Opinion
C. A. 6:20-cv-02599-DCC-JDA
03-22-2022
Lindsay A. Duneske, Plaintiff, v. Officer Bevill; Officer Whaley; Officer Goins; Officer McCoy; Officer Mann; Officer McMurrer; Captain Robinson, Defendants.[1]
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss filed by Defendants. [Doc. 70.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff filed this action pro se on July 13, 2020, asserting various claims against employees of the Greenville County Sheriff's Office ("GCSO") relating to their actions concerning a custody dispute between Plaintiff and her ex-husband. [Doc. 1.] She subsequently filed an Amended Complaint and a Second Amended Complaint. [Docs. 28; 45.] On July 20, 2021, Defendants Bevill, Goins, McCoy, Mann, McMurrer, and Robinson ("Moving Defendants") filed a motion to dismiss the Second Amended Complaint. [Doc. 70.] The next day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if she failed to adequately respond to the motion. [Doc. 71.] On October 26, 2021, Plaintiff filed a response opposing the Moving Defendants' motion [Doc. 79], and the motion is now ripe for review.
Plaintiff filed her initial Complaint on July 13, 2020. [Doc. 1.] On October 20, 2020, she filed an Amended Complaint. [Doc. 28.] On November 12, 2020, the undersigned issued a Report and Recommendation recommending that the action should be dismissed without service of process. [Doc. 34.] On January 22, 2021, Plaintiff filed objections to the Report and Recommendation. [Doc. 44.] Plaintiff also filed a Second Amended Complaint. [Doc. 45.] Construing Plaintiff's objections to the Report and Recommendation as a motion for leave to file a Second Amended Complaint, the Court granted the motion. [Doc. 50.] On April 29, 2021, this Court issued an Order requiring that Plaintiff bring her case into proper form. [Doc. 56.] On June 14, 2021, finding that Plaintiff had brought her case into proper form, this Court authorized issuance of Summons to the named Defendants. [Doc. 61.]
BACKGROUND
Plaintiff makes the following allegations in her Second Amended Complaint. [Doc. 45.]
During the week of July 4, 2018, Defendants instructed Plaintiff to travel from Michigan to South Carolina to receive assistance to enforce a family court custody order. [Id. ¶ 5.] On July 7, 2018, unidentified GCSO officers told Plaintiff "they would do a civil standby" at an agreed location "to exchange the minor children and enforce the court order." [Id. ¶ 6.] The standby did not occur, however, and Plaintiff therefore "followed the car with her children in it." [Id. ¶ 7.] While Plaintiff was following that car, Officers Goins and Mann "ran [her] off the road." [Id. ¶ 8.] Those two Defendants then took Plaintiff's keys and detained her for more than 20 minutes, "allow[ing her ex-husband] to abscond with the children." [Id. ¶¶ 9-10.] Goins and Mann also yelled at Plaintiff, telling her that they would find a reason to have her arrested if she did not leave Greenville. [Id. ¶ 11.] When Plaintiff asked what she had done that was illegal, they told her that they were very unhappy that she had contacted the South Carolina Law Enforcement Division ("SLED"). [Id. ¶ 12.] However, when they realized she was recording them, they allowed her to leave. [Id.]
Without explaining his reasoning, Robinson ordered the GCSO to refuse to help Plaintiff in any way, including by enforcing the court order. [Id. ¶ 13.] Then, over the next few days, Plaintiff obtained new information leading her to believe that her children were in imminent danger. [Id. ¶ 14.] However, when she called the GCSO and asked to make a police report, she was not allowed to do so as a result of Robinson's order. [Id.] On July 10, 2018, Plaintiff called 911 to request that an officer meet her so that the new information could be documented and so that the officer could perform a welfare check on her children. [Id. ¶¶ 15.] Responding to the call, Defendant McCoy "refused to document the information" and refused to do a welfare check on the children, stating that "'he would not harass a father.'" [Id. ¶ 16.]
