Opinion
Civil Action No. 2:20-cv-00959-RMG-MGB
04-29-2020
Arkein Campbell, Plaintiff, v. City of North Charleston, Eddie Driggers, in his Official Capacity as Former Chief of Police of the North Charleston Police Department, and Katelyn Arnold, Defendants.
ORDER AND REPORT AND RECOMMENDATION
This action has been filed by Plaintiff pursuant to 42 U.S.C. § 1983 (known as the Civil Rights Act) and S.C. Code Ann. §§ 15-78-10 et seq. (known as the South Carolina Tort Claims Act, or "SCTCA"). This matter is before the Court upon Defendant's Partial Motion to Dismiss and Motion to Strike Certain Portions of the Complaint. (Dkt. No. 5.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., this matter has been assigned to the undersigned for all pretrial proceedings. For the reasons set forth below, the undersigned recommends that Defendant's Partial Motion to Dismiss (Dkt. No. 5) be granted, and orders that Defendant's Motion to Strike Certain Portions of the Complaint (Id.) be granted in part and denied in part.
BACKGROUND
On or around December 18, 2019, Plaintiff filed this action in the South Carolina Court of Common Pleas, Charleston County, alleging that North Charleston Police Department Officer Katelyn Arnold ("Officer Arnold") violated Plaintiff's Fourth and Fourteenth Amendment rights. Plaintiff claims that Officer Arnold used excessive force in the course of detaining him. Specifically, Plaintiff alleges that "[Officer Arnold] walked up to [him] as he was face down on the ground in handcuffs, initiated the drive stun mode on her [T]aser, and repeatedly tased [him]," causing him injury. (Dkt. No. 1-1 at 13.) Plaintiff further alleges that "[b]ecause of the inconsistent and undefined standards in Defendant NCPD's noncompliance and physical force policies on Taser use, as well as the failure of Defendant NCPD to properly train or supervise the use of said policies, Defendants City, NCPD, and Driggers facilitated and caused the Plaintiff's injuries . . . ." (Dkt. No. 1-1 at 14.) Plaintiff contends that Defendant City of North Charleston was deliberately indifferent to Officer Arnold's actions, in violation of 42 U.S.C. § 1983. Plaintiff also argues that certain acts and omissions relating to Officer Arnold's conduct violated the SCTCA.
The North Charleston Police Department (Defendant NCPD) was dismissed on March 10, 2020, after the parties agreed to remove this party as a defendant. (Dkt. Nos. 4; 7.)
On March 6, 2020, Defendants City of North Charleston ("the City") and North Charleston Police Department ("NCPD") removed this action to the United States District Court for the District of South Carolina pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1443. (Dkt. No. 1.) On March 10, 2020, the City filed a Partial Motion to Dismiss and Motion to Strike Certain Portions of the Complaint (Dkt. No. 5) and an Answer (Dkt. No. 6). In the Partial Motion to Dismiss and Motion to Strike Certain Portions of the Complaint, Defendant City requests that the Court dismiss Plaintiff's claims relating to Mr. Eddie Driggers in his individual capacity and Plaintiff's claims under the South Carolina Constitution. Defendant also asks the Court to strike paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 43, 44, 45, 46, 47, 48, 49 and the last sentence of paragraph 35 from the Complaint, claiming that these paragraphs are prejudicial to Defendant.
Defendant City filed an Amended Answer on March 23, 2020 (Dkt. No. 8) and Defendant Katelyn Arnold filed an Answer on April 2, 2020 (Dkt. No. 11). On April 15, 2020, Plaintiff filed a Response and Memorandum in Opposition to Defendant's Partial Motion to Dismiss and Motion to Strike Certain Portions of the Complaint, consenting to the Partial Motion to Dismiss and opposing the Motion to Strike Certain Portions of the Complaint on the ground that the contested portions of the Complaint are necessary for Plaintiff's deliberate indifference claim against the municipality. (Dkt. No. 12.) On April 16, 2020, Defendant Katelyn Arnold filed a Response in Support of Defendant City's Motion to Strike. (Dkt. No. 13). On April 17, 2020, Defendant City filed a Reply in Support of Motion to Strike Certain Portions of the Complaint (Dkt. No. 14), asserting that the contested statements in Plaintiff's Complaint are "not properly used for such a purpose" (Dkt. No. 14 at 1) and are "highly prejudicial" to Defendant (Dkt. No. 14 at 5). The motions before the Court have been fully briefed and are ripe for disposition.
