Clark v. Hunt

Full title: Richard Clark and Shawn Martin, Plaintiffs, v. Michael E. Hunt in his…

Court: United States District Court, D. South Carolina, Anderson/Greenwood Division

Date published: Sep 12, 2022

Civil Action 8:19-cv-1846-BHH-KFM (D.S.C. Sep. 12, 2022)

Opinion

Civil Action 8:19-cv-1846-BHH-KFM

09-12-2022

Richard Clark and Shawn Martin, Plaintiffs, v. Michael E. Hunt in his representative capacity for the Aiken County Sheriff's Office, Dexter Bowman, Jody Perry Rowland in his representative capacity for the Edgefield County Sheriff's Office, Sam Sherill, Row Crop LLC, Michael Williams, Willie Butler Thomas Osteen, Brandon Morin, Tony Wilson, Robert Bowman, Stephen Glass, Tyler Roberts, Andrew Dailey, Nicholas Lott, Mike Goodwin, Rock Solid Security, and Freeman Enterprises, Defendants.

Kevin F. McDonald, United States Magistrate Judge.

REPORT OF MAGISTRATE JUDGE

Kevin F. McDonald, United States Magistrate Judge.

This matter is before the court on the defendants' motions for summary judgment (docs. 94, 95, 96, 97, 103). The plaintiffs seek relief pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983.

I. BACKGROUND AND PROCEDURAL HISTORY

This case arises from the plaintiffs' attendance at a Luke Bryan music concert held on a farm in Edgefield County on October 5, 2018. The plaintiffs filed their complaint in state court on May 7, 2019, and the case was removed to federal court by the defendants on June 28, 2019, based upon federal question subject matter jurisdiction (doc. 1). In their original complaint, the plaintiffs alleged claims of battery, assault, false imprisonment, and negligence pursuant to the South Carolina Tort Claims Act against the Sheriffs of Edgefield and Aiken Counties in their representative capacities. The plaintiffs alleged claims against defendant Dexter Bowman, who is a deputy with the Edgefield County Sheriff's Office (“ECSO”), and John Does 2-8¹ under Section 1983 for violation of their Fourth Amendment rights against unreasonable seizures. With the consent of the defendants, the plaintiffs filed a motion to amend their complaint, which the undersigned granted on March 29, 2021 (doc. 33). The plaintiffs filed an amended complaint on March 31, 2021, adding individual defendant ECSO Deputy Sam Sherill² and two corporate entities: Hart Halsey, LLC, doing business as Extra Duty Solutions (“Extra Duty”), and Row Crop, LLC (“Row Crop”) (doc. 34). Extra Duty was dismissed from this action with prejudice on August 31, 2021 (doc. 71).

1 The second amended complaint filed on September 3, 2021, removed John Does 2-8 as defendants (doc. 75).

2 Defendant Sherill is identified as “Corporal Sherill” in his deposition (doc. 96-3, Sherill dep.). However, as the parties refer to this defendant as “Deputy Sherill” in their briefs, the undersigned has done the same herein.

On September 3, 2021, the plaintiffs filed a motion to amend their first amended complaint (doc. 73), and the motion was granted the same day (docs. 74, 75). In the second amended complaint, the plaintiffs added the following individual defendants who are deputies with the Aiken County Sheriff's Office (“ACSO”): Michael Williams, Willie Butler, Thomas Osteen, Brandon Morin, Tony Wilson, Robert Bowman, Stephen Glass, Tyler Roberts, Andrew Dailey, Nicholas Lott, and Mike Goodwin (doc. 75). The plaintiffs also added two additional corporations as defendants, Rock Solid Security (“Rock Solid”) and Freeman Enterprises (“Freeman”) (doc. 73 at 4). Along with his answer to the second amended complaint, defendant Sheriff Michael E. Hunt (“Sheriff Hunt”) in his representative capacity for the ACSO alleged a crossclaim against Row Crop, Rock Solid, and Freeman for equitable indemnification (doc. 78 at 8-9).

On March 4, 2022, defendant Jody Perry Rowland (“Sheriff Rowland”) in his representative capacity for the ECSO filed a motion for summary judgment (doc. 94), and motions for summary judgment were filed the same date by defendants Dexter Bowman (doc. 95) and Sam Sherill (doc. 96) of the ECSO (collectively, “the ECSO defendants”). Defendant ACSO deputies Michael Williams, Willie Butler, Thomas Osteen, Brandon Morin, Robert Bowman, Stephen Glass, Tyler Roberts, Andrew Dailey, Nicholas Lott, and Mike Goodwin, along with Sheriff Hunt (collectively, “the ACSO defendants”) (doc. 97), also filed a motion for summary judgment on March 4, 2022. After requesting and receiving an extension of time (docs. 99, 100), defendants Freeman and Row Crop filed a motion for summary judgment on March 14, 2022 (doc. 103). Responses in opposition to the motions for summary judgment (docs. 109, 110, 111, 113) and replies (docs. 114, 121, 122) have been filed, and, therefore, the motions for summary judgment are now ripe for review.

II. FACTS PRESENTED

A. The Concert

As noted, this lawsuit arises from a concert by Luke Bryan in Edgefield County on October 5, 2018, that plaintiffs³ Evan Clark (“Clark”) and Shawn Martin (“Martin”) attended with a group of family and friends, including Bryce Worley (doc. 110-2, Martin dep. 23). Defendant Row Crop organized and produced the concert, defendant Freeman provided a security team, and defendants ACSO and ECSO provided deputies for the concert.

3 The plaintiffs are brothers.

Near the end of the concert, Clark saw a woman being dragged through the crowd by a security guard in plain clothes (doc. 110-3, Clark dep. 64). A law enforcement officer, identified by Clark as defendant ECSO Deputy Dexter Bowman, ran up to see what was going on. Clark testified that a drunk man⁴ standing near the plaintiffs' group began “hurling obscenities” at Deputy Bowman and the security guard because he apparently “took . . . offense . . . that the security guard was doing his job in the means he was doing it” (id. 67-68, 73-74). Clark testified that he tried to calm down the man who was “hurling obscenities” at Deputy Bowman, but he would not stop (id. 67-69). Clark further testified that he told Deputy Bowman that he was leaving and that he did not know the other man (id. 71-72). Clark testified that when he was explaining to Deputy Bowman “what was going on,” he turned and was tackled by “police officers” from behind and was thrown face down on the ground (id. 75-76). Clark could not identify who tackled him, but when he “came to on the ground, [he] was surrounded by Aiken and Edgefield County” (id. 75-80). Clark testified that he was held in a chokehold on the ground, struck repeatedly in the back of his head, handcuffed with his hands behind his back, and removed from the concert by two officers holding him under each arm with his legs dragging the ground (id. 79-81, 83-85). Clark testified that he “was tackled by police officers that work for Aiken or Edgefield County” (id. 81) (emphasis added). Clark testified that he did “not know which one specifically” struck him (id. 80). He could not say whether or not Deputy Dexter Bowman laid hands on him, but Deputy Bowman “was the closest officer to the encounter” (id. 75-82). Clark could not describe the type of uniforms the person or persons who tackled him were wearing, nor could he identify the race of the person or persons who tackled him and/or struck him (id. 78, 82). Clark could not say whether one or more persons tackled him, put him in a chokehold, and struck him (id. 82-84). Clark testified that the officers who dragged him out of the concert put him on the ground beside an ACSO patrol car, where he spoke with an officer who knew his wife (id. 86). Clark further testified that his wife, Amanda Clark (“Amanda”), spoke with ACSO deputies, who then asked Deputy Dexter Bowman what Clark had done and with what he was being charged (id.). Deputy Bowman then stated that Aiken County's handcuffs were on Clark, to which the ACSO deputies responded that they were not arresting Clark (id.).

4 Clark testified that he had never seen this man before the concert and had not seen him since (doc. 110-3, Clark dep. 67).

Amanda testified in her affidavit that she and others in her group saw a man dragging a woman by the hair (doc. 110-1, A. Clark aff. ¶ 3). They did not realize at that time that the man was a security guard (id.). As emergency medical services (“EMS”) came to the aid of the woman, ECSO deputies came to assist with controlling the crowd in the area (id.). Clark and Martin approached to make sure that the woman was alright and were told that the man dragging her was with security (id.). Clark and Martin turned to leave, and a man they did not know ran up and started yelling, cursing, and making aggressive advancements toward the deputies, who told the man repeatedly to “walk away” and “back the fuck off” (id.). Amanda testified that as their group continued to walk toward the gate, the man continued yelling at the deputies, and she saw an ACSO deputy tackle Clark “from behind, putting him in a chokehold and riding him to the ground” (id. ¶ 4). She further testified that she saw ECSO Deputy Dexter Bowman and another ECSO deputy whose name she did not know tackle Martin from behind, and she witnessed the ECSO deputy whose name she did not know stomp Martin's leg, after which “multiple officers joined in” (id.). She testified that the ACSO deputy “who was choking” Clark “began to punch him in the back of the head while he was on the ground with his arms straight out, not resisting” (id.). After Clark and Martin were taken away in handcuffs, Amanda approached Deputy Bowman “to find out what was going on” (id. ¶ 5). He told Amanda that he saw Clark and Martin punch his sergeant in the face, so Clark and Martin were going to jail for assault on an officer and resisting arrest (id.). Amanda stated in her affidavit that she knew this was not true, and she spoke with the sergeant whom Deputy Bowman said had been punched by Clark (id.). The sergeant told Deputy Bowman to step away and speak with him, and they went over to the patrol car to speak with the ACSO deputies (id.). Then, Amanda saw Clark stand up and have his handcuffs removed. Martin was still handcuffed at that time and was sitting by the ambulance while his leg was splinted. When Martin was allowed to leave, Clark and Amanda followed Martin to the hospital (id.).

Plaintiff Martin testified that he saw a security guard dragging a lady out of the concert by her hair, and he saw another man yelling and cursing at the security guard (doc. 110-2, Martin dep. 51-52). At that point, Deputy Dexter Bowman walked up and asked if there was a problem (id. 53). Martin stated that he told Deputy Bowman there was no problem, they were wondering what was going on with the lady and whether they needed to get an officer to help her, and further told Deputy Bowman, “I appreciate what you do and I hope you have a good night” (id. 53-54). Martin testified that he touched Deputy Bowman's shoulder as he said this, and Deputy Bowman responded, “Don't fucking touch me” (id. 54). At that point, Martin and Clark walked off, told their group it was time to go, and started to walk toward the exit gate (id.).