Plaintiff also alleges that Defendants committed several acts of dishonesty, including that McCoy, Bevill, and Whaley "falsified police reports and outright lied to a [j]udge to obtain a warrant for [Plaintiff's] arrest[, ] stating that [she] had called 911 with the intent of falsely accusing her ex-husband of sex trafficking her children and turning them into his sex slaves for the sole purpose of making him look bad at court" [id. ¶ 17]; that Bevill "lied to Michigan CPS about [Plaintiff] so that she would be wrongfully put on a child abuse registry" [id. ¶ 18]; and that Bevill and Whaley "lied to a family court [j]udge and deliberately had [Plaintiff] arrested at a custody hearing," causing Plaintiff to lose custody of her children [id. ¶ 19]. She also alleges several other acts of misconduct, including that Bevill and Whaley "stalked, harassed, and slandered [Plaintiff] at several of the following proceedings (Family meetings, hearings etc. . . .) again mentioning how angry they were that she had called SLED to make a complaint against them [id. ¶ 21]; and that Defendant McMurrer neglected to read Plaintiff her Miranda rights and "unnecessarily twisted [Plaintiff's] arm while arresting her[, ] causing her shoulder to dislocate [and] tearing her rotator cuff and bicep tendon on her right side" [id. ¶ 20].
Further, Plaintiff alleges that "Defendants made several sexist/misogynistic comments" toward her in her dealings with them [id. ¶ 22]; that Defendants "denied [Plaintiff] body cam footage, supplemental reports, and other evidence allowed to her under the [Freedom of Information Act] that would have proven her innocence" [id. ¶ 23]; and "continually failed to enforce the custody order," "assisted [Plaintiff's] ex-husband in hiding," and "ke[pt] the children [away] from her in violation of the court order" [id. ¶ 24].
Plaintiff alleges that all charges were dropped against her in May 2020 as the result of "the video and audio evidence presented to the prosecutor that the involved officers willfully and knowingly lied to get a warrant." [Id. ¶ 25.] She adds that, because of Defendants' actions, she and her children have suffered emotional, physical, and financial hardship and harm. [Id. ¶ 26.]
Plaintiff asserts that she is bringing this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671, et seq., as well as 42 U.S.C. § 1983 and 18 U.S.C. §§ 241 and 242. [Id. ¶ 4.]
Although Plaintiff purports to bring a claim under the FTCA, which provides a limited waiver of sovereign immunity whereby the United States government submits itself to be sued in limited situations for negligent or wrongful acts or omissions of its employees, in which private individuals under similar circumstances would be liable under state law, 28 U.S.C. § 1346(b)(1), any such claim fails. “A suit under the FTCA lies only against the United States, and a federal district court lacks subject-matter jurisdiction over claims asserted against federal agencies or individual federal employees.” Carpenter v. Bragg, No. 8:15-cv-00574-GRA-JDA, 2015 WL 13734632, at *9 (D.S.C. Nov. 30, 2015), Report and Recommendation adopted by 2016 WL 845315 (D.S.C. Mar. 1, 2016). Plaintiff has not named the United States in this action, and the allegations in the Amended Complaint concern the conduct of state officials arising from her state criminal and family court proceedings. The named Defendants are all state employees, and Plaintiff makes no allegations against any federal employees. As such, Plaintiff provides no allegations to support a plausible claim under the FTCA. See Richardson v. F.B.I., No. 4:11-cv-00010-RBH-SVH, 2011 WL 1428968, at *4 (D.S.C. Mar. 8, 2011) (“[B]ecause Plaintiff does not name any specific federal employee, agent, or official, nor does he assert negligence on the part of any federal agency or employee, there is no basis on which the court could liberally construe a viable [FTCA] claim against any Defendant.”), Report and Recommendation adopted by 2011 WL 1429101 (D.S.C. Apr. 13, 2011).
Her Second Amended Complaint purports to allege causes of action for "[v]iolation of [f]ederal [r]ights" under 42 U.S.C. § 1983; "[c]onspiracy to [d]eprive [r]ights [u]nder [c]olor of [l]aw" under 18 U.S.C. §§ 241 and 242; false imprisonment; malicious prosecution; professional negligence; negligence; fraud; failure to properly investigate; "[b]reach of [p]roper standard of care"; violation of the Fourth Amendment; deprivation of due process; "[f]ailure to [i]ntervene"; "[i]ntention [i]nfliction of emotional, mental, and physical harm"; and unlawful arrest. [Doc. 45 at 1.] For her relief, she requests money damages and attorneys' fees, and she requests that criminal charges be brought against Defendants as appropriate. [Id. at 5.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
Some of the claims in this action are asserted pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. 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)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .”42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotation marks omitted). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (internal quotation marks omitted).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. At 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
Eleventh Amendment Immunity as to the Official-Capacity Claims
Moving Defendants argue that claims against them for monetary damages in their official capacity must be dismissed based on Eleventh Amendment immunity. [Doc. 70-1 at 5-6.] The Court agrees.