LEGAL STANDARD
I. Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6), a "complaint must be dismissed if it does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are 'enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). "A plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). The Court need not accept the "legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
II. Motion to Strike
Rule 12(f) permits the Court to strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "'Immaterial' matter is that which has no essential or important relationship to the claim for relief, and 'impertinent' material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues." CTH 1 Caregiver v. Owens, 2012 WL 2572044, at *5 (D.S.C. July 2, 2012) (internal citations omitted). "'Scandalous' includes allegations that cast a cruelly derogatory light on a party to other persons." Id. "The granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety inasmuch as, once filed, pleadings generally are public documents and become generally available." See id. (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)).
Although the decision of whether to grant a motion to strike under Rule 12(f) is within the sound discretion of the court, the Fourth Circuit views Rule 12(f) motions with disfavor "because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic." Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); see also Commodity Futures Trading Comm'n v. Dupont, No. 8:16-CV-03258-TMC-JDA, 2017 WL 4465700, at *2 (D.S.C. Sept. 7, 2017), adopted, No. 8:16-CV-03258-TMC, 2017 WL 4418673 (D.S.C. Oct. 5, 2017). Thus, the Court should generally deny a Rule 12(f) motion "unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action." See Rosendall v. Voight, No. 4:17-CV-0821-BHH-TER, 2017 WL 9674476, at *4 (D.S.C. Sept. 11, 2017) (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)).
DISCUSSION
I. Motion to Dismiss
Defendant asks the Court to dismiss Plaintiff's claims relating to Mr. Driggers in his individual capacity. Defendant argues that these claims should be dismissed because "Plaintiff fails to allege any personal participation by Chief Driggers in the actions that serve as the basis for his § 1983 claims" and "personal participation . . . is a necessary element of a § 1983 claim against a government employee in his personal capacity." (Dkt. No. 5-1 at 2.) Defendant also asks the Court to dismiss Plaintiff's claims under the South Carolina Constitution because "South Carolina has no statutory equivalent to 42 U.S.C. § 1983 which gives rise to a private cause of action for money damages," and because "the state constitutional claims are barred by sovereign immunity." (Dkt. No. 5-1 at 3-4.) As such, Plaintiff has failed to state an actionable claim relating to Mr. Driggers in his individual capacity or under the South Carolina Constitution.
In Plaintiff's Response and Memorandum in Opposition to the Motion (Dkt. No. 12), Plaintiff consents to the dismissal of those claims. He states: "Plaintiff does not oppose the dismissal of any claims or the removal of any language suggesting claims against Mr. Driggers in his individual capacity. Plaintiff furthermore would consent to amending his Complaint to clarify and remove any language therein indicating claims based directly on the South Carolina Constitution as long as said agreement does not unreasonably extend to certain South Carolina Statutes . . . ." (Dkt. No. 12 at 1.) Because the aforementioned claims are insufficient and Plaintiff does not oppose their dismissal, the undersigned recommends that Defendant's Partial Motion to Dismiss be granted.
II. Motion to Strike
Defendant argues that Plaintiff must strike paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 43, 44, 45, 46, 47, 48, 49 and the last sentence of paragraph 35 from his Complaint because the statements are unnecessary and prejudicial to Defendant. (Dkt. No. 5-1 at 5-8.) Plaintiff argues that the statements are necessary for his claims against the municipality. Specifically, Plaintiff asserts that these statements help demonstrate a "longstanding and pervasive custom" of disproportionate Taser use on African-American individuals that results from the deliberate indifference of the municipality. (Dkt. No. 12 at 2-4.)
Defendant also seems to argue that the contested paragraphs should be stricken because they go beyond the "short and plain statement of the claim" required by Federal Rule of Civil Procedure 8(a) and do not meet the relevancy standards described in Federal Rules of Evidence 401 and 402. Fed. R. Civ. P. 8(a); Fed. R. E. 401-402. However, Federal Rule of Civil Procedure 12(f) outlines the applicable standard under which to evaluate Defendant's Motion to Strike Certain Portions of the Complaint. The Court has considered Defendant's Motion using that standard and, for the reasons set forth herein, orders that Defendant's Motion be granted in part and denied in part.
Generally, Defendant seems to misunderstand Plaintiff's justification for the paragraphs at issue. Plaintiff uses these paragraphs to show that Taser-related practices and policies were problematic in the past, that they remained problematic at the time of the incident, that Defendant knew of the alleged issues because of the incidents described in the Complaint, and that Defendant did not sufficiently act on that knowledge to resolve the alleged issues. In other words, Plaintiff uses the contested paragraphs to demonstrate the elements of Plaintiff's deliberate indifference claim against the municipality.