Plaintiff Martin testified that as he and Clark and the rest of their group were walking out of the concert, he was suddenly tackled from behind, taken to the ground, his head was pulled back choking him, and the person on top of Martin told Martin to give him his arm, but Martin's arm was pinned underneath him (doc. 110-2, Martin dep. 26-30). Martin testified that “nobody announced nothing to [him]; never asked [him] to do anything that was said, nothing” (id. 27). Martin did not see who tackled him or Clark (id. 26-30). Martin's hands were ziptied, and he was picked up and told to walk. However, Martin could not walk, because something was wrong with his foot (id.). Martin testified that the people who carried him were ECSO deputies (id. 31). He testified that the officers were “all pretty much in the same uniforms . . . black T-shirt [and] vest” (id. 31). The uniform had “green writing on it . . . Edgefield,” “a tactical type vest,” tan or green pants, and boots (id. 35-36). Martin testified that two people who were with him (Caylan Key and Martin's sister Tiffany) told him that there were multiple people on top of him when he was knocked down (id. 3334). Martin remembered that one of the officers who carried him to the EMS vehicle was an “older white gentleman - white hair guy,” who was “pretty tall, heavy set,” and who was with the ECSO (id. 36-37). When the emergency medical technicians (“EMTs”) pulled off Martin's boot, his foot was very swollen, and the EMTs told Martin that his leg was broken (id. 38). Martin remembered that Deputy Dexter Bowman told the EMTs that Martin was “free to go” when the EMTs asked what needed to be done with Martin (id. 37). One of the EMTs responded that Martin's “leg's broke for nothing” (id. 38). Martin was not arrested, and he declined transport to the hospital (id. 38-39). Martin could not say whether Deputy Bowman was involved in taking him down to the ground (id.). Martin was driven by a friend directly from the concert to Doctor's Hospital in Augusta (id. 40-41). After being x-rayed, Martin was told that “the socket of [his] bone broke . . . chipped off of [his] heel on the bottom side,” and he would need surgery (id. 42). He was sent home that night, and he had surgery on October 15, 2018, at which time hardware was put in his ankle (id. 42, 79; see doc. 110-6, Martin med. records). In October 2020, the hardware was removed (doc. 110-2, Martin dep. 82). Martin testified that he continues to walk with a limp (id.).

Defendant Deputy Dexter Bowman of the ECSO testified that someone told him that a woman had been dragged out of the concert, and when he looked in that direction, he “saw a commotion” and “some guys arguing or what appeared to be arguing” (doc. 95-2, D. Bowman dep. 26). He testified that there was a crowd of people around him, and a sergeant who was working on the stage told other officers to come to Deputy Bowman's assistance because he had a crowd around him (id.). Deputy Bowman testified that it was loud and “just real chaotic,” and everyone in the crowd around him was upset and repeatedly saying “this is not right” (id. 26, 40). He did not know until later that the person who dragged the lady out of the concert was a security guard (id. 40). Deputy Bowman testified that he told Martin to leave, and Martin began to curse and yell at him, despite being told to calm down and to explain to Deputy Bowman what was going on (id. 34-39). He could not remember the curse words that Martin used (id. 35). Deputy Bowman remembered that someone touched him from the back, but he was not sure that the person was Martin, and Deputy Bowman responded by telling the person, “Don't put your fucking hands on me” (id. 35-36). Deputy Bowman testified that “Aiken County had some guys out towards the vendors, and they came to assist” (id. 26-27).

Deputy Bowman testified that he told the responding officers to “detain [Martin] until he could get back and figure out what's going on and we can clear some of this crowd out and . . . if nothing was wrong, then they was free to go” (doc. 95-2, D. Bowman dep. 39; see also id. 43 (stating that he pointed at Martin to direct the ACSO deputies to detain him)). Deputy Bowman testified that he had seen a commotion and what he thought was an argument between two men, he knew that a woman had been dragged out of the concert by her hair, and he was surrounded by a crowd, so he wanted Martin to be detained until he could figure out the situation (id. 39). Deputy Bowman testified that whether he was “taking them to jail or not, if it's an investigative detention, [he] always put cuffs on them . . . until [he] figure[d] out what's going on” (id. 38). He did not remember if he told Martin that he was being detained and that he needed to turn around to be handcuffed (id. 41-42). Deputy Bowman testified that “Aiken got hands on [Martin] and detained him, along with Deputy Sherill” (id. 26-27). He further testified that the ACSO deputies were trying to get control of Martin's hands, and Deputy Sherill of the ECSO “came in to help them out, [and] they all fell to the ground” (id. 52). He testified that “the initial thing was not to take him to the ground. It was just trying to get control of his hands” so that Martin could be handcuffed (id. 52-53). He did not know if Deputy Sherill's intention was to “take [Martin] down, but it happened” (id.).

Deputy Bowman stated that he had no memory of any conversation or physical contact with plaintiff Clark, and he only remembered his interaction with plaintiff Martin (doc. 95-2, D. Bowman dep. 71, 73). Deputy Bowman further testified that he never laid hands on plaintiff Martin in regard to Martin being taken to the ground, but he did assist in carrying Martin to an EMS vehicle (id. 102-103). Deputy Bowman prepared an incident report in which “Subject 2” is Martin (id. 35; doc. 95-3).⁵

5 The plaintiffs state in their response to the ECSO defendants' motions for summary judgment that “despite policy directives, no incident report or use of force reports were filed by Defendant Dep. Bowman after the incident” (doc. I10 at 3 (citing doc. 110-2, Martin dep. 37-39; doc. 110-4, Bowman dep. 70)). The deposition excerpts cited by the plaintiffs do not support the plaintiffs' statement, but rather show that no criminal charges were filed against plaintiff Martin, which is undisputed. Further, as noted, Deputy Bowman submitted an incident report regarding the matter in support of his motion for summary judgment (doc. 95-3).

Deputy Sam Sherill of the ECSO testified that were thousands of people at the concert, many in the crowd were intoxicated, it was very loud and hot, “people left and right . . . were falling out due to the heat exhaustion,” law enforcement was largely outnumbered, and it was “something that . . . [the ECSO had] never dealt with before” (doc. 96-3, Sherill dep. 38-40). Deputy Sherill testified that Captain Florida was on the stage and stated over the radio, “[S]omebody get to Dexter” (id. 44-45). Deputy Sherill walked into the crowd looking for Deputy Bowman and saw a man struggling with ACSO deputies (id. 45). Deputy Sherill testified that it looked like they were trying to get the man on the ground, and he assumed the reason was to put handcuffs on the man (id.). The man was pulling away from the deputies, so Deputy Sherill ran over to assist with the takedown (id.). He learned later that the man was plaintiff Martin (id.). Deputy Sherill testified that the ACSO deputies were not fighting with Martin, but he was worried that since Martin was snatching his arms away from the deputies, Martin's elbow could hit one of the bystanders who were crowded around (id. 46). Deputy Sherill testified that he approached Martin from the side, got in front of Martin, placed his shoulder into Martin's waistband, grabbed Martin's legs, pulled Martin's legs out from under him, and they “all fell to the ground” (id. 47). Deputy Sherill then assisted the ACSO deputies in turning Martin over onto his stomach (id. 50-51). He testified that he did not assist the ACSO deputies with holding Martin down (id.). Deputy Sherill did not find out until a couple of days later that Martin had been injured (id. 52).

Deputy Sherill testified that while he was kneeling beside Martin, he looked up and saw another man wrestling with ECSO Sergeant James Densmore⁶ and Deputy Dexter Bowman, so he ran over to assist them (doc. 96-3, Sherill dep. 50-51). Deputy Sherill observed Sergeant Densmore trying to take the man to the ground with a straight arm bar, and Deputy Bowman was doing the same thing on the other side of the man, but the man was trying to pull away from them (id. 52-53). Deputy Sherill ran over, put his shoulder into his waistband, grabbed the man's legs, and they fell to the ground (id. 53). Deputy Sherill learned later that the man's name was Bryce Worley (“Worley”)⁷ (id.). Deputy Sherill understood that Worley was arrested by Sergeant Densmore (id. 54). Deputy Sherill had no involvement with plaintiff Clark, and he did not remember ever seeing him the night of the concert (id. 55).

6 Sergeant Densmore is not a defendant in this action.

7 As noted above, Worley was with the plaintiffs' group of family and friends at the concert (doc. 110-2, Martin dep. 23). He is not a party in this action.

Sergeant Densmore of the ECSO testified that as he was trying to make his way to Deputy Dexter Bowman, Bryce Worley came up to him “and pushed [him] back so [he] never made it over there to that area” (doc. 97-7, Densmore dep. 41). He did not observe either of the plaintiffs being detained by any law enforcement officers, and he could not testify as to which officers were involved in any interaction with either of the plaintiffs (id. 64-65). Sergeant Densmore testified that he was assaulted by Worley and arrested him at the concert (id. 66). Sergeant Densmore did see a man sitting in a chair in the EMS area, and Deputy Bowman told him that the man was complaining of a leg injury (id. 41). Sergeant Densmore had no idea how the leg injury occurred or who was involved (id.).

Defendant ACSO Deputies Michael Williams, Willie Butler, Thomas Osteen, Brandon Morin, Robert Bowman, Stephen Glass, Tyler Roberts, Andrew Dailey, Nicholas Lott, and Mike Goodwin submitted affidavits in support of their motion for summary judgment, attesting that they are familiar with the allegations made by the plaintiffs, but they were not involved in the alleged incident (docs. 97-8, Morin aff. ¶ 3 (testifying he worked the main gate and the left side of the stage, and he did not witness nor was he involved in the incident with the plaintiffs); 97-9, Williams aff. ¶ 3 (testifying he did not witness nor was he involved in any incident with the plaintiffs); 97-10; Lott aff. ¶ 3 (testifying he was positioned near the rear fence for most of the concert, and he did not witness nor was he involved in any incident with the plaintiffs); 97-11, Osteen aff. ¶¶ 3-4 (testifying that he did not witness nor was he involved in any incident with the plaintiffs, but Clark's girlfriend (now wife) Amanda, with whom he was acquainted, approached him at the concert and spoke with him, and he advised her and Clark (both of whom were highly intoxicated) that they would need to address any charges or potential charges with the ECSO deputies); 97-12, Roberts aff. ¶¶ 3-4 (testifying that he was not involved in the altercation that the plaintiffs have described but did escort an individual out of the concert who claimed he could not walk, but that individual was arrested and his mother was present, so Roberts does not believe that the individual was one of the plaintiffs); 97-13, Glass aff. ¶ 3 (testifying he was in the area around the food vendors, and he was not involved in nor did he witness the incident described by the plaintiffs); 97-14, Goodwin aff. ¶ 3 (testifying that he did not witness nor was he involved in any incident with the plaintiffs); 97-15, Dailey aff. ¶ 3 (testifying that he did not witness nor was he involved in any incident with the plaintiffs); 97-16, R. Bowman aff. ¶ 3 (testifying that he recalled hearing a request for assistance because of a fight between two concert attendees, but by the time he arrived, the incident was over, and, while he saw two persons being escorted out by deputies, he was not certain whether the deputies were with ACSO, and he is not sure that the persons were the plaintiffs); 97-17, Butler aff. (testifying that he was not involved in the incident described by the plaintiffs, and he does not recall seeing an ECSO deputy involved in any altercation with a concert attendee and requiring assistance from him or other ACSO deputies)).

ECSO Deputies Dexter Bowman and Sherill testified that two ACSO deputies were struggling with plaintiff Martin and attempting to restrain him when Deputy Sherill took down Martin. However, neither Dexter Bowman nor Deputy Sherill could identify the ACSO deputies involved in the incident (doc. 97-5, D. Bowman dep. 43-44, 96-97; doc. 97-6, Sherill dep. 28-29, 33-34, 72).⁸ Further, none of the ECSO employees were able to testify about what occurred with plaintiff Clark, and they could not identify any ACSO deputy involved in the incident alleged by plaintiff Clark (doc. 97-5, D. Bowman dep. 97; doc. 97-6, Sherill dep. 75-76; doc. 97-7, Densmore dep. 41, 64, 66).

8 Deputy Dexter Bowman testified that he did not know the sex or race of the ACSO deputies involved in the incident with Martin as he “just literally saw the uniforms” (doc. 975, D. Bowman dep. 43-44). Deputy Sherill testified that he believed the ACSO deputies involved were males, but he was not sure of their races (doc. 97-6, Sherill dep. 72).