The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Further, Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity, ” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself, ” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Therefore, Eleventh Amendment immunity protects state agencies and state officials sued in their official capacity from liability for monetary damages under 42 U.S.C. § 1983. Id. Because South Carolina sheriffs and sheriff deputies are state employees, Edwards v. Lexington Cty. Sheriff's Dep't, 688 S.E.2d 125, 127 n.1 (S.C. 2010), to the extent Plaintiff has alleged a claim for monetary damages against Moving Defendants in their official capacities under § 1983, Moving Defendants are entitled to immunity pursuant to the Eleventh Amendment. See Wirtz v. Oconee Cty. Sheriff's Dep't, No. 8:13-1041-RMG, 2013 WL 5372795, at *1 (D.S.C. Sept. 24, 2013) (“Defendant Oconee County Sheriff's Department has Eleventh Amendment immunity from a suit for damages under § 1983.”). Accordingly, to the extent Moving Defendants are sued in their official capacities, Plaintiff's § 1983 claims should be dismissed.
Moreover, “state officials sued in their official capacity for monetary relief are not ‘persons' subject to suit within the meaning of § 1983.” Burns v. Cook, No. 6:18-cv-00073, 2018 WL 4935457 (W.D. Va. Oct. 11, 2018).
Failure to State a Claim
Moving Defendants also argue that Plaintiff has failed to plausibly allege facts stating a claim for any of the causes of action in her Second Amended Complaint. [Doc. 70-1 at 6-14.] The Court will address the claims against the various Defendants seriatim.
Plaintiff makes several general allegations against "the Defendants" without identifying how any of the named Defendants actually participated in the alleged actions. These include the following allegations:
22. Defendants made several sexist/misogynist comments towards [Plaintiff] throughout her dealings with them, several of which were recorded.
23. [Defendants] denied [Plaintiff] body cam footage, supplemental reports, and other evidence allowed to her under the FOIA that would have proven her innocence and cleared her name.
24. Defendants continually failed to enforce the custody order, even assisted [Plaintiff's] ex-husband in hiding and keeping the children from her in violation of the court order, consequently becoming accomplices in the custodial interference of her children.[Doc. 45 ¶¶ 22-24.] Moving Defendants argue that claims based on these allegations must be dismissed because they do not allege personal involvement of particular Defendants. [Doc. 70-1 at 8-10.] The Court agrees.The absence of any allegation of personal involvement by Moving Defendants means Plaintiff has failed to allege that any action or inaction on their part resulted in the alleged violation of Plaintiff's constitutional rights. See Vinnedge v. Gibbs, 550 F.2d 926, 929 (4th Cir. 1977) (“Having failed to allege any personal connection between [the defendant] and any denial of [the plaintiff's] constitutional rights, the action against him must fail.”); Lewis v. Lappin, No. 3:10CV426, 2011 WL 2414418, at *2 (E.D. Va. June 14, 2011) (“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed, even under the liberal construction to be given pro se complaints.” (citation and quotation marks omitted)). Accordingly, none of these allegations forms a basis for any claim against Moving Defendants.
Claims Against Goins and Mann
Plaintiff alleges that Goins and Mann illegally detained her when they "ran [her] off the road" while she was following her ex-husband and children and that Goins and Mann took her keys and detained her for more than 20 minutes. [Doc. 45 ¶¶ 8-10.] Moving Defendants argue that Plaintiff's claims arising out of these allegations should be dismissed because Plaintiff does not plausibly allege that Goins and Mann lacked authority to stop and detain her. [Doc. 70-1 at 11.] The Court disagrees.