A. Paragraphs 25, 26, 27, 28 and 29 of the Complaint
Defendant first contends that paragraphs 25, 26, 27, 28 and 29 should be stricken from the Complaint because these paragraphs relate to "persons, employees and situations totally separate and apart from this matter . . . ." (Dkt. No. 5-1 at 5.) Further, Defendant argues that the paragraphs describe events that are "remote in time, having occurred 12 years and 10 years . . . prior to the incident alleged in the Complaint." (Id.) In response, Plaintiff asserts that these paragraphs "[lay] the groundwork for the elements required for a municipal liability claim, particularly for the purpose of showing that the City of [N]orth Charleston was on notice that its Officers were disproportionately subjecting African-American suspects to the use of force by Taser . . . ." (Dkt. No. 12 at 2.)
As mentioned above, the Court should generally deny a Rule 12(f) motion "unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action." See Rosendall, 2017 WL 9674476, at *4 (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)). The paragraphs at issue here describe statistics of Taser use by NCPD officers and reference lawsuits previously brought against NCPD for inappropriate Taser use. (Dkt. No. 1-1 at 7-8.) Specifically, paragraph 25 reports accusations that NCPD officers abused their use of Tasers. (Dkt. No. 1-1 at 7.) Paragraph 26 describes a Post and Courier statistic stating that NCPD officers used Tasers 201 times in an 18 month period and notes a statement from The Charleston Newspaper that NCPD officers used Tasers disproportionately on African-Americans. (Id.) Paragraphs 27, 28 and 29 briefly describe lawsuits brought against NCPD on behalf of Kip Black, Paula Pete and Brian Yates, respectively, for alleged Taser misuse by NCPD officers. (Dkt. No. 1-1 at 7-8.) As Plaintiff explains, the examples in these paragraphs demonstrate that the City was aware of past issues with NCPD policies and procedures relating to Tasers. Plaintiff is required to show that the City knew about previous Taser use issues within NCPD to establish his deliberate indifference claim. See Farmer v. Brennan, 511 U.S. 825, 839 (1994) (stating that deliberate indifference requires proof that the defendant "consciously disregard" a known risk); see also Anderson v. Kingsley, 877 F.3d 539, 541 (4th Cir. 2017) (holding that a jury instruction stating that deliberate indifference requires that defendants had actual knowledge of a substantial risk that the plaintiff would be injured and recklessly disregarded that risk by intentionally refusing or failing to take reasonable measures to deal with the risk was proper). Thus, these paragraphs are clearly related and logically connected to Plaintiff's claims.
While the Court understands that these paragraphs are unfavorable to Defendant, the Court notes that many of the statements in these paragraphs are already public record. Defendant contends that these paragraphs are "scandalous" and, therefore, prejudicial; however, granting a motion to strike scandalous material from a Complaint is partially motivated by "preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety inasmuch as, once filed, pleadings generally are public documents and become generally available." CTH 1 Caregiver, 2012 WL 2572044, at *5 (internal citations omitted) (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)). Further, the Complaint is not submitted to the jury as a matter of course. As such, the Court does not believe Defendant will be significantly prejudiced. See Rosendall, 2017 WL 9674476, at *4 (explaining that defendants' argument that allegations related to plaintiffs' claims poisoned the jury pool was not compelling since the complaint is not submitted to the jury and the jury pool is questioned about prior knowledge of the case prior to selection and striking, and noting that defendants' concerns about the introduction of the contested statements at trial would be more appropriately addressed through a motion in limine filed closer to trial).
B. Paragraphs 30, 31, 32, 33 and 34 of the Complaint
Defendant next asserts that paragraphs 30, 31, 32, 33 and 34 should be stricken from the Complaint because "they relate to the state of the department 7 years prior to the incident," and "Officer Arnold [was not] even employed by the City during this time period." (Dkt. No. 5-1 at 5.) Plaintiff contends that "these paragraphs and the facts and inferences [within them] support a longstanding custom of deliberate indifference pertaining to the City's failure to curb Constitutional misconduct in terms of [T]aser-use against African Americans," by showing a lack of "sufficiently well-defined policies regarding the use of Tasers" and a "failure to train officers on [appropriate Taser use]." (Dkt. No. 12 at 3.) Plaintiff explains that this "goes toward showing deliberate indifference." (Id.)