B. Relationship of the Defendants

The ACSO entered an agreement with Hart Halsey, LLC d/b/a Extra Duty on August 1, 2018, for Extra Duty to administer the ACSO's extra duty program (the “Agreement”) (doc. 103-2). Under the Agreement, Extra Duty provided the following, inter alia:

1. Engage with entities (“Customers”) looking for officers for extra duty services to explain to Customers (i) program

rules/rate and (ii) gather and relate pertinent information and feedback.

2. Schedule extra duty details with officers in a manner consistent with department rules.

3. Invoicing customers and collections in agreement with department leadership.

4. Manage officer pay in coordination with existing payroll schedule.

5. Manage communications between Customers and departments.

(Id.). The Agreement also provided: “Client [ACSO] acknowledges that the Company [Extra Duty] is an independent contractor . . . . Client acknowledges that its officers shall at no time be considered to be employees of Company” (id. at 5).

An email dated September 10, 2018, reflects Row Crop's purchase as a “new customer order” for the product of “Aiken Extra Duty Detail Application” (doc. 103-4). The email lists the concert date and details of the services that were needed and the number of officers requested. In particular, it states that law enforcement and security were needed for a concert on October 5, 2018, with a detail start time of 11:00 a.m. and end time of 1:00 a.m. The request was for twelve officers, and it appears payment was made for the new customer order via credit card. It also lists Captain Abdullah of the ACSO as the officer point of contact for the event. Kristen Moser is listed as the contact person for the customer along with the billing address for Row Crop (id.). Kristen Moser worked for defendant Freeman assisting with tour logistics, and she arranged for the ACSO deputies through Extra Duty on behalf of Row Crop (doc. 109-1 at 6). After the event, Extra Duty issued an invoice to Kristen Moser of Row Crop for $9,719.72 for fourteen ACSO deputies, which was paid by check number 00014061 from Row Crop (doc. 109-2).

The ACSO's Policies and Procedures regarding secondary employment define “extra-duty employment” as “[a]ny secondary employment that is conditioned on the actual or potential use of law enforcement powers by the off-duty employee (i.e. Paid Special)” (doc. 103-3 at 1). “Off-duty employment” is defined as “[a]ny secondary employment that is not conditioned on the actual or potential use of law enforcement powers by the off-duty employee” (id.). It is undisputed the ACSO provided “extra-duty” officers to perform actual or potential law enforcement powers via a contract/purchase order with Extra Duty and its customer, Row Crop. The ACSO's policy also provides the following:

a. Sworn personnel must receive agency permission to engage in extra-duty employment.

b. Types of extra-duty employment [that] may be considered for agreements are: . . . [c]rowd control.

c. All requests for extra-duty employment are subject to review and approval by the Sheriff or Chief Deputy. . . .

d. The Sheriff will make the final decision in regards to extra-duty employment and any related conditions or restrictions, and shall have the authority to revoke any approved agreement.

e. [O]fficers engaged in extra-duty employment will be responsible for reports and paperwork arising from action taken during such employment. . . .

f. [T]he on-scene supervisor shall oversee the conduct, activities and adherence to the [ACSO's] Policies and Procedures of officers assigned to such extra-duty employment. ...

g. [U]se of agency property and equipment is authorized. . . .

h. Scheduled [e]xtra-[d]uty employment shall be considered and handled the same as normal work assignment. . . .

i. The Sheriff's administrative service director will maintain all paperwork for extra-duty/ secondary employment of sworn personnel. . . .

j. In the event that extra-duty assignments are not filled voluntarily, the PIO may assign personnel as necessary. . . .

k. [I]ncidents occurring during an officer's extra-duty employment, including but not limited to uses of force, complaints received, incidents occurred and injuries sustained,

shall be documented utilizing normal Agency procedures and forms.

(Id. at 1-4).

Captain Eric Abdullah of the ACSO testified that “extra-duty” is when a company or individuals hire deputies for security (doc. 103-7, Abdullah dep. 8, 21-23). Deputies on extra-duty employment wear their ACSO uniforms, are authorized to arrest persons, and still have to follow agency policies and procedures (id. 8-10). Persons hiring an officer for extra-duty work contract with Extra Duty and pay Extra Duty the fees for work performed by the officers. Extra Duty then sends payment for officers' services to the County, and officers are paid through their regular paychecks. (id. 10-11). While working extra-duty, officers are covered by county insurance (id. 11). The company requesting services has no authority to direct and tell the officers what to do (id. 12). Captain Abdullah was the ranking officer at the Luke Bryan concert. He responded to the concert promoter as needed, but Captain Abdullah made the decision whether or not to engage his officers in the concert promoter's requests at the concert (id. 12-15). Row Crop and Extra Duty had no authority to direct the officers, while Captain Abdullah had direct authority for the ACSO officers working the concert (id.). The ACSO assisted the ECSO by providing officers for the concert, which was held in Edgefield County. The concert promoter went through Extra Duty to fulfill the number of officers needed for the concert due to the size of the event (id. 14-15, 23-24). The ACSO is allowed to provide mutual aid to the ECSO via inter-agency agreement (id. 16). According to Captain Abdullah, the common practice was to allow the primary agency (in this case, the ECSO) to handle any arrest, since the concert was in the ECSO's jurisdiction (id. 16-18).

Officers, security personnel, the concert promoter, and the promoter's head of security met before the concert on center stage for a briefing, which Captain Abdullah attended (doc. 103-7, Abdullah dep. 23-25). Officers were to be posted on either side of the stage to look out over the crowd and help direct law enforcement if there was an issue (id.). Captain Abdullah had direct communication with the concert promoter's security person and communicated with his officers via radio (id.).

The ECSO Policy and Procedures Manual in its procedure for “Secondary Employment” also sets forth guidelines to govern secondary employment by members of ECSO, including extra-duty employment (doc. 103-5). The ECSO guidelines are essentially the same as those of ACSO, including required approval by the Sheriff or Captain, required reporting, potential mandatory assignments, and use of agency property and equipment (id.).

Row Crop's records reflect that it paid Edgefield County $16,406.72 for “Sheriff Department & EMS Support” (doc. 103-6). The ECSO provided twenty-two officers, and Edgefield County provided fifteen EMTs for the Luke Bryan concert at Misty Farms on October 5, 2018 (doc. 103-6).

Sergeant Densmore of the ECSO testified that he was required to be at the concert (doc. 103-8, Densmore dep. 11). The Edgefield County Sheriff was at the concert at the beginning for the briefing with the concert staff (id. 12). Captain Christopher Walsh was in charge of assigning ECSO deputies their positions that night (id.). Sergeant Densmore took orders from his chain of command; he was in uniform and wearing a body vest, his tactical pants, radio, gun, magazines, and handcuffs (id. 12-13).

C. Allegations in the Second Amended Complaint

In the second amended complaint, the plaintiffs alleged causes of action for battery (first cause of action), false imprisonment (second cause of action), and assault (third cause of action) against the ACSO, the ECSO, Row Crop, Rock Solid, and Freeman under South Carolina common law and the South Carolina Tort Claims Act (“SCTCA”) (doc. 75 at 8-10). In the fourth cause of action, the plaintiffs alleged gross negligence against the ACSO and the ECSO under the SCTCA and negligence against Row Crop, Rock Solid, and Freeman (id. at 10-11). In the fifth cause of action, which is brought pursuant to Section 1983, the plaintiffs alleged violation of their constitutional right to be free from unreasonable seizure under the Fourth and Fourteenth Amendments to the United States Constitution against defendants Dexter Bowman, Sherill, Williams, Butler, Osteen, Morin, Wilson, Robert Bowman, Glass, Roberts, Dailey, Lott, and Goodwin (collectively, “the individual defendant ACSO and ECSO deputies”) (id. at 11-12). In the sixth cause of action, the plaintiffs alleged that the individual defendant ACSO and ECSO deputies violated the plaintiffs' rights under the Fourth and Fourteenth Amendments by using unreasonable and excessive force against them (id. at 12). In the seventh cause of action, the plaintiffs alleged that the individual defendant ACSO and ECSO deputies violated the plaintiffs' rights under the Fourth Amendment “on a theory of bystander liability for failure to protect the plaintiffs from use of unreasonable force” (id.).

III. APPLICABLE LAW

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

B. Section 1983

Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under Section 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

1. Unlawful Seizure

The Fourth Amendment to the Constitution guarantees citizens the right “to be secure in their persons . . . against unreasonable . . . seizures . . . .” U.S. Const. amend. IV. Under the Fourth Amendment, police officers may approach individuals in public places and ask them questions, "so long as a reasonable person would understand that he or she could refuse to cooperate." Florida v. Bostick, 501 U.S. 429, 431 (1991). Under those circumstances, the police encounter is "consensual and no reasonable suspicion is required." Id. at 434. A seizure occurs, however, once a reasonable person would no longer believe he or she is free "to disregard the police and go about their business." California v. Hodari D., 499 U.S. 621,269 (1991). The test is whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). If a person has been seized, the issue then becomes whether officers had "'a reasonable suspicion supported by articulable facts that criminal activity may have been afoot,' thereby justifying a brief detention for investigative purposes.” Turmon v. Jordan, 405 F.3d 202, 205 (4^th Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

2. Excessive Force

Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment and must be judged by reference to the Fourth Amendment's “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 394-95 (1989). The Fourth Amendment's “reasonableness” inquiry is whether the officers' actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an “allowance for the fact that police officers are often forced to make split-second” decisions about the amount of force necessary in a particular situation. Id. at 396-97. The court utilizes the following factors in evaluating the totality of the facts and circumstances of excessive force claims: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. at 396 (citing Tennessee v. Gardner, 471 U.S. 1, 8-9 (1985)).

3. Bystander Liability

To establish a claim under Section 1983 for bystander liability, a plaintiff must show that defendants “(1) [knew] that a fellow officer [was] violating an individual's constitutional rights; (2) [had] a reasonable opportunity to prevent the harm; and (3) [chose] not to act.” Randall v. Prince George's Cnty., Md., 302 F.3d 188, 204 (4th Cir. 2002).

C. State Law Claims

1. Battery

Battery “is the actual infliction of any unlawful, authorized violence on the person of another, irrespective of its degree . . . .” Gathers v. Harris Teeter Super Market, 317 S.E.2d 748, 754 (S.C. Ct. App. 1998) (citation omitted).

2. False Imprisonment

“The elements of the tort [of false imprisonment] are intentional restraint of another without lawful justification." Carter v. Bryant, 838 S.E.2d 523, 527 (S.C. Ct. App. 2020).

3. Assault

“[A]n assault occurs when a person has been placed in reasonable fear of bodily harm by the conduct of the defendant.” Gathers, 317 S.E.2d at 754-55.

4. Gross Negligence

“Gross negligence is the intentional, conscious failure to do something [that] it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do” and/or the “failure to exercise slight care.” Richardson v. Hambright, 374 S.E.2d 296, 298 (S.C. 1988) (citations omitted).