The Fourth Amendment of the United States Constitution guarantees the right of the people to be free from unreasonable searches and seizures and provides that no warrants shall be issued except upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. U.S. Const. amend. IV. “The touchstone of [a court's] analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'” Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). “Reasonableness, of course, depends ‘on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'” Id. at 109 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). The public interest includes the public concern for officer safety while lawfully carrying out law enforcement effort. United States. v. Sakyi, 160 F.3d 164, 167 (4th Cir. 1998).
An officer may initiate a constitutionally acceptable traffic stop when the officer has “probable cause to believe that a traffic violation has occurred, ” Whren v. United States, 517 U.S. 806, 810 (1996), or a “reasonable articulable suspicion that criminal activity may be afoot” Terry v. Ohio, 392 U.S. 1, 30 (1968) (internal quotation marks omitted). In evaluating the validity of a traffic stop, the Court considers the totality of the circumstances. U.S. v. Sokolow, 490 U.S. 1, 8 (1989).
Plaintiff alleges that, after stopping her vehicle, Goins and Mann yelled at her and told her that "if she did not leave Greenville they would find a reason to have her arrested"; and that in response to Plaintiff's asking them what she had done that was illegal, they "stated that they were very unhappy that [she] had contacted SLED." [Doc. 45 ¶¶ 7-12.] Plaintiff alleged that they let her go only when she notified them that she was recording the interaction. [Id. ¶ 12.] The Court concludes that these allegations, taken as true, plausibly allege that Goins and Bevill stopped and detained Plaintiff in retaliation for her contacting SLED to make a complaint rather than for any legitimate reason. See Collington v. Maryland, No. GJH-20-966, 2021 WL 3172275, at *6 (D. Md. July 26, 2021) (denying a motion to dismiss a Fourth Amendment claim when the plaintiff alleged that the defendants stopped him without justification and later made contradictory statements about their reason for arresting him, including stating that they had an articulable suspicion but not explaining the subject matter of the suspicion); Gamble v. Barnette, No. 5:06-CV104, 2007 WL 2003418, at *5-6 (W.D. N.C. July 5, 2007) (denying a motion to dismiss a Fourth Amendment claim when the plaintiff alleged that the officer handcuffed him and refused to inform him of the reasons for doing so despite the plaintiff's protests that he was innocent of any wrongdoing). The Court therefore recommends that the motion to dismiss be denied to the extent that Moving Defendants seek dismissal of all claims against Goins and Mann arising out of their stop and detention of Plaintiff.
Claims Against Robinson
Plaintiff alleges that Robinson "ordered the [GCSO] to refuse to help [Plaintiff] enforce the court order or . . . assist her in any way and would not give her any reason as to why." [Doc. 45 ¶ 13.] She further alleges that "due to" this order, unidentified GCSO employees subsequently refused to allow her to file a police report. [Id. ¶ 14.]
The Court concludes that Plaintiff's allegations against Robinson are too vague to support her claims. To the extent that Robinson refused to assist Plaintiff in the enforcement of the order, Moving Defendants point out that the South Carolina Office of the Attorney General has expressly "advised against a sheriff or other law enforcement officer enforcing a custody order without such enforcement being expressly directed by the Family Court." Op. S.C. Atty. Gen., July 1, 2004, at 13. This Attorney General opinion observed that there are "no decisions---even in other jurisdictions---which ha[ve] directly held that a sheriff possesses the requisite authority to enforce a custody order by physically returning possession of the child to the legal custodial without being expressly ordered [by] a court to do so." Id. The Court notes that although "[u]nder South Carolina law, the Attorney General's opinions are not binding on the courts," United States v. Jones, 914 F.3d 893, 904 (4th Cir. 2019), they can be persuasive authority "[i]n the absence of any South Carolina law to the contrary," United States v. Lawson, 677 F.3d 629, 654 (4th Cir. 2012).
On this basis, the Court concludes that Plaintiff has not plausibly alleged that Robinson acted improperly and recommends that Moving Defendants' motion to dismiss be granted as to any claim against Robinson.
