC, No. 9:21-CV-00138-DCN, 2021 WL 4711408, at *3 (D.S.C. Oct. 8, 2021). Plaintiff alleges that these Defendants “agreed to engage in a conspiracy . . to injure Mr. Wilson.” However, while Plaintiff properly alleges intent to harm, he fails to allege “additional facts in furtherance of the conspiracy separate and independent from other wrongful acts alleged in the complaint.” Jinks, 2021 WL 4711408, at *3. Plaintiff alleges that the conspiratorial acts include failing to investigate the allegations and unlawfully arresting Plaintiff, as well as coming up with a plan to cover up misconduct and make false, defamatory statements about him. ECF No. 1-1 at 52-53. However, in seeking to establish such a claim, “[w]here the particular acts charged as conspiracy are the same as those relied on as the tortious act or actionable wrong, plaintiff cannot recover damages for such act or wrong.” Id. (citing Todd v. S.C. Farm Bureau Mut. Ins. Co., 278 S.E.2d 607, 612, 276 S.C. 284 (S.C. 1981) overruled on other grounds by Paradis). Here, the act of failing to investigate forms the basis of a multitude of other claims, including false imprisonment and negligence. Further, the act of unlawfully arresting Plaintiff Wilson forms the basis of other claims including abuse of process, malicious prosecution. See Jinks, 2021 WL 4711408, at *4 (explaining that the allegations forming the basis of the plaintiff's civil conspiracy claim were specifically incorporated by reference into other causes of action, and that plaintiff failed to allege “a single independent and separate act taken by [the defendant] in furtherance of the alleged conspiracy that does not also serve as the bases for the other claims in the civil conspiracy cause of action.”). In Jinks, the court also specifically rejected the argument that the plaintiff could plead civil conspiracy as an alternative to her breach of contract and nuisance claims. Id. Thus, the undersigned recommends dismissal of Plaintiff's civil conspiracy claims.
While the undersigned is mindful that Plaintiff alleges he needs to conduct discovery to investigate this alleged civil conspiracy claim, Plaintiff expressly agreed to the staying of the discovery deadline pending the resolution of these motions.
3. Collateral Estoppel due to Plaintiff Wilson's Plea
According to the allegations in Plaintiff's Complaint, Plaintiff Wilson pled no contest to simple assault on December 6, 2021. ECF No. 1-1 at 17. The SLED Defendants argue that Plaintiff Wilson's plea acts to collaterally estop him from bringing these claims against them. Collateral estoppel, or issue preclusion, stops one party from re-litigating an issue that was previously decided in another action, regardless of whether the claims in the lawsuits are the same. State v. Hewins, 760 S.E.2d 814, 821, 409 S.C. 93 (S.C. 2014) (quoting Carolina Renewal, Inc. v. S.C. Dep't of Transp., 684 S.E.2d 779, 782, 385 S.C. 550 (S.C. Ct. App. 2009)). The SLED Defendants argue that, the plea of “no contest” to the underlying charges estops Plaintiff from bringing the claims he has brought in this suit. Plaintiff Wilson alleges in his Complaint that the facts underlying the simple assault plea were “substantially different” than the facts Plaintiff Wilson alleges were false or misleading in his Complaint. See ECF No. 1-1 at 17. Because the undersigned recommends dismissing this Complaint against these Defendants for the reasons outlined above, specifically that their only alleged conducted involved the initial investigation, the undersigned need not reach the issue of the collateral effect of Plaintiff's plea as to these Defendants.
4. Punitive Damages Claim
Finally, the SLED Defendants argue that any claim for punitive damages is barred by both federal and state law. 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). The SLED Defendants further argue that punitive damages pursuant to § 1983 against a governmental entity are barred as a matter of law. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981). Because the undersigned recommends dismissing the claims against the SLED Defendants, the undersigned recommends dismissing any request for punitive damages.
5. Hearing Request and Leave to Amend
The undersigned has considered Plaintiff's request for a hearing and leave to amend. Plaintiff argues that the SLED Defendants' Motion is more appropriately defined as one seeking summary judgment, arguing that no discovery has been conducted, and that Defendants have submitted evidence outside of the pleadings. Respectfully, a cursory review of Plaintiff's Complaint finds it full of references and snippets of the very same “court documents and video footage” that Plaintiff uses to support his own allegations within the Complaint. Obviously, what is good for the goose is good for the gander; Plaintiff cannot rely on referencing the video footage or cite to specific portions of documents but cry foul when Defendants reference the same. Moreover, the undersigned only considered what was integral to the Complaint and did not consider any evidence outside of those pleadings.
Plaintiff also seeks leave to amend the Complaint; though, he provides no suggested amendment. In any event, Plaintiff's Complaint was initially filed in state court on May 31, 2022, approximately a year and a half after the incident forming the basis of the Complaint and six months after Plaintiff Wilson's plea. ECF No. 1-1. Upon removal to federal court in July of 2022, the Scheduling Order that was entered set the deadline to amend pleadings for October 13, 2022. ECF No. 10. The SLED Defendants filed their Motion to Dismiss on September 16, 2022, approximately a month prior to the expiration of that deadline. ECF No. 27. Indeed, Plaintiff filed a Motion for Extension of Time to Respond to the Motion, as well as a Motion for Leave to File Excess Pages to respond to the Motion but did not file an amended pleading. Instead, Plaintiff filed a Response the day after the expiration of the deadline. Although leave to amend should be freely given when justice so requires, after the deadlines have passed which were set forth by a scheduling order, the good cause standard under Federal Rule of Civil Procedure 16 applies. RFT Mgmt. Co., LLC v. Powell, 607 Fed.Appx. 238, 242 (4th Cir. 2015). Here, the Complaint, approximately 50 pages in length, has been carefully considered, and several Defendants have spent considerable time and effort in responding to each of the 29 causes of action set forth in the Complaint. The undersigned does not find that Plaintiff has established good cause for allowing him, after providing substantive responses to each Motion to Dismiss, to get a second bite at the apple a year after the initial filing of this lawsuit. In any event, many of the causes of action are barred as a matter of law. Accordingly, the undersigned respectfully recommends denying Plaintiff's request to amend his Complaint at this stage in the litigation.
IV. Recommendation
For the reasons outlined above, the undersigned recommends granting the Motion to Dismiss. ECF No. 27. Further, as to any request by Plaintiff to hold a hearing or to seek leave to amend his Complaint, the undersigned recommends denying such a request for the reasons outlined above.
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).