5. SCTCA

The SCTCA “is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employee's official duty.” S.C. Code Ann. § 15-78-200. All governmental entities, defined as the State and its political subdivisions, may be held liable for their torts as a private individual would be liable, subject to the limitations and exemptions of the SCTCA. Hawkins v. City of Greenville, 594 S.E.2d 557, 563 (S.C. Ct. App. 2004) (citing S.C. Code Ann. §§ 15-78-30(d), 15-78-40). “For a government employee to be acting within the scope of his official duty or employment, the employee must be (1) ‘acting in and about the official business of the government entity,' and (2) ‘performing official duties.' ” Wade v. Berkeley Cnty., 498 S.E.2d 684, 688 (S.C. 1998) (quoting S.C. Code § 15-78-30(i)).

IV. ANALYSIS

A. ECSO Defendants

1. Deputy Dexter Bowman

As noted above, the plaintiffs alleged the fifth (unreasonable seizure under the Fourth and Fourteenth Amendments), sixth (unreasonable and excessive force under the Fourth and Fourteenth Amendments), and seventh (bystander liability under the Fourth Amendment) causes of action against defendant Deputy Bowman. In his motion for summary judgment, Deputy Bowman moves for summary judgment as to all three claims brought under Section 1983. He argues that he had no personal involvement with either of the plaintiffs as to the injuries they allege, his actions do not constitute an unlawful seizure of either of the plaintiffs, and that the plaintiffs have no viable claim against him for bystander liability (doc. 95-1 at 5-8).

The undersigned agrees with Deputy Bowman's arguments as to the claims by plaintiff Clark. Notably, in their response to Deputy Bowman's motion for summary judgment, the plaintiffs fail to identify any disputed issues of fact regarding plaintiff Clark's claims, and they limit their arguments to plaintiff Martin's claims against Deputy Bowman (doc. 110 at 6-14). In his deposition, plaintiff Clark could not identify the officer or officers who tackled and punched him, and his wife testified in her affidavit that an ACSO deputy tackled and punched Clark. Further, Deputy Bowman testified that he had no memory of any conversation or physical contact with plaintiff Clark, and he only remembered his interaction with plaintiff Martin (doc. 95-2, D. Bowman dep. 71,73). As there is no evidence before the court upon which it can be reasonably inferred that defendant Deputy Bowman violated plaintiff Clark's constitutional rights by subjecting him to an unreasonable seizure, by using unreasonable and excessive force against him, or by choosing not to act to prevent harm by a fellow officer who was violating Clark's constitutional rights, summary judgment should be granted to Deputy Bowman on plaintiff Clark's claims in the fifth, sixth, and seventh causes of action.

With regard to plaintiff Martin's claims against Deputy Bowman, however, the undersigned recommends that summary judgment be denied. Deputy Bowman argues that “[t]here is no evidence or testimony that [he] was involved in the takedown involving Shawn Martin, which is alleged as excessive force,” and, thus, he had no personal involvement in the injuries alleged by plaintiff Martin (doc. 95-1 at 5). He further argues that his actions do not constitute an unlawful seizure of Martin (id. at 6-7). However, the evidence before the court is in dispute as to what Deputy Bowman's actions with regard to Martin actually were. While Deputy Bowman denies touching Martin except to assist in carrying him to an EMS vehicle (doc. 95-2, D. Bowman dep. 102-103), Amanda Clark testified in her affidavit that she saw Deputy Bowman and another ECSO deputy (whose name she did not know) tackle Martin from behind (doc. 110-1, A. Clark aff. ¶ 4). She further testified that after Clark and Martin were taken away in handcuffs, she approached Deputy Bowman and spoke with him (id. ¶ 5).

In their reply, the ECSO defendants argue:

Amanda Clark in no way provides any basis for her being able to make an identification of Dexter Bowman. . . . She provides no description of him at all, she provides no details as to how she could know him, and her affidavit does not meet the requirements of [Rule] 56 to show that she is competent to make that identification to support her accusation. . . .

(Doc. 121 at 3). The undersigned finds that Amanda's testimony is sufficient under Rule 56. Fed.R.Civ.P. 56(c)(4) (stating that affidavits used to support or oppose a motion for summary judgment must “be made on personal knowledge, set out facts admissible in evidence, and show that the affiant is competent to testify on the matters stated”). See Lee-Thomas v. Prince George's Cnty. Pub. Sch., C. A. No. CV DKC 15-2010, 2017 WL 2733802, at *6 (D. Md. June 26, 2017) (“The general rule, however, remains that a court should not weigh the credibility of testimony of one party against the testimony of another at the summary judgment stage, even if it is self-serving.” (citation omitted)).

Based upon the foregoing, an issue of material fact remains as to Deputy Bowman's involvement in the incident that led to plaintiff Martin's injuries. While Deputy Bowman contends that his “attempt to detain Martin for investigative detention was only verbal and very brief, as he immediately went to the aid of [Sergeant] Densmore,” and he “did not put hands on Martin” (id. at 7), Amanda Clark's testimony was quite different, as noted above: Martin was undeniably “seized” when he was tackled and placed in handcuffs. Thus, with regard to his unlawful seizure claim, the question becomes whether Deputy Bowman had a “'reasonable suspicion supported by articulable facts that criminal activity may have been afoot,' thereby justifying a brief detention for investigative purposes.” 405 F.3d at 205 (quoting Sokolow, 490 U.S. at 7). Moreover, with regard to Martin's excessive force claim, the court must consider (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396 (citing Gardner, 471 U.S. at 8-9). While Deputy Bowman testified that he was concerned about a “domestic situation” given the fact that a woman had been dragged away by her hair, he saw two men (one of which was Martin) arguing, and Martin was using profanity, he further testified that he did not remember telling Martin that he was being detained or that he needed to place his hands behind his back to be handcuffed, and when deputies laid hands on Martin, Martin “wasn't fighting [and] wasn't . . . trying to get away . . . he was wondering why they were trying to detain him and what grounds it was” (doc. 952, D. Bowman dep. 31-42, 47-48). Further, the plaintiffs have presented evidence that Martin was not suspected of committing any crime, he was cordial in his brief conversation with Deputy Bowman and merely expressed concern about the woman who had been dragged away, he turned to leave, and, while deputies “announced nothing to [Martin]” and “never asked [him] to do anything,” Martin was tackled from behind as he was walking out of the concert him (doc. 110-2, Martin dep. 26-30, 51-54). The plaintiffs have also presented evidence that Deputy Bowman assisted in taking Martin to the ground, Martin's head was pulled back choking him as officers attempted to get his arm, an unknown ECSO deputy stomped Martin's leg, and Martin's ankle was broken in the incident (doc. 110-2, Martin dep. 26-30; doc. 110-1, A. Clark aff. ¶ 4). Here, viewing the evidence in a light most favorable to Martin, a reasonable trier of fact could find in his favor, which precludes summary judgment on Martin's unlawful seizure and excessive force claims.

Plaintiff Martin alleges an “alternative claim” of bystander liability against Deputy Bowman (doc. 110 at 6). As noted above, to establish such a claim, Martin must show that Deputy Bowman “(1) [knew] that a fellow officer [was] violating an individual's constitutional rights; (2) [had] a reasonable opportunity to prevent the harm; and (3) [chose] not to act.” Randall, 302 F.3d at 204. Deputy Bowman argues in his motion for summary judgment that “there are no facts [that] would alert [him] that any officer involved in dealing with [Martin] had violated [his] rights, and without that knowledge and/or information, there can be no liability under [Section] 1983” (doc. 95-1 at 8). The plaintiffs argue in response:

Although Plaintiff's version of facts has Dep. Dexter Bowman participating in the use of excessive force on Plaintiff Martin, a jury could decide to believe part of his testimony that he stood by to assist with Plaintiff Martin but did not physically go hands on. A reasonable jury could find he caused the detention and watched as [ACSO] deputies and . . . Deputy Sherill used excessive force on Plaintiff Martin, whom Dep. Dexter Bowman testified was not resisting.

(Doc. 110 at 12-13). As noted, Deputy Bowman testified that he told the responding ACSO deputies to detain Martin (doc. 95-2, D. Bowman dep. 39; see also id. 43 (stating that he pointed at Martin to direct the ACSO deputies to detain him)). He further testified that he saw the ACSO deputies were trying to get control of Martin's hands, and Deputy Sherill of the ECSO “came in to help them out, [and] they all fell to the ground” (id. 52). Further, the plaintiffs have submitted Amanda Clark's affidavit in which she stated that Deputy Bowman and another ECSO deputy tackled Martin from behind and the other ECSO deputy stomped Martin's leg, after which “multiple officers joined in” (doc. 110-1, A. Clark aff. ¶ 4). Viewing the evidence in a light most favorable to plaintiff Martin, genuine issues of material fact remain on this claim, and, therefore, summary judgment should be denied.

Lastly, Deputy Bowman argues that he is entitled to qualified immunity (doc. 95-1 at 8-10). If the facts of this case were undisputed, the court would proceed by applying the clearly established law to determine whether Deputy Bowman is entitled to qualified immunity. However, as discussed above, factual issues critical to the resolution of plaintiff Martin's claims are contested. “Qualified immunity does not override the ordinary rules applicable to summary judgment proceedings.” Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). “Summary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendant.” Buonocore v. Harris, 65 F.3d 347, 359 (4th Cir. 1995). Where a “dispute of material fact precludes a conclusive ruling on qualified immunity at the summary judgment stage, the district court should submit the factual questions to the jury and reserve for itself the legal question of whether the defendant is entitled to qualified immunity on the facts found by the jury.” Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005). Accordingly, the undersigned recommends that the district court deny Deputy Bowman's motion on qualified immunity grounds.

Based upon the foregoing, Deputy Bowman's motion for summary judgment (doc. 95) should be granted as to plaintiff Clark's claims and be denied as to plaintiff Martin's claims.

2. Deputy Sam Sherill

As noted above, in the second amended complaint, the plaintiffs also alleged the fifth (unreasonable seizure under the Fourth and Fourteenth Amendments), sixth (unreasonable and excessive force under the Fourth and Fourteenth Amendments), and seventh (bystander liability under the Fourth Amendment) causes of action against defendant Deputy Sherill of the ECSO (doc. 75). In his motion for summary judgment, Deputy Sherill moves for summary judgment as to all three claims brought under Section 1983 (doc. 96-1).

Notably, in their response to the ECSO defendants' motions for summary judgment, the plaintiffs fail to identify any disputed issues of fact regarding plaintiff Clark's claims, and they limit their arguments to plaintiff Martin's claims against Deputy Sherill (doc. 110 at 6-14). Plaintiff Clark could not identify the officer or officers who tackled and punched him, and his wife testified in her affidavit that an ACSO deputy tackled and punched Clark. Further, Deputy Sherill testified that he had no involvement in the incident involving plaintiff Clark, and he did not remember ever seeing Clark the night of the concert (doc. 96-3, Sherill dep. 55). There is absolutely no evidence upon which a reasonable factfinder could determine that defendant Deputy Sherill violated plaintiff Clark's constitutional rights by subjecting him to an unreasonable seizure, by using unreasonable and excessive force against him, or by choosing not to act to prevent harm by a fellow officer who was violating Clark's constitutional rights. Accordingly, summary judgment should be granted to Deputy Sherill on plaintiff Clark's claims against him in the fifth, sixth, and seventh causes of action.