Claims Against McCoy and Bevill
Plaintiff alleges that McCoy, responding to her 911 call, "refused to document the information and when asked to do a welfare check on the children[, ] stated, 'he would not harass a father.'" [Doc. 45 ¶ 16.] Plaintiff also alleges that McCoy, Bevill, and Whaley arrested her illegally and that Bevill and Whaley "stalked, harassed, and slandered [Plaintiff] at several of the following proceedings (Family meetings, hearings[, ] etc.[]) again mentioning how angry they were that she had called SLED to make a complaint against them." [Id. ¶¶ 17, 19, 21.] Plaintiff further alleges that McCoy, Bevill, and Whaley "falsified police reports and outright lied to a [j]udge" and that Bevill "lied to Michigan [Child Protective Services] about [Plaintiff]." [Id. ¶¶ 17-18.] Moving Defendants argue that Plaintiff fails to state a claim against McCoy and Bevill based on any of these actions. [Doc. 70-1 at 11-14.] The Court agrees.
As for McCoy's refusal to perform a welfare check on her children, Plaintiff does not allege facts creating a reasonable inference that McCoy was obligated to accede to her request. And Plaintiff's allegations that she was stalked, harassed, slandered, and lied about, and that she was a victim of a falsified police report, are too lacking in factual detail to "nudge[] the[] claim[] across the line from conceivable to plausible." Twombly, 550 U.S. at 555; see also Francis, 588 F.3d at 193 ("[A] complaint is insufficient if it relies upon 'naked assertions' and 'unadorned conclusory allegations' devoid of 'factual enhancement.'"); Syed v. S.C. Vocational Rehab. Dep't, No. 2:14-CV-02576-RMG, 2015 WL 1622094, at *5 (D.S.C. Apr. 10, 2015) ("[E]ven pro se plaintiffs must set forth factual allegations sufficient to "nudge [] their claims across the line from conceivable to plausible" or "their complaint must be dismissed for failing to state a claim upon which relief can be granted.").
Plaintiff's factual allegations against McCoy and Bevill regarding her arrest and prosecution are insufficient as well. Section 1983 actions premised on false arrest, false imprisonment, or malicious prosecution are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”); Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (“What is conventionally referred to as a ‘§ 1983 malicious prosecution' action is nothing more than a § 1983 claim arising from a Fourth Amendment violation.”). The same is true of such claims complaining of due process violations. Brooks v. City of Winston-Salem, N.C. , 85 F.3d 178, 184 (4th Cir. 1996) (“[T]he Fourth Amendment provides all of the pretrial process that is constitutionally due to a criminal defendant in order to detain him prior to trial.”); see also McFadyen v. Duke University, 786 F.Supp.2d 887, 936 (M.D. N.C. 2011) (?[T]hese alleged Fourth Amendment violations are the claims already alleged by Plaintiffs in Counts 1 and 2, and there is no legal basis for asserting a separate <abuse of process' claim.”), aff'd in part, rev'd in part, dismissed in part sub nom. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012). The Second Amended Complaint alleges that Plaintiff was arrested pursuant to an arrest warrant. [Doc. 45 ¶ 17.] To state a claim that an arrest made pursuant to a warrant was not supported by probable cause, ?a plaintiff must [allege] that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in [the] plaintiff's favor.” Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017) (alteration in original) (internal quotation marks omitted). To demonstrate that an officer seized an individual pursuant to an arrest warrant without probable cause, a plaintiff must allege that the officer “deliberately or with a reckless disregard for the truth made material false statements in his affidavit or omitted from that affidavit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.” Miller v. Prince George's Cty., 475 F.3d 621, 627 (4th Cir. 2007) (internal citations and quotation marks omitted). For the officer to have acted with a “reckless disregard, ” he must have harbored “serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. With regard to alleged omissions from an affidavit, the officer must have failed to inform the magistrate of facts that the officer knew would negate a finding of probable cause. Id. Additionally, “the false statements or omissions must be material, that is, necessary to the neutral and disinterested magistrate's finding of probable cause.” Id. at 628 (alteration, internal citations, and quotation marks omitted).
Here, Plaintiff does not allege that the warrant McCoy, Bevill, and Whaley obtained was not supported by probable cause. She conclusorily alleges that the officers lied to obtain the warrant [Doc. 45 ¶ 17], but she does not specify what fact or facts the officers misrepresented, or even if the fact or facts were material. Accordingly, the Court concludes that Plaintiff has not plausibly alleged the second element of her claim.
