Opinion
C/A 4:22-cv-02312-JD-KDW
09-22-2023
RALPH WILSON, JR., personally and as Agent/Owner/Operator of Ralph Wilson Law PC d/b/a Ralph Wilson Law Firm LLC, Plaintiff, v. SOUTH CAROLINA LAW ENFORCEMENT DIVISION; ASHLEY JOLDA, individually and as an employee of South Carolina Law Enforcement Division; KEVIN STRICKLAND, as an employee of South Carolina Law Enforcement Division; HORRY COUNTY CLERK OF COURT; KEVIN BRACKETT, in his official capacity as Sixteenth Circuit Solicitor; MYRTLE BEACH POLICE DEPARTMENT; AMY PROCK, as Chief of Myrtle Beach Police Department; JARRED MACKIN, as an employee of Myrtle Beach Police Department; S.M. FULLWOOD, as an employee of Myrtle Beach Police Department; MATHEW CHIVATTONI, as an employee of Myrtle Beach Police Department; M.S. PAITSEL, as an employee of Myrtle Beach Police Department; S. CLOTHIER, as an employee of Myrtle Beach Police Department; B. DEVOID, as an employee of Myrtle Beach Police Department; L. COOK, as an employee of Myrtle Beach Police Department; OFFICER SHANNON, as an employee of Myrtle Beach Police Department; GRAY MEDIA GROUP, INC. d/b/a GRAY TELEVISION, INC. d/b/a WMBF; GRAY MEDIA GROUP, INC. d/b/a GRAY TELEVISION, INC. d/b/a WIS; SUN NEWS; FITSNEWS, LLC; SINCLAIR BROADCAST GROUP, INC. d/b/a WPDE; and MYRTLEBEACHSC NEWS; Defendants. v.
REPORT AND RECOMMENDATION DEFENDANT KEVIN BRACKETT)
Kaymani D. West, United States Magistrate Judge.
Ralph Wilson, Jr., personally and as agent/owner/operator of Ralph Wilson Law PC d/b/a Ralph Wilson Jr. Law Firm., LLC (“Plaintiff”)initially filed this lawsuit against several Defendants on May 31, 2022 in the Horry County Court of Common Pleas. This case was subsequently removed to federal court on July 19, 2022. ECF No. 1. Plaintiff Wilson, himself an attorney, brings several causes of action against the named Defendants. On February 13, 2023, Defendant Kevin Brackett, sued in his official capacity as Sixteenth Circuit Solicitor, filed a Motion to Dismiss Plaintiff's Complaint against him. ECF No. 75. Plaintiff filed a Response on March 13, 2023. ECF No. 80. On March 20, 2023, Defendant Brackett filed his Reply. ECF No. 81. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because Defendant's Motion is dispositive, the undersigned enters this Report and Recommendation (the “R&R”) for the district judge's consideration.
In the Caption of the Complaint, it appears to only reference one Plaintiff. However, at times throughout the pleadings Plaintiff is referred to in the plural as “Plaintiffs.” The undersigned will follow the caption reference and refer to Plaintiff in the singular form.
I. Factual Background
The allegations contained within Plaintiff's Complaint are lengthy and detailed, including allegations against multiple Defendants. However, nowhere within the factual allegations does Plaintiff alleged any conduct on the part of Defendant Brackett or his solicitors. Still, in order to appropriately consider the arguments made by the parties, a review of the facts is pertinent to the analysis.