With regard to plaintiff Martin's claims, Deputy Sherill argues that the evidence in the record does not give rise to a claim against him under Section 1983 as his actions were objectively reasonable based on his perception at the time of the incident when he observed plaintiff Martin struggling with ACSO deputies, who were attempting to get Martin under control (doc. 96-1 at 5-7; doc. 121 at 4). It is undisputed that Deputy Sherill participated in taking Martin to the ground (doc. 96-3, Sherill dep. 47; doc. 95-2, D. Bowman dep. 52-53). However, as discussed above with regard to Deputy Bowman's motion, the evidence is very much disputed as to what happened prior to and during the takedown, and, viewing the evidence in a light most favorable to Martin, a reasonable trier of fact could find in his favor on the unlawful seizure and excessive force claims against Deputy Sherill. Accordingly, summary judgment should be denied on these claims.

Deputy Sherill further argues that there is no basis for a bystander liability claim against him as he had no reason to believe that any other officer involved with Martin was acting in violation of Martin's constitutional rights (doc. 96-1 at 8). In their response to the ECSO defendants' motions for summary judgment, the plaintiffs note that “[t]here is an alternative claim for bystander liability against Defendant Dexter Bowman” (doc. 110 at 6) (emphasis added), and in their analysis, the plaintiffs discuss only the bystander liability against Deputy Bowman (id. at 12-13). Accordingly, it appears that the plaintiffs have abandoned the bystander liability claim against Deputy Sherill as alleged in the second amended complaint (see doc. 75 at 12-13). Moreover, the plaintiffs have failed to meet their burden under Rule 56 of demonstrating that specific, material facts exist that give rise to a genuine issue as to the bystander liability claim against Deputy Sherill. Celotex Corp., 477 U.S. at 324. As such, Deputy Sherill's motion should be granted as to plaintiff Martin's bystander liability claim against him.

Lastly, Deputy Sherill argues that he is entitled to qualified immunity (doc. 961 at 8). However, as discussed above, factual issues critical to the resolution of plaintiff Martin's claims are contested, and, therefore, the district court should deny Deputy Sherill's motion for summary judgment on qualified immunity grounds on the unlawful seizure and excessive force claims.

Based upon the foregoing, Deputy Sherill's motion for summary judgment (doc. 96) should be granted as to plaintiff Clark's claims and plaintiff Martin's bystander liability claim and be denied as to plaintiff Martin's remaining claims.

3. Sheriff Rowland in his representative capacity for the ECSO

As noted above, the plaintiffs alleged their first (battery), second (false imprisonment), third (assault), and fourth (gross negligence) causes of action against the ECSO (doc. 75). Sheriff Rowland in his representative capacity for the ECSO moves for summary judgment as to all four state law causes of action (doc. 94).

a. Gross Negligence

In their response, the plaintiffs state they are withdrawing their claim of gross negligence that was asserted against the ECSO in the fourth cause of action (doc. 110 at 16). Accordingly, summary judgment should be granted to Sheriff Rowland in his representative capacity for the ECSO on this cause of action.

b. Plaintiff Clark's Claims

As discussed above, plaintiff Clark has failed to present evidence that Deputies Bowman or Sherill or any other deputy employed by the ECSO assaulted, battered, or falsely imprisoned him. Accordingly, summary judgment likewise should be granted as to plaintiff Clark's state law claims against Sheriff Rowland in his representative capacity for the ECSO.

c. Plaintiff Martin's Claims

As to plaintiff Martin's claims, Sheriff Rowland in his representative capacity for the ECSO argues that there is no credibile evidence that any ECSO deputy committed an assault and/or battery upon Martin, and, therefore, plaintiff Martin's state law claims fail (doc. 94-1 at 5). However, as discussed above, Amanda Clark averred in her affidavit that she saw Deputy Dexter Bowman and another ECSO deputy take Martin to the ground, and she saw the other ECSO deputy “stomp” Martin's leg (doc. 110-1, A. Clark aff. ¶ 4). Accordingly, issues of material fact remain on the assault and battery claims, as well as on the false imprisonment claim.⁹

9 Sheriff Rowland does not specifically address the false imprisonment claim in his motion (see generally doc. 94-1).

Sheriff Rowland further argues that he is entitled to immunity pursuant to South Carolina Code Annotated § 15-78-60, which provides certain exceptions to the waiver of immunity provided in the SCTCA (doc. 94-1 at 5-6). S.C. Code Ann. § 15-78-60. Specifically, subsection six states that “[t]he governmental entity is not liable for a loss resulting from: . . . (6) . . . the failure to provide [or] the method of providing police or fire protection.“ Id. § 15-78-60(6).¹⁰ Sheriff Rowland argues that the ECSO's efforts to provide police protection to the patrons at the concert “were frustrated and made difficult by virtue of the fact that the crowd was unruly and the security staff was outmanned” and further argues that the individual ECSO deputies “performed their duties on the night of October 25, 2018, under very difficult circumstances[,] and the immunity provided to them and the Sheriff under the [SCTCA] entitles them to summary judgment” (doc. 94-1 at 5-6). The burden of establishing a limitation upon liability or an exception to the waiver of immunity under the SCTCA is upon the governmental entity asserting it as an affirmative defense. Strange v. South Carolina Dep't of Highways and Pub. Transp., 445 S.E.2d 439, 440 (S.C. 1994). Sheriff Rowland in his representative capacity for the ECSO has failed to do so here. As discussed above, issues of material fact remain on plaintiff Martin's Fourth Amendment excessive force and unlawful seizure claims against the individual defendant ECSO deputies. “[W]hen a Sheriff's deputy uses 'force greater than is reasonably necessary under the circumstances' the governmental agency may be liable for battery.” Barfield v. Kershaw Cnty. Sheriff's Off., 638 Fed.Appx. 196, 201 (4th Cir. 2016) (quoting Roberts v. City of Forest Acres, 902 F.Supp. 662, 671-72 & n. 2 (D.S.C.1995)). See Risher v. Chapman, 2:16-cv-292-DCN-MGB, 2018 WL 7824448, at *9 (D.S.C. Nov. 20, 2018), R&R adopted by 2019 WL 926414 (D.S.C. Feb. 26, 2019) (“Because summary judgment is denied on Plaintiffs' § 1983 claim, there is a genuine issue of material fact as to whether Defendants Strickland and the CCSO are liable under the SCTCA for the actions committed by Chapman.” (citing Barfield v. Kershaw Cnty. Sheriff's Office, 638 Fed.Appx. 196, 201-03 (4th Cir. 2016) (“[I]n the case of a viable excessive force claim under § 1983, Barfield's SCTCA battery claim against the KCSO also survives [summary judgment].”))). Accordingly, the motion for summary judgment of Sheriff Rowland in his representative capacity for the ECSO should be denied as to Martin's assault, battery, and false imprisonment state law claims.

10 The Supreme Court of South Carolina “has previously held this statute contains a scrivener's error. The conjunctive 'or' is missing. Therefore, the statute is properly read as the governmental entity is not liable for the failure to provide or the method of providing police or fire protection.” Huggins v. Metts, 640 S.E.2d 465, 467 n.2 (S.C. 2006) (citing Wells v. City of Lynchburg, 501 S.E.2d 746, 750 (S.C. Ct. App.1998)).

Wherefore, based upon the foregoing, the motion for summary judgment by defendant Sheriff Rowland in his representative capacity for the ECSO should be granted as to all of plaintiff Clark's state law claims and plaintiff Martin's gross negligence claim and be denied as to plaintiff Martin's remaining state law claims.

B. ACSO Defendants

1. Individual Defendant ACSO Deputies

As noted above, the plaintiffs also alleged the fifth (unreasonable seizure under the Fourth and Fourteenth Amendments), sixth (unreasonable and excessive force under the Fourth and Fourteenth Amendments), and seventh (bystander liability under the Fourth Amendment) causes of action against the individual defendant ACSO deputies (doc. 75). The ACSO defendants move for summary judgment on these claims (doc. 97-1 at 4-7).

a. Failure to Identify Conduct of Individual Defendant ACSO Deputies

The ACSO defendants first argue that the plaintiffs have failed to identify in sworn testimony or by competent evidence that any of the named individual defendant ACSO deputies were personally involved in the alleged seizure or the alleged use of excessive force upon the plaintiffs. The undersigned agrees. To assert a viable Section 1983 claim against a particular law enforcement officer, the plaintiffs must allege and prove a causal connection or affirmative link between the conduct of which they complain and the officer sued. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution). The Supreme Court of the United States has explained that a Section 1983 plaintiff must show that he suffered a specific injury as a result of specific conduct of a defendant and an affirmative link between the injury and that conduct. Rizzo v. Goode, 423 U.S. 362, 371-372 (1976). The Court of Appeals for the Fourth Circuit is in accord. In Vinnedge v. Gibbs, the Fourth Circuit held that "liability will only lie where it is affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights." 550 F.2d 926, 928 (4th Cir. 1977). See Wright v. Collins, 766 F.2d 841,850 (4th Cir. 1985) ("In order for an individual to be liable under § 1983, it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights").

Neither plaintiff was able to identify the officers who tackled them or each other, and they could not say that the officers involved were even ACSO deputies (doc. 972, Clark dep. 78-81, 88, 100, 107-108, 144-46; doc. 97-3, Martin dep. 26-32, 99-102). Moreover, the ECSO deputies who were deposed could not identify any ACSO deputy or deputies who were involved in the incidents with plaintiffs Martin and Clark (doc. 97-5, D. Bowman dep. 43-44, 96-97; doc. 97-6, Sherill dep. 28-29, 33-34, 72, 75-76; doc. 97-7, Densmore dep. 41, 64-66). Further, the individual defendant ACSO deputies each submitted affidavits attesting that they are familiar with the plaintiffs' allegations, but they were not involved in any such incident (docs. 97-8 to 97-17).

In their response to the motion for summary judgment, the plaintiffs argue at length that the individual defendant ACSO deputies did not have “reasonable suspicion to place [the plaintiffs] in investigative detention,” the “force used by [the individual ACSO deputies] violated their Fourth Amendment rights to be free from excessive force,” “there are several ways [the individual ACSO deputies] can be held accountable for failing to intervene,” and qualified immunity does not apply (doc. 111 at 7-18). With regard to the important missing link of any evidence that the individually named defendant ACSO deputies had any part in the alleged incidents, the plaintiffs note that the “individual deputies who were on assignment [at the concert] have been identified and added as defendants” on the Fourth Amendment claims “for illegal detention and excessive force” (doc. 111 at 14). Instead of presenting evidence that any of the individual defendant ACSO deputies acted personally in violating the plaintiffs' constitutional rights, the plaintiffs raise a spoliation argument and ask the court "to allow the jury to draw an adverse inference against the individual defendants" such that the jury “may assume the missing body camera footage was adverse to the individual defendant deputies and they can assume they participated in the detention and assault on the [p]laintiffs” (doc. 111 at 15-16). The plaintiffs ask the court “to keep the individual Defendants in the case at this time based on the adverse inference” (id. at 16). The district court should decline to do so for the reasons discussed below.

b. Spoliation

The plaintiffs present the following evidence in support of their spoliation argument. Captain Abdullah¹¹ of the ACSO testified that the ACSO deputies working at the concert would have been wearing their body cameras (doc. 111-6, Abdullah dep. 22). The cameras were to be activated if the deputies “encountered a situation or incident with someone,” and he expected the deputies “to make every attempt to activate their camera if possible” if they went “hands-on with people” (id. 22-23). He further testified that the deputies would download their body cameras when they were full, and the ACSO's system was “set up to erase the video off the server after 90 days” (id. 32, 34). The following Monday after the concert, plaintiff Clark and Amanda Clark went to the ACSO to speak to Captain Abdullah and file a complaint regarding the treatment the plaintiffs received at the concert. Captain Abdullah testified that, after that meeting, he made sure all of the deputies at the concert downloaded their body camera footage so that he could review the videos (id. 38, 41). On October 25, 2018, a preservation letter was sent to the ACSO by the plaintiffs' counsel, demanding that all documents and recordings pertaining to the incident at the concert be preserved for future litigation (doc. 111-7 at 2-5). On November 20, 2018, Captain Abdullah responded that the ACSO did not have any recordings or documents associated with plaintiffs Clark or Martin (id. at 6). The plaintiffs' counsel thereafter served discovery on Sheriff Hunt in his representative capacity for the ACSO, requesting production of, inter alia, body camera footage. On July 30, 2020, the ACSO responded that there was “[n]one at this time” (doc. 111-8 at 3).