Plaintiff also alleges that Bevill and Whaley lied to a family court judge and deliberately had her arrested at a custody hearing, causing her to lose custody of her children. [Doc. 45 ¶ 19.] However, Plaintiff does not specify what fact or facts the officers misrepresented to the family court judge and Plaintiff offers no support for the proposition that Bevill and Whaley violated her constitutional rights by arresting her at an inconvenient time. See Atwater v. City of Lago Vista, 523 U.S. 318, 354 (2001) (holding that arrest was constitutional when, although it "was surely humiliating, . . . it was no more harmful to . . . privacy or . . . physical interests than the normal custodial arrest" (internal quotation marks omitted)).
For all of these reasons, the Court recommends that Moving Defendants' motion to dismiss be granted as to all claims against McCoy and Bevill.
Claim Against McMurrer
Plaintiff's sole allegations against McMurrer are that he failed to read her Miranda rights and that he "unnecessarily twisted [her] arm while arresting her," "causing her shoulder to dislocate" and "tearing her rotator cuff and bicep tendon on her right side." [Doc. 45 ¶ 20.]
In Miranda v. Arizona, the Supreme Court held that the “prosecution may not use statements . . . stemming from a custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination, ” popularly known the right to remain silent. 384 U.S. 436, 444 (1966).
Regarding the Miranda allegation, Plaintiff has not plausibly alleged that she was entitled to be informed of her Miranda rights because she has not alleged that she was subjected to a custodial interrogation. See Wallace v. Branker, 354 Fed.Appx. 807, 824 (4th Cir. 2009) ("Miranda . . . warnings are not required unless there is both custody and interrogation." (citing Miranda, 384 U.S. at 467-68, 486)). And, to state an excessive-force claim, Plaintiff was required to allege facts showing that McMurrer applied force to her "maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986); Wilkins v. Gaddy, 559 U.S. 34 (2010). Because Plaintiff has not alleged such facts, she has failed to state a claim, and the Court recommends that Moving Defendants' motion to dismiss be granted regarding all claims against McMurrer.
Claims Based on Negligence
In listing her causes of action, Plaintiff identifies several claims that appear to be based on negligence, those being "[p]rofessional [n]eglience," "[n]egligence," "[f]ailure to [p]roperly [i]nvestigate," "[b]reach of [p]roper standard of [c]are," and "[f]ailure to [i]ntervene." [Doc. 45 at 1.] Moving Defendants argue that Plaintiff fails to state a claim under § 1983 for any such cause of action to the extent the claim is based on negligence. [Doc. 70-1 at 7.] The Court agrees.
The law is well settled that negligence is not actionable under § 1983. See, e.g., Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.”); Pink v. Lester, 52 F.3d 73 (4th Cir. 1995) (“[N]egligent deprivations of life, liberty, or property are not actionable under 42 U.S.C. § 1983.”); Ruefly v. Landon, 825 F.2d 792, 793 (4th Cir. 1987) (“Mere negligent conduct on the part of prison officials . . . does not constitute a violation of the eighth amendment's prohibition against cruel and unusual punishment.”). Thus, to the extent that any of Plaintiff's claims arise under a theory of negligence, such claims fail, as a matter of law, to state a claim under § 1983.
Conspiracy Claim
Plaintiff purports to assert a cause of action for civil conspiracy. Moving Defendants argue that Plaintiff fails to state a claim under § 1983 for any such cause of action. [Doc. 70-1 at 8.]. The Court agrees.
Plaintiff purports to assert her conspiracy claim under 18 U.S.C. §§ 241 and 242. However, those statutes are federal criminal statutes, and do not give rise to civil liability or authorize a private right of action. See Capps v. Long, No. 20-6789, 2021 WL 4843568, at *2 (4th Cir. Oct. 18, 2021).
"'To establish a conspiracy under [42 U.S.C.] § 1983, [a plaintiff] must present evidence that the [defendants] acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which resulted in [the] deprivation of a constitutional right.'" Glassman v. Arlington Cty., 628 F.3d 140, 150 (4th Cir. 2010) (alterations in original). The plaintiff "must come forward with specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective." Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). Accordingly, to survive a motion to dismiss, a plaintiff must allege facts giving rise to a reasonable "inference that [the defendants] positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan." Id.; see Washington v. Trident Med. Ctr., LLC, No. 2:20-cv-00953-RMG-MGB, 2021 WL 398894, at *5 (D.S.C. Jan. 11, 2021) ("Where the complaint makes only conclusory allegations of a conspiracy under § 1983 and fails to demonstrate any agreement or meeting of the minds among the defendants, the court may properly dismiss the complaint." (internal quotation marks omitted)), Report and Recommendation adopted by 2021 WL 287754 (D.S.C. Jan. 28, 2021).
