Opinion
C/A 2:18-3190-RMG-BM
01-15-2019
Thomas Heath, Plaintiff, v. Town of Isle of Palms, Isle of Palms Police Department, Mayor James Carroll, Acting Chief Kimberly S. Usry, Capt Swain, Sgt. Derrick D. Ambas, Officer James Couche, FTO Amanda Postell and Josua Phillips, Defendants.
REPORT AND RECOMMENDATION
This action was originally filed by the Plaintiff in the South Carolina Court of Common Pleas, Ninth Judicial Circuit, and was then removed to this United States District Court by the Defendants on November 27, 2018 on the ground that Plaintiff is asserting a federal cause of action under 42 U.S.C. § 1983 for violations of his constitutional rights. In his Complaint, Plaintiff asserts claims against all of the named Defendants for violation of his civil rights pursuant to § 1983, as well as state law claims for false imprisonment, negligence/gross negligence, slander/defamation of character, and assault and battery.
42 U.S.C. § 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 § 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).
Shortly after the removal of this action, the Defendants Isle of Palms Police Department, Carroll (the Mayor of the Isle of Palms) and Usry (the acting Police Chief of the Isle of Palms) filed a motion to dismiss pursuant to Rule 12, Fed.R.Civ.P., seeking dismissal as party Defendants. Specifically, the Isle of Palms Police Department argues that it is not a party capable of being sued for the claims asserted under state or federal law. See Hunt v. West Columbia Police Dept., No. 14-70, 2015 WL 4274827, at * 2 (D.S.C. July 14, 2015) [Holding that the Defendant West Columbia Police Department is not a "person" amenable to suit under § 1983]; Spellman v. City of Columbia Police Dept., No. 12-2376, 2012 WL 5409626, at * 2 (D.S.C. Sept. 28, 2012) [Holding that a police department is a group of officers in a building and, as such, is not subject to suit under § 1983], report and recommendation adopted by, 2012 WL 5408023 (D.S.C. Nov. 6, 2012); Terrell v. City of Harrisburg Police Dept., 549 F.Supp.2d 671, 686 (M.D.Pa. 2008) ["It is well-settled that police departments operated by municipalities are not 'persons' amenable to suit under § 1983"]; see also S.C. Code Ann. § 15-78-30(d) and (h) [Providing generally that the South Carolina Tort Claims Act (SCTCA) governs all tort claims in South Carolina against governmental entities, is the exclusive civil remedy available in an action against a governmental entity or its employees, and that the proper party defendant in the case at Bar would be the municipality, not the police department of the municipality].
As for the Defendants Carroll and Usry, these Defendants assert that they are entitled to dismissal as party Defendants because Plaintiff cannot bring his tort claims against them individually. See S.C.Code Ann. § 15-78-70(c) [providing that a person bringing an action against a governmental entity under the SCTCA shall name as a party defendant only the agency or political subdivision for which the employee was acting, not the individual employee]; see also Faile v South Carolina Dept. of Juvenile Justice, 566 S.E.2d 536, 543 (S.C.2002) [Holding that S.C.Code Ann. § 15-78-70(c) requires that "only the entity employing the employee whose act gives rise to the claim may be sued"]. Carroll and Usry also assert that they are entitled to dismissal as party Defendants in their official capacities under Plaintiff's § 1983 claim because such claims are actually against the entity, not the individual. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) [Holding that a § 1983 official capacity suit should be brought against "the entity", not against the individual, as the "real party in interest [for such a claim] is the entity"]. Finally, these two Defendants further assert that they are entitled to dismissal as party Defendants in their individual capacities because, inter alia, it is readily apparent that they are only named as party Defendants because of their supervisory positions, and that it is well established that the doctrine of respondeat superior is generally inapplicable to § 1983 suits. See Vinnedge v. Gibbs, 550 F.2d 926, 927-929 n. 1-2 (4th Cir. 1977) [The doctrines of vicarious liability and respondeat superior are not applicable to § 1983 cases].
The time for Plaintiff to respond to these Defendants motion to dismiss expired on December 13, 2018. Plaintiff never filed a response to these Defendants' motion or their arguments, or objected to the relief requested in any way. Therefore, it is recommended that the motion be granted. Cf. Coker v. International Paper Co., No. 08-1865, 2010 WL 1072643, at * 2["[A] plaintiff can abandon claims by failing to address them in response to a summary judgment motion."]; Jones v. Danek Medical, Inc., No. 96-3323, 1999 WL 1133272 at * 3 (D.S.C. Oct. 12, 1999)["The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action."]. If this recommendation is adopted by the Court, the Defendants Isle of Palms Police Department, James Carroll and Kimberly Usry will be dismissed as party Defendants in this case. The case will then proceed with Plaintiff's claims against the remaining Defendants.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 15, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).