11 In their response to the motion for summary judgment, the plaintiffs identify Captain Abdullah as a defendant (doc. 111 at 4-5). He is not a named defendant in this case (see doc. 75).

Spoliation is "the destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (citation omitted). The Fourth Circuit has explained that "[u]nder the spoliation of evidence rule, an adverse inference may be drawn against a party who destroys relevant evidence." Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir. 1995).

“Under federal law, a court's authority to levy sanctions on a spoliator ultimately derives from two main sources. First, there is the ‘court's inherent power to control the judicial process and litigation, a power that is necessary to redress conduct which abuses the judicial process.' ” Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 505 (D. Md. 2009) (quoting United Med. Supply Co. v. United States, 77 Fed.Cl. 257, 263-64 (2007)). Second, there is Federal Rule of Civil Procedure 37(e) which

governs spoliation of electronically stored information (“ESI”). Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 103 (E.D. Va. 2018).

GMS Indus. Supply, Inc. v. G&S Supply, LLC, C. A. No. 2:19-CV-324 (RCY), 2022 WL 853626, at *3 (E.D. Va. Mar. 22, 2022). A party seeking sanctions for spoliation must prove each of the following elements:

(1) The party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.

Goodman, 632 F.Supp.2d at 509 (internal quotation marks and citation omitted). While the burden of proof on a motion for spoliation sanctions is unsettled, “the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference is sought.” Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018).

Even assuming a request for sanctions for spoliation may be made in absence of a motion and for the first time in opposition to a motion for summary judgment, the plaintiffs have failed to demonstrate that they can even seek spoliation sanctions against the individual defendant ACSO deputies. The individual defendant ACSO deputies were not added to this lawsuit until the filing of the second amended complaint on September 3, 2021 (doc. 75),¹² which was nearly three years after Captain Abdullah responded by letter to the plaintiffs' lawyer that the ACSO did not have any recordings associated with the plaintiffs and over a year after the ACSO responded to the plaintiffs' discovery stating that there was no body camera footage. After the individual defendant ACSO deputies were named, the plaintiffs never served them with any written discovery and never took any of their depositions. It is well settled that "[a] party seeking sanctions based on the spoliation of evidence must establish, inter alia, that the alleged spoliator had a duty to preserve material evidence." Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013). Importantly, "spoliation does not result merely from the negligent loss or destruction of evidence." Id. (citation omitted), "Rather, the alleged destroyer must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence's loss or destruction." Id. (citation omitted). The plaintiffs, however, have presented this court with no evidence that any of the individual defendant ACSO deputies are guilty of the spoliation of evidence, as there is no evidence that any of them had in their possession body camera footage of any interactions with the plaintiffs, that they did not download their body cameras from the concert, and/or that they destroyed any body camera footage whatsoever. Moreover, the plaintiffs have not shown by clear and convincing evidence (or any standard for that matter) that any of the individual defendant ACSO deputies had a duty to preserve material evidence as the preservation letter was sent to the ACSO, and there is no evidence that any of the individual defendant ACSO deputies were aware of the letter or that they could have taken any action to preserve any body camera footage.

12 At that time, the lawsuit had been pending in federal court for over 26 months.

Moreover, as argued by the ACSO defendants, the plaintiffs' request for sanctions is untimely. “Courts have identified several factors that can be used to assess the timeliness of spoliation motions,” including “how long after the close of discovery the relevant spoliation motion has been made”; “the temporal proximity between a spoliation motion and motions for summary judgment”; “whether the spoilation was made on the eve of trial”; “whether there was any governing deadline for filing spoliation motions in the scheduling order issued pursuant to Federal Rule 16(b) or by local rule”; “and the explanation of the moving party as to why the motion was not filed earlier.” GMS Indus. Supply, Inc., 2022 WL 853626, at *4 (internal quotation marks and citation omitted). “The lesson to be learned from the cases that have sought to define when a spoliation motion should be filed in order to be timely is that there is a particular need for these motions to be filed as soon as reasonably possible after discovery of the facts that underlie the motion.” Goodman, 632 F.Supp.2d at 508. Here, the plaintiffs request for sanctions for spoliation was made more than four months after discovery closed (see doc. 83), over a year after Captain Abdullah's deposition was taken (doc. 111-6), and nearly two years after the ACSO responded to the plaintiffs' discovery stating that it did not have body camera footage from the concert (doc. 111-8 at 3). Moreover, the request was made not by motion but in response to a motion for summary judgment nearly three years after the case was filed and on the eve of trial.¹³ See Ferrone v. Onorato, C. A. No. 05-303, 2007 WL 2973684, at *10 (W.D. Pa. Oct. 9, 2007) (spoliation argument should have been made in “appropriate discovery motion,” and not in “opposition to summary judgment [motion]”); Glenn v. Scott Paper Co., C. A. No. 92-1873, 1993 WL 431161, at *17 n. 3 (D.N.J. Oct. 20, 1993) (spoliation argument used to defend a summary judgment motion was untimely, as the plaintiff did not raise any concerns “during the discovery phase or bring them to the attention of the magistrate [judge]”)). Further, the plaintiffs have provided absolutely no explanation as to why a motion was not filed earlier. Accordingly, the plaintiffs' spoliation argument should be rejected.

13 The undersigned has repeatedly reminded the parties that, should this case survive summary judgment, due to the age of this case, the district court may set the case for trial so that it will be completed by September 30, 2022 (see doc. 104).

Based upon the foregoing and viewing the evidence in a light most favorable to the plaintiffs, the plaintiffs have failed to show evidence upon which a reasonable factfinder could determine that any of the individual defendant ACSO deputies illegally seized the plaintiffs, used excessive force against them, or were even present during the incident under a theory of bystander liability. Accordingly, summary judgment should be granted to the individual defendant ACSO deputies on the plaintiffs' Section 1983 claims against them.¹⁴

14 The plaintiffs also argue that “causation, joint and several liability, and integral participation theories make each individual participant responsible for the violation of the [p]laintiff's rights” (doc. 111 at 19). The plaintiffs' argument is flawed, of course, in that they have failed to present evidence that the individual defendant ACSO deputies were “participants” in the incident at issue. Accordingly, this argument should be rejected.

2. Defendant Deputy Tony Wilson

Defendant Tony Wilson, identified as a deputy with the ACSO, was added as a defendant in the second amended complaint, which was filed on September 3, 2021 (doc. 75 at 6). Wilson has not appeared in this action, and the plaintiffs have not filed proof of service of the summons and second amended complaint on this defendant.¹⁵ The undersigned recommends that summary judgment be granted in favor of defendant Wilson for the same reasons discussed above with regard to the other individual defendant ACSO deputies.¹⁶ In the alternative, the undersigned recommends that defendant Wilson be dismissed form this case pursuant to Federal Rule of Civil Procedure 4(m).¹⁷ This report and recommendation should serve as the required notice to the plaintiffs under Rule 4(m). See Gittens v. Equifax, 687 Fed.Appx. 299, 299 (4th Cir. 2017) (“'As indicated by the plain language of Rule 4(m), notice to the plaintiff must be given prior to a sua sponte dismissal.'” (quoting Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002)).

15 The ACSO defendants state in their motion for summary judgment that Wilson was never served with the second amended complaint (doc. 97-1 at 2). In their response to the ACSO defendants' motion for summary judgment, the plaintiffs did not respond to this statement (see generally doc. 111).

16 Courts have held that if one defendant is granted a motion for summary judgment, the district court may sua sponte enter summary judgment in favor of nonmoving, additional defendants if the motion raised by the first defendant is equally effective in barring the claim against the other defendants, and the plaintiff had an adequate opportunity to argue in opposition to the motion. Uzzell v. Murray, C. A. No. 5:17-cv-204-FDW, 2019 WL 4463332, at *5 n.5 (W.D. N.C. Sept. 17, 2019) (citations and internal quotation marks omitted). See also Hayes v. Rule, C. A. No. 1:03-CV-1196, 2005 WL 2136946, at *3 (M.D. N.C. Aug. 19, 2005), R&R adopted by 2005 WL 8167728 (M.D. N.C. Sept. 20, 2005).

17 Rule 4(m) provides, in pertinent part:

If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. . . .

Fed. R. Civ. P. 4(m).

3. Sheriff Hunt in his representative capacity for the ACSO

As noted above, the plaintiffs alleged their first (battery), second (false imprisonment), third (assault), and fourth (gross negligence) causes of action against the ACSO (doc. 75). Sheriff Hunt in his representative capacity for the ACSO moves for summary judgment as to all four causes of action (doc. 97-1 at 8-12)

a. Gross Negligence

In their response to the motion for summary judgment filed by the ACSO defendants, the plaintiffs state they are withdrawing their claim of gross negligence that was asserted in the fourth cause of action against Sheriff Hunt in his representative capacity for the ACSO (doc. 111 at 21). Accordingly, the motion for summary judgment should be granted on this cause of action.

b. Absolute Immunity

Sheriff Hunt argues that the ACSO is absolutely immune from liability under South Carolina Code Annotated § 23-24-30, as the ACSO deputies who were working at the concert on the night in question were performing off-duty work (doc. 97-1 at 8-9). The South Carolina Code provides in the chapter entitled “Off-Duty Private Jobs of Law Enforcement Officers” that "[u]niformed law enforcement officers, as defined in Section 23-23-10 . . . may wear their uniforms and use their weapons and like equipment while performing private jobs in their off duty hours with the permission of the law enforcement agency and governing body by which they are employed." S.C. Code Ann. § 23-24-10. Employing agencies must “determine before such off-duty work is approved that the proposed employment is not of such nature as is likely to bring disrepute on the agency, the officer, or the law enforcement profession, and that the performance of such duties and the use of such agency equipment is in the public interest.” Id. § 23-24-20. Further, the statute provides:

Off-duty work performed by law enforcement officers shall not be considered as work done within the scope of his employment and no public service district, municipality, county, state, or any of its political subdivisions shall be liable for acts performed by off-duty law enforcement officers as permitted by this chapter.

Id.. § 23-24-30.