Plaintiff does not plausibly alleges such an agreement here. Although she complains of specific acts committed by various Defendants, she does not plausibly allege any overall conspiratorial purpose. Accordingly, the Court recommends that Moving Defendants' motion to dismiss be granted as to any claim by Plaintiff of conspiracy.
In her response opposing Moving Defendants' motion to dismiss, Plaintiff requests that the Court grant her additional "time to correct the deficiencies in [her] pleadings." [Doc. 79 at 6.] The undersigned construes the request as a motion to amend the Second Amended Complaint and recommends that the motion be denied on futility grounds. Harley v. Barnes, No. 8:20-cv-03713-BHH-JDA, 2021 WL 4896993, at *7 (D.S.C. July 12, 2021), Report and Recommendation adopted by 2021 WL 4895896 (D.S.C. Oct. 20, 2021).
Defendant Whaley
As stated, Plaintiff has not served Whaley. Plaintiff filed her Second Amended Complaint on January 22, 2021. [Doc. 45.] The undersigned authorized service on all Defendants on June 14, 2021. [Doc. 61.] In that Order, the undersigned advised Plaintiff that she was responsible for providing information sufficient to identify each defendant such that the United States Marshal Service (“USMS”) could timely serve the summons and Complaint within the 90-day limit established by Federal Rule of Civil Procedure 4(m) and that any unserved defendant may be dismissed as a party if not served within that time limit. [Id. at 2.] The Order further noted that the 90-day period would begin on the date on which the summons was issued. [Id. at 1.] A summons for Whaley was issued on June 14, 2021. [Doc. 62.] However, on July 12, 2021, that summons for Whaley was returned unexecuted with the notation “No Officer Whaley is employed at GCSO. Need full name and correct address to serve." [Doc. 66.]
The Court provided Plaintiff with a blank summons and Form USM-285 and Ordered her on July 13, 2021, “to provide additional identifying information for" Whaley. [Docs. 68 at 2; 69.] The Court further instructed Plaintiff that, if she could not provide additional identifying information or an updated address, she had to notify the Court as to whether she agreed to dismiss Whaley or whether she sought additional time for service of process. [Doc. 68 at 2-3.] The undersigned again advised Plaintiff that she was responsible for providing information sufficient to allow the USMS to serve the summons and Second Amended Complaint within Rule 4(m)'s 90-day limit, that any unserved defendant might be dismissed as a party if not served within that time limit, and that the 90-day period would begin on the date on which the summons was issued. [Id. at 2-3.] The Court has received no response to its July 13th Order.
Rule 4(m) provides that unless a particular defendant is served within 90 days after the complaint is filed, this Court must dismiss an action without prejudice as to that particular defendant. Fed.R.Civ.P. 4(m). Here, the 90-day limit began to run when the first summons was issued on June 14, 2021. [Doc. 62.] Therefore, the deadline for service on Whaley was September 12, 2021. Because that deadline has passed, the undersigned recommends that Whaley be dismissed from this action without prejudice.
RECOMMENDATION
In light of all the foregoing, it is recommended that Moving Defendants' motion to dismiss be GRANTED IN PART AND DENIED IN PART. It is recommended that the motion be GRANTED as to all claims against against Bevill, McCoy, McMurrer, and Robinson; all claims against Goins and Mann in their official capacities; and all claims against Goins and Mann in their individual capacities under § 1983 for professional negligence, negligence, failure to properly investigate, breach of proper standard of care, and failure to intervene, and under § 1983 or 18 U.S.C. 241 and 242 for conspiracy. It is recommended that the motion be DENIED as to claims against Goins and Mann for an illegal stop. It is further recommended that Whaley be dismissed without prejudice for failure to timely serve him.
IT IS SO RECOMMENDED.