The paragraphs at issue here describe certain policies and reports relating to Taser use, as well as information on officer use of Tasers. Paragraph 30 describes NCPD's "noncompliance policy," which Plaintiff argues promotes unwarranted and excessive Taser use. (Dkt. No. 1-1 at 8.) Paragraphs 31 and 32 go on to explain that this unwarranted and excessive Taser use was promoted by affirmative decisions and omissions of the City and NCPD, creating a custom among NCPD officers. (Id.) Paragraph 33 notes a report issued by NCPD stating that Taser use was effective. (Dkt. No. 1-1 at 9.) Paragraph 34 explains that, despite this report, a committee recommended changes to NCPD's training and policies. (Id.) Paragraph 34 then asserts that NCPD officers continued to use their Tasers disproportionately. (Id.) According to Plaintiff, these statements help demonstrate the City's deliberate indifference by highlighting gaps in NCPD's Taser-related policies and describing the City's "failure to curb Constitutional misconduct in terms of [T]aser-use." (Dkt. No. 12 at 3.) Plaintiff is required to demonstrate the City's failure to deal with a known risk of harm to establish a deliberate indifference claim against Defendant. See Farmer, 511 U.S. at 839 (stating that deliberate indifference requires proof that the defendant "consciously disregard" a known risk); see also Anderson, 877 F.3d at 541 (holding that a jury instruction stating that deliberate indifference requires that defendants had actual knowledge of a substantial risk that the plaintiff would be injured and recklessly disregarded that risk by intentionally refusing or failing to take reasonable measures to deal with the risk was proper). As such, these statements are necessary for Plaintiff's claim against the municipality.
Defendant's prejudice arguments are based on these paragraphs being unrelated or irrelevant. (Dkt. No. 5-1 at 5-7.) Since the Court finds Plaintiff's statements pertinent to Plaintiff's claims, the Court does not believe Defendant is prejudiced by their inclusion in the Complaint.
C. Paragraphs 43, 44, 45, 46, 47, 48 and 49
Defendant moves to strike paragraphs 43, 44, 45, 46, 47, 48 and 49 from the Complaint, again because they "relate to persons, employees and situations totally separate and apart from this matter" and "are remote in time." (Dkt. No. 5-1 at 5-6.) Defendant also argues that Plaintiff does not allege Officer Arnold was involved in the incidents described in these paragraphs. (Dkt. No. 5-1 at 6.) Thus, Defendant claims this information is "impertinent, immaterial, scandalous and only for the purpose of inflaming a jury and prejudicing the defense into defending against allegations that have no bearing on the facts of this case." (Id.) Plaintiff counters that these paragraphs "allege facts and inferences that show lack of proper training and deliberate indifference [of the City]." (Dkt. No. 12 at 3.) Plaintiff explains that the allegations in this civil action "relate [to] the longstanding failures of the City to tighten its training and policies regarding . . . [T]aser-use," and that "facts of the City's historical response, or lack thereof," support those allegations. (Id.)
Paragraph 43 notes that NCPD officers used Tasers 825 times from 2010 to 2014 and compares that to another city in which officers used Tasers only 65 times. (Dkt. No. 1-1 at 11). Paragraph 44 describes disproportionate Taser use on African-Americans. (Id.) Paragraph 45 notes criticism that NCPD received from public interest groups, human rights groups and former police officers from other police departments in response to seeking guidance from Taser International (the company that produces NCPD's Tasers) and not implementing stronger training programs. (Id.) Paragraph 46 explains that NCPD allowed officers to continue to use Tasers in response to any physical force, regardless of the criticism received. (Id.) Paragraphs 47 and 48 further explain how officers justified Taser use in their incident reports. (Dkt. No. 1-1 at 12.) Paragraph 49 summarizes how Defendant City and Defendant Eddie Driggers sanctioned these policies and practices to create a custom throughout NCPD. (Id.)
The Court notes Defendant's argument that the comparison in paragraph 43 is improper because Plaintiff does not include information about the comparison city's "demographics, crime statistics or other information . . . necessary for a true comparison." (Dkt. 5-1 at 6). The Court also notes that Plaintiff does not address Defendant's argument in his Response and Memorandum in Opposition to the Motion. (Dkt. No. 12.) However, the Court finds that paragraph 43 of the Complaint should not be stricken for the reasons set forth in this section and, therefore, declines to address that argument separately.
As previously stated, Plaintiff must show that Defendant "consciously disregarded" a known risk in order to sufficiently state a deliberate indifference claim against Defendant. Farmer, 511 U.S. at 839. In these paragraphs, Plaintiff describes disproportionate Taser use, explains how NCPD reacted to outside criticism relating to that Taser use, and outlines how that disproportionate use continued and was justified in NCPD incident reports. (Dkt. No. 1-1 at 11-12.) These statements are directly related to Plaintiff's deliberate indifference claim, as they tend to show why NCPD may have known of a risk and how NCPD dealt with that knowledge.