The terms “off-duty work” and “off-duty private jobs” are not defined in the statute, and the parties have not cited - and this court has not found - cases considering the statute in situations similar to the one presented here.¹⁸ As noted above, the ACSO's Policies and Procedures regarding secondary employment define “extra-duty employment” as “[a]ny secondary employment that is conditioned on the actual or potential use of law enforcement powers by the off-duty employee (i.e. Paid Special)” (doc. 103-3 at 1). It is undisputed the ACSO provided “extra-duty” officers to perform actual or potential law enforcement powers for the concert via a contract/purchase order with Extra Duty and its customer, Row Crop. While the concert was held in Edgefield County, the ACSO assisted the ECSO by providing officers for the concert and was allowed to provide mutual aid to the ECSO via inter-agency agreement (doc. 103-7, Abdullah dep. 16). Here, the ACSO controlled whether, when, how and what equipment officers used to engage in extra-duty employment. The deputies' extra-duty pay was routed through the ACSO payroll, it was treated just as if it were a regular duty assignment, deputies had to conform to all ACSO policies and procedures, and the assignment, fulfillment, and management of extra-duty work was controlled by the Sheriff and his office according to the ACSO's policies. The ACSO could even require deputies to perform extra-duty work assignments. Further, while working extra-duty, deputies are covered by county insurance. At the concert at issue here, the ACSO deputies were dressed in their uniforms, Captain Abdullah was the ranking officer, he had direct authority for the ACSO deputies working the concert, and neither Extra Duty nor Row Crop could direct the deputies or tell them what to do (Id. 12-15; doc. 1033).¹⁹

18 In the only case citing Section 23-24-30 that is noted by any party (doc. 97-1 at 9), the Court of Appeals of South Carolina ruled that an off-duty Spartanburg police officer working as a security guard for Wal-Mart was not acting in the scope of his employment as a police officer for the City of Spartanburg at the time of the incident in question, and thus the statute of limitations for the SCTCA did not apply to the plaintiff's assault and battery claim against the officer. Langham v. Porter, App. Case No. 2017-001009, 2020 WL 3574521, at *3 (S.C. Ct. App. July 1,2020). No discussion of the statute was provided, and the circumstances in that case appear to be quite different than those presented here.

19 Likewise, Sergeant Densmore of the ECSO testified that at the concert he “took direction from [his] chain of command” (doc. 113-2, Densmore dep. 12).

Given the evidence before the court, the undersigned cannot recommend that the district court find - as a matter of law - that Sheriff Hunt in his representative capacity for the ACSO is entitled to absolute immunity pursuant to Section 23-24-30 for the conduct of the ACSO deputies during their “extra-duty employment” at the concert where the incidents involving the plaintiffs occurred.

c. Clark's Claims

Sheriff Hunt in his representative capacity for the ACSO further argues that plaintiff Clark has failed to present evidence that the alleged tortious conduct inflicted on him was at the hands of any deputy employed by the ACSO (doc. 97-1 at 10). Neither of the plaintiffs were able to testify that the officers involved in the incident with Clark were ACSO deputies (doc. 110-2, Martin dep. 26-30; doc. 110-3, Clark dep. 75-80), and Deputies Bowman and Sherill of the ECSO testified they did not see the incident involving Clark (doc. 95-2, D. Bowman dep. 71, 73; doc. 96-3, Sherill dep. 55). However, in response to the motion for summary judgment, the plaintiffs presented the affidavit of Amanda Clark, who testified that she saw an ACSO deputy “tackle [Clark] from behind, putting him in a chokehold and riding him to the ground” (doc. 111-1, A. Clark aff. ¶ 4). She further testified that the same ACSO “who was choking out [Clark] began to punch him in the back of the head while he was on the ground with his arms straight out, not resisting” (Id.). Accordingly, plaintiff Clark has presented evidence upon which a reasonable factfinder could determine that the alleged conduct (assault, battery, and false imprisonment) was committed by a deputy employed by the ACSO.

Based upon the foregoing, summary judgment should be granted to Sheriff Hunt in his representative capacity for the ACSO as to the plaintiffs' gross negligence claim and be denied as to the plaintiffs' remaining state law claims.

C. Security Defendants

In their second amended complaint, the plaintiffs alleged the first, second, and third causes of action for battery, false imprisonment, and assault against defendants Row Crop, Freeman, and Rock Solid (collectively, “the Security defendants”) for joint and several liability with the ACSO and ECSO under a theory of respondeat superior. They further alleged the fourth cause of action against the Security defendants for negligence in failing to train security personnel, failing to properly staff the concert, and failing to properly patrol the concert (doc. 75). In his answer to the second amended complaint, defendant Sheriff Hunt in his representative capacity for the ACSO filed a crossclaim against the Security defendants for equitable indemnification (doc. 78). Row Crop and Freeman move for summary judgment as to all causes of action alleged against them (doc. 103).

1. Rock Solid

The plaintiffs added Rock Solid as a defendant in the second amended complaint, which was filed on September 3, 2021 (doc. 75). Rock Solid has not appeared in this action, and the plaintiffs have not filed proof of service of the summons and second amended complaint on this defendant. There is also no indication on the docket that Rock Solid was served with Sheriff Hunt's crossclaim, which was filed on September 17, 2021 (doc. 78).²⁰ As it appears that defendant Rock Solid has not been timely served with the second amended complaint and also has not been timely served with the crossclaim alleged against it by defendant Sheriff Hunt, the undersigned recommends that defendant Rock Solid be dismissed from this case pursuant to Rule 4(m). See Fed.R.Civ.P. 5(a)(2) (stating that even if a party is in default for failing to appear, “a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4”); see also Local Civ. Rule. 4.01 (D.S.C.) (“If a pleading asserting a claim is not served on each party against whom a claim is asserted within 90 days after the pleading is filed, the party filing the pleading shall, within the same period, file a status report advising the court of the identity of the party not served and why service has not been effected. This report shall be served on all previously served parties.). This report and recommendation should serve as the required notice to the plaintiffs (and defendant Sheriff Hunt regarding his crossclaim) under Rule 4(m). See Gittens, 687 Fed.Appx. 299.

20 In their motion for summary judgment, defendants Row Crop and Freeman note that Rock Solid was never served with any summons and complaint (doc. 103-1 at 2 n.2). The plaintiffs and Sheriff Hunt did not respond to this statement in their responses in opposition to Row Crop and Freeman's motion for summary judgment (see generally docs. 109, 113).

2. Row Crop and Freeman

As noted above, Row Crop organized and produced the concert at issue in this case, and Freeman provided a security team for the concert (doc. 103-1 at 2). Former defendant Extra Duty administered the ACSO's “extra-duty” program and facilitated the “customer order” from Row Crop for officers from the ACSO for “law enforcement and security” for the concert (doc. 103-4).

a. Respondeat Superior

The plaintiffs alleged in the first, second, and third causes of action for battery, false imprisonment, and assault that Row Crop and Freeman have “joint and several liability for the acts and omissions” of the ACSO and ECSO deputies and that they “served as employers of the deputies and are responsible under a theory of respondeat superior' (doc. 75 at 8-10). Row Crop and Freeman first argue that the plaintiffs have failed to establish that they are liable for the acts and omissions of the ACSO and ECSO deputies, because the evidence shows that they did not have an employment relationship with the deputies and that they had no authority to control the deputies' methods, manner, or materials used in the extra-duty law enforcement services provided by the deputies (doc. 103-1 at 8-11).

The parties agree (doc. 103-1 at 9; doc. 109 at 4; doc. 113 at 3) that under South Carolina law, "[t]he general rule is that an employer is not vicariously liable for the negligent acts of an independent contractor." Rock Hill Tel. Co., Inc. v. Globe Commc'ns, Inc., 611 S.E.2d 235, 238 (S.C. 2005). However, while Row Crop and Freeman argue that none of the recognized exceptions to this general rule apply here (doc. 103-1 at 9), Sheriff Hunt and the plaintiffs argue that the “non-delegable duty” or “non-delegable liability” exception applies (doc. 109 at 4-6; doc. 113 at 3-4). See Rock Hill Tel. Co., 611 S.E.2d at 238 ("An exception to the general rule is that a person who delegates to an independent contractor an absolute duty owed to another person remains liable for the negligence of the independent contractor just as if the independent contractor were an employee.").

As noted by Sheriff Hunt in his response in opposition to Row Crop and Freeman's motion for summary judgment, in Simmons v. Tuomey Regional Medical Center, the Supreme Court of South Carolina imposed "a nondelegable duty on hospitals with regard to the physicians who practice in their emergency rooms." 533 S.E.2d 312, 323 (S.C. 2000) (“Simmons II”). The court clarified the concept of a non-delegable duty as follows:

The term "nondelegable duty" is somewhat misleading. A person may delegate a duty to an independent contractor, but if the independent contractor breaches that duty by acting negligently or improperly, the delegating person remains liable for that breach. It actually is the liability, not the duty, that is not delegable. The party [that] owes the nondelegable duty is vicariously liable for negligent acts of the independent contractor.

Id. at 317 (emphasis in original). In citing cases where public policy dictated that “nondelegable liability” applies, the Supreme Court recognized that "the cited cases clearly illustrate that a person or entity entrusted with important duties in certain circumstances may not assign those duties to someone else and then expect to walk away unscathed when things go wrong." Id. at 318.

The plaintiffs and Sheriff Hunt thus argue that the court should find that providing security and crowd control during a concert in a private venue constitutes a non-delegable duty under the public policy of South Carolina such that the concert promoter, who is required by tort law to provide a safe and secure premises for the concert goers, cannot just "walk away unscathed when things go wrong" (doc. 109 at 6). The undersigned agrees. As noted by Supreme Court of South Carolina in Simmons II, the appellate courts of South Carolina “have applied the nondelegable duty doctrine in several situations.” 533 S.E.2d at 317. Specifically,

An employer has a nondelegable duty to employees to provide a reasonably safe work place and suitable tools, and remains vicariously liable for injuries caused by unsafe activities or tools under the employer's control. A landlord who undertakes repair of his property by use of a contractor has a nondelegable duty to see that the repair is done properly, and remains vicariously liable for injuries caused by improper repairs.

A common carrier has a nondelegable duty to ensure that cargo is properly loaded and secured, and remains vicariously liable for injuries caused by an unsecured load. A bail bondsman has a nondelegable duty to supervise the work of his employees, and remains vicariously liable for injuries caused by those employees. A municipality has a nondelegable duty to provide safe streets even when maintenance is undertaken by the state Highway Department, and remains vicariously liable for injuries caused by defective repairs.

Id. at 317-18 (citations omitted). Here, the undersigned recommends that the district court find that defendants Row Crop and Freeman had a non-delegable duty to provide for the safety and security of the attendees at the concert. Moreover, viewing the evidence in a light most favorable to the plaintiffs, issues of material fact remain as to the ACSO and ECSO deputies' alleged tortious conduct such that summary judgment should be denied on the plaintiffs' vicarious liability claims against Row Crop and Freeman.²¹

21 Moreover, as argued by the plaintiffs (doc. 111 at 22), their contention that the ACSO and ECSO deputies were working in the course and scope of their employment for the ACSO and ECSO and are subject to the SCTCA is not necessarily mutually exclusive with their contention that Row Crop and Freeman had a non-delegable duty and special relationship with the ACSO and ECSO making them vicariously liable for the acts of the deputies. See Maynard v. Kenova Chem. Co., 626 F.2d 359, 361-62 (4th Cir.1980) (recognizing the loaned servant doctrine, which "provides that an employee directed or permitted to perform services for another 'special' employer may become that employer's employee while performing those services," and noting that “[t]he doctrine is based upon the premise that an employee may have more than one employer while doing a specific act" (citation omitted)).

Row Crop and Freeman further argue that they should not be liable for the intentional torts allegedly committed by the ACSO and ECSO deputies (doc. 103-1 at 10 11). However, as noted by Sheriff Hunt in his response in opposition to the motion, the nondelegable duty doctrine may also apply to intentional torts committed by an employee for the benefit of an employer (doc. 109 at 5 n.2) In Crittenden v. Thompson-Walker Co., Inc., the Court of Appeals of South Carolina ruled that an employer was vicariously liable for an assault committed by an employee. 341 S.E.2d 385 (S.C. Ct. App. 1986). The court explained that "[i]f the servant is doing some act in furtherance of the master's business, he will be regarded as acting within the scope of his employment, although he may exceed his authority. On the other hand, if the servant acts for some independent purpose of his own, wholly disconnected with the furtherance of his master's business, his conduct falls outside the scope of his employment." Id. at 387 (citations and internal quotation marks omitted). In the case at bar, the plaintiffs have alleged that the ACSO and ECSO deputies used excessive force resulting in an assault, battery, and false imprisonment. There is evidence that any action taken by the deputies was within the scope of providing security and crowd control for the concert, which is what the deputies were retained to do for the Security defendants. As the Court of Appeals stated, "If there is doubt as to whether the servant in injuring a third party was acting at the time within the scope of his employment, the doubt will be resolved against the master, at least to the extent of requiring the question to be submitted to the jury for determination." Id. (citation omitted).

Accordingly, based upon the foregoing, Row Crop and Freeman's motion for summary judgment should be denied as to the first (battery), second (false imprisonment), and third (assault) causes of action alleged against them.

b. Negligence

In the fourth cause of action, the plaintiffs allege that the Security defendants were responsible for the organization and security of the Luke Bryan concert, they had a duty to safely provide security for patrons attending the concert, and they breached that duty by failing to train security personnel, by failing to properly staff the concert, and failing to properly patrol the concert (doc. 75 at 11). The plaintiffs allege that as a direct and proximate result of the Security defendants' breach of duty, the plaintiffs were seized and injured by security personnel (Id.). In their motion for summary judgment, Row Crop and Freeman argue that the plaintiffs have failed to present evidence that increased security measures would have prevented the plaintiffs' injuries or that these defendants failed to exercise reasonable care to protect the concert patrons from injury (doc. 103-1 a 11-13).

“A cause of action for negligence arises from the concurrence of three essential elements: (1) a duty of care owed by the defendant to the plaintiff; (2) the defendant's breach of that duty by a negligent act or omission . . .; and (3) damage proximately resulting from the breach of duty.” South Carolina Ins. Co. v. James C. Greene, Inc., 348 S.E.2d 617, 620 (S.C. Ct. App. 1986) (citations omitted).

The undersigned recommends that the district court deny Row Crop and Freeman's motion on the negligence cause of action. Here, the evidence viewed in a light most favorable to the plaintiffs shows that defendant Row Crop held a brief meeting before the concert to discuss security; law enforcement was instructed to refrain from arresting people and to allow them to enjoy themselves; there was no reserved seating; the crowd was very large and much bigger than expected; deputies were to be stationed to the left and right of the main crowd and scattered about everywhere; the ECSO had never worked crowd control for a concert that size; the ACSO had detention officers serving as crowd control as well; the deputies' ability to communicate was compromised because the music was so loud, and they were not able to hear half of the information being relayed over the radio channel set up for intra-security communication; the spotters on the stage would tell them to go to the right or to the left, but no more direction than that; and the deputies received no training in crowd control and had never worked an event of this size (doc. 1132, Densmore dep.22-25; doc. 113-3, Abdullah dep. 24; doc. 113-4, Sherill dep. 38-40). The deputies were overwhelmed by the crowd size, as well as the weather conditions, as it was extremely hot (doc. 113-3, Abdullah dep. 53-54; doc. 113-4, Sherill dep. 38-40). Further, Deputy Sherill testified that people had been drinking all day in the parking lot area before entering and that law enforcement was undermanned as they did not have enough deputies to cover and control the event (doc. 113-4, Sherill dep. 38-40). Captain Abdullah testified that at the briefing before the show, law enforcement was told not “to become a part of the show” and to try to keep their presence as minimal as possible (doc. 113-3, Abdullah dep. 24). There were in excess of 10,000 people at the concert, there was a lot of alcohol, port-a-johns were overflowing, people were getting sick because of the heat, and the scene was generally chaotic (Id. 53-54).

In Jeffords v. Lesesne, the Court of Appeals of South Carolina recognized that "a factual issue was presented as to whether [a bar owner's] failure to take precautions or to provide a reasonably sufficient number of servants to afford a reasonable protection against such criminal conduct on the part of third persons constituted negligence proximately causing [plaintiff's] injuries." 541 S.E.2d 847, 850 (S.C. Ct. App. 2000). In doing so, the court concluded that ”the place and the character of the activity was such as to raise a factual issue concerning the reasonable foreseeability of such conduct [assault of the plaintiff by an intoxicated bar patron] and the necessity of taking reasonable precautions, such as providing security or a reasonably sufficient number of servants, to afford protection.” Id. at 851 (emphasis in original). Further, in Greenville Memorial Auditorium v. Martin, the Supreme Court of South Carolina considered a case in which a patron of the auditorium was injured by a bottle thrown by another patron during a concert. 391 S.E.2d 546 (S.C. 1990). The patron alleged the auditorium and its employees were negligent in adequately securing and maintaining the premises during the concert, and this negligence created a reasonably foreseeable risk of such third-party conduct. Id. at 547. The trial court had granted summary judgment to the auditorium, which the Supreme Court reversed on appeal, finding that there was sufficient evidence for a jury to find the auditorium's negligence in securing the premises during the concert created an unreasonable risk of harm and proximately caused the patron's injury. Id. at 547-48. The court cited evidence that included only fourteen security guards were provided to control a crowd of 6,000 persons, there was no reserved seating on the main floor of the rock concert, the crowd was unruly, and many patrons were openly drinking out of liquor bottles. Id.

Similarly, here, a reasonable factfinder could determine that Row Crop and Freeman owed a duty of care to provide a safe environment to the concert attendees, including the plaintiffs. Moreover, it could determine that Row Crop and Freeman breached that duty by failing to train security personnel, failing to properly staff the concert, and/or failing to properly patrol the concert and that the plaintiffs were injured due to that breach. Accordingly, summary judgment should be denied on the negligence claim alleged by the plaintiffs against Row Crop and Freeman.

c. Equitable Indemnity Crossclaim

As noted, Sheriff Hunt in his representative capacity for the ACSO alleged a crossclaim against the Security defendants for equitable indemnity. Row Crop and Freeman argue that they should be granted summary judgment on the crossclaim (doc. 103-1 at 1315). The undersigned disagrees.

“The right of equitable indemnity arises out of the relationship between the indemnity plaintiff and the indemnity defendant. Traditionally, the courts have allowed equitable indemnity in cases of imputed fault or where some special relationship exists between the first and second parties.” Inglese v. Beal, 742 S.E.2d 687, 691 (S.C. Ct. App. 2013) (citation and internal quotation marks omitted). In order to prevail on the equitable indemnity crossclaim, Sheriff Hunt must prove the following: (1) Row Crop and Freeman were at fault in causing the plaintiffs' damages; (2) Sheriff Hunt in his representative capacity for the ACSO has no fault for those damages; and (3) Sheriff Hunt in his representative capacity for the ACSO has incurred expenses that were necessary to protect its interest in defending against the plaintiffs' claims. Id. at 692.

Row Crop and Freeman argue as follows in their motion: Sheriff Hunt cannot prevail on the second element of his crossclaim because the plaintiffs alleged that Sheriff Hunt in his representative capacity for the ACSO caused and/or contributed to their damages, and there can be no equitable indemnity among mere joint tortfeasors; no “special relationship” exists between the Security defendants and Sheriff Hunt; and the equitable indemnification claim is not yet ripe for adjudication (doc. 103-1 at 14-15). As discussed above, the undersigned finds that issues of material fact remain as to the fault of Row Crop, Freeman, and Sheriff Hunt in causing the plaintiffs' damages. See Holland v. Hucks Pool Co., Inc., C. A. No. 4:15-CV-00141-RBH, 2016 WL 6157491, at *5 (D.S.C. Oct. 24, 2016) (denying summary judgment on equitable indemnity crossclaim because genuine issues of material fact remained as to which party was at fault (citation omitted)). Moreover, Sheriff Hunt has presented evidence upon which a reasonable factfinder could determine that a “special relationship” existed between the parties. As noted, the ACSO entered into an agreement with Extra Duty to administer the ACSO's extra-duty program, and Extra Duty contracted with the Security defendants for extra-duty officer services, through which the Security defendants hired the ACSO deputies to provide security services for the concert. Further, as to the argument that the indemnity claim is not yet ripe, "[t]he damages [that] can be claimed under equitable indemnity may include . . . attorney's fees and costs [that] proximately result from the at-fault party's breach of contract or negligence." Town of Winnsboro v. Wiedeman-Singleton, Inc., 414 S.E.2d 118, 120 (1992) (citations omitted). "Recovery is allowed when as a result of defendant's breach of contract or tortious activity the plaintiff is required to either defend itself or bring an action against a third party." Id. at 121 (citation omitted). Here, as argued by Sheriff Hunt, he is self-insured through Aiken County and has incurred costs of his defense and in bring the crossclaim, which remain ongoing (doc. 109 at 11).

Based upon the foregoing, Row Crop and Freeman's motion for summary judgment should be denied as to the equitable indemnity crossclaim.²²

22 Row Crop and Freeman argue that if the equitable indemnity crossclaim is not dismissed, it should be severed from the case because Sheriff Hunt is not entitled to a jury trial on this claim (doc. 103-1 at 15). Should this case proceed to trial, this issue should be raised by appropriate motion.

V. CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the undersigned recommends as follows.

The motion for summary judgment (doc. 94) of defendant Sheriff Rowland in his representative capacity for the ECSO should be granted as to all of plaintiff Clark's claims and plaintiff Martin's claim of gross negligence and be denied as to plaintiff Martin's remaining state law claims.

Defendant Dexter Bowman's motion for summary judgment (doc. 95) should be granted as to all of plaintiff Clark's claims and be denied as to plaintiff Martin's claims.

Defendant Sherill's motion for summary judgment (doc. 96) should be granted as to all of plaintiff Clark's claims and plaintiff Martin's claim for bystander liability and be denied as to plaintiff Martin's remaining claims.

The ACSO defendants' motion for summary judgment (doc. 97) should be granted as to the claims against the individual defendant ACSO deputies. Further, summary judgment should be granted to defendant Tony Wilson, who has not appeared in this action, on the same basis. In the alternative, the undersigned recommends that defendant Wilson be dismissed from this case pursuant to Rule 4(m) based on the plaintiffs' failure to timely serve him with the second amended complaint. The motion should also be granted as to the plaintiffs' gross negligence claim against Sheriff Hunt in his representative capacity for the ACSO and should be denied as to the plaintiffs' remaining state law claims.

Defendants Row Crop and Freeman's motion for summary judgment (doc. 103) should be denied. The undersigned further recommends that defendant Rock Solid, which has not appeared in this action, be dismissed from this case pursuant to Rule 4(m) based upon the plaintiffs' failure to timely serve Rock Solid with the second amended complaint and defendant Sheriff Hunt's failure to timely serve Rock Solid with the crossclaim.

IT IS SO RECOMMENDED.

The attention of the parties is directed to the important notice on the following page.

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

250 East North Street, Suite 2300

Greenville, South Carolina 29601

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).