For these reasons, the Court disagrees that paragraphs 43, 44, 45, 46, 47, 48 and 49 are "impertinent, immaterial" or "have no bearing on the facts of this case." (Id.) Further, the Court does not believe the statements were included "only for the purpose of inflaming a jury and prejudicing the defense," (Id.), since the Complaint is not submitted to the jury as a matter of course. See Rosendall, 2017 WL 9674476, at *4 (explaining that defendants' argument that allegations related to plaintiffs' claims poisoned the jury pool was not compelling since the complaint is not submitted to the jury and the jury pool is questioned about prior knowledge of the case prior to selection and striking, and noting that defendants' concerns about the introduction of the contested statements at trial would be more appropriately addressed through a motion in limine filed closer to trial.) Therefore, these paragraphs should not be stricken from the Complaint.
D. Last Sentence of Paragraph 35 of the Complaint
Defendant asks the Court to strike the last sentence of paragraph 35 from the Complaint because "it is a gratuitous reference to the Walter Scott case, which did not involve Officer Arnold" and "mention of such a highly publicized case that polarized the community [prejudices Defendant]." (Dkt. No. 5-1 at 5.) The sentence at issue here is a citation to "Alan Blinder, Manny Fernandez, and Benjamin Mueller, Use of Tasers Is Scrutinized After Walter Scott Shooting, N.Y. Times, June 1, 2015, at A1" that follows Plaintiff's description of NCPD's physical force policy. (Dkt. No. 1-1 at 9.) In its entirety, paragraph 35 states:
Plaintiff is informed and does believe that after the committee report, Defendant NCPD adopted their current policy, which allows NCPD field officers to use their Tasers "when [they] are required to use physical force for protection from assault and/or take a person into custody" (described as "physical force policy" or "policy" herein). Alan Blinder, Manny Fernandez, and Benjamin Mueller, Use of Tasers Is Scrutinized After Walter Scott Shooting, N.Y. Times, June 1, 2015, at A1.(Id.)
Plaintiff does not address the contested sentence directly, but discusses paragraph 35 along with paragraphs 30, 31, 32, 33 and 34. Plaintiff argues that these paragraphs serve the purpose of demonstrating a longstanding custom of deliberate indifference by the municipality, as more fully described above. (Dkt. No. 12 at 2-3.) However, this citation "has no essential or important relationship to the claim for relief" and "[does] not pertain to, and [is] not necessary to resolve, the disputed issues." CTH 1 Caregiver, 2012 WL 2572044, at *5 (internal citations omitted). Unlike paragraphs 30, 31, 32, 33 and 34, this citation does not support Plaintiff's claim of deliberate indifference. While the quoted text may demonstrate a gap in NCPD's policies, the citation does not—it merely describes where the quoted language came from. Further, the portion of the article cited in the Complaint is a direct quote of NCPD's physical force policy. See Alan Blinder, Manny Fernandez, and Benjamin Mueller, Use of Tasers Is Scrutinized After Walter Scott Shooting, N.Y. Times, June 1, 2015, https://www.nytimes.com/2015/06/01/us/use-of-tasers-is-scrutinized-after-walter-scott-shooting.html. In other words, Plaintiff does not cite original content from the article and could have cited the policy directly. The Court therefore agrees with Defendant that this is a gratuitous reference. As such, the citation is immaterial and impertinent to Plaintiff's claims.
Moreover, the Court finds the reference prejudicial to Defendant. Because the reference is not relevant to Plaintiff's claims, it draws "unnecessary notoriety" to a highly publicized and polarizing case. CTH 1 Caregiver, 2012 WL 2572044, at *5 (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)). Since this sentence is immaterial, impertinent and prejudicial, it should be stricken from the Complaint.
The Court notes Defendant's assertions that Plaintiff has intentionally misled the Court with regard to his current residence and the facts of the case. (Dkt. No. 14 at 3-4.) However, the Court does not believe that these assertions have any legal bearing on the Motions at issue and, therefore, declines to address them.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Partial Motion to Dismiss (Dkt. No. 5) be GRANTED, and orders that Defendant's Motion to Strike Certain Portions of the Complaint (Id.) be GRANTED in part and DENIED in part. Plaintiff should refile his Amended Complaint after the District Judge rules on Defendant's Partial Motion to Dismiss.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE April 29, 2020
Charleston, South Carolina
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 835
Charleston, South Carolina 29402
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).