The heart of Plaintiff's Complaint concerns an altercation between Plaintiff and his wife (“Ms. Wilson”) on or about January 24, 2021, which ultimately resulted in Plaintiff entering a guilty plea for charges stemming from the interaction. As alleged in the Complaint, on January 24, 2021, Defendants Mackin, Chivattoni, Fullwood, Paitsel, Clothier, Cook, Shannon and Defendant Myrtle Beach Police Department (“MBPD”) responded to a third-party, non-witness call received regarding a potential domestic altercation in Plaintiff Wilson's neighborhood. ECF No. 1-1 at 10. Defendants Mackin, Chivattoni, Fullwood, Paitsel, Clothier, Cook, Shannon are all alleged to be employees/officers with the MBPD. ECF No. 1-1 at 6-7. Defendant Ashley Jolda is alleged to be an officer with Defendant South Carolina Law Enforcement Division (“SLED”). ECF No. 1-1 at 5. Plaintiff alleges Ms. Wilson told Defendants Mackin and Fullwood that Plaintiff punched her, threw water on her, and took her work cell phone. ECF No. 1-1 at 10. Plaintiff alleges Ms. Wilson informed these Defendants that their children heard, but did not see, the alleged altercation. Id. Plaintiff alleges the children likewise told Defendant Fullwood that that they did not see anything and were not in the room, purportedly where the altercation occurred. Id. Plaintiff alleges that Defendants can be heard on a video discussing whether “two black dots” on Ms. Wilson's lips were injuries sustained as a result of an altercation with Plaintiff or the result of Botox. Id. Plaintiff alleges Ms. Wilson refused medical attention. Id.
Plaintiff alleges that Defendant Jolda arrived after Defendant MBPD officers spoke to and obtained video and written statements from Ms. Wilson. Id. at 11. Plaintiff alleges after speaking with Ms. Wilson for approximately 15 minutes, Defendant Jolda made the decision to arrest Plaintiff. Id. Plaintiff alleges at the time of his arrest he was in possession of video evidence that contradicted Ms. Wilson's statement. Id. Plaintiff alleges that Defendants SLED, Jolda, MBPD, Prock, Mackin, Fullwood, Chivattoni, Devoid, Clothier, and Cook produced photographs with “a color profile mismatch,” and used a non-functioning printer causing banding issues. Id. at 12.
Plaintiff alleges Ms. Wilson told MBPD Officer Shannon and Defendant Jolda that her children heard the altercation but were not in the room. Id. Plaintiff alleges one minor child told Defendant Jolda that she was upstairs, heard something, and came down to sit with her sister on the couch when she heard her parents fighting. Id. Plaintiff alleges this minor child told Defendant Jolda she had not seen physical arguments between her mother and father. Id. at 13. Plaintiff alleges the other minor child told Defendant Jolda she heard something but did not look. Id. The undersigned notes that within Plaintiff's Complaint, there are references to video interviews and places within the recording where these alleged statements were made; however, there was no transcript or video exhibit included with the Complaint.
Plaintiff alleges that Ms. Wilson informed Defendant Jolda that Plaintiff was considering running for chief prosecutor for Horry and Georgetown County, which Plaintiff alleges was then relayed to the Horry County Solicitor's Office. Id. Plaintiff alleges Defendant Jolda consulted with Fifteenth Circuit Solicitor Jimmy Richardson, II,and/or one of his agents or employees about procuring a warrant. Id. Plaintiff alleges Defendant Jolda presented an arrest warrant for a domestic violence charge. Id. Plaintiff alleges statements made within this arrest warrant were false and made deliberately by Defendant Jolda knowing them to be false or made with reckless disregard for the truth. Id. at 14. Plaintiff alleges the magistrate judge relied upon false statements within the arrest warrant to charge Plaintiff with domestic violence in the first degree. Id. Plaintiff alleges Defendant Jolda served the warrant for domestic violence on Plaintiff on January 25, 2021 at J. Reuben Long Detention Center. Id. Plaintiff further alleges Defendant Jolda produced false statements and compromised photographs to obtain this warrant. Id. Plaintiff alleges Defendant SLED issued a media release that included a copy of this search warrant containing the allegedly false statements to the news media. Id. Plaintiff alleges news outlets, relying upon Defendant Jolda's statements and Defendant SLED's media release, portrayed Plaintiff as a violent criminal who allegedly attacked a woman in front of her children. Id. at 15.
Jimmy Richardson, II, was initially named as a Defendant but dismissed from this lawsuit by a Stipulation of Dismissal on August 24, 2022. ECF No. 11.
Plaintiff alleges that he was placed on interim suspension from the practice of law by the South Carolina Supreme Court on February 1, 2021, which Plaintiff alleges was as a result of the arrest and allegations contained in the warrant. Id. at 16. Plaintiff alleges he and his practice Wilson PC lost contracts with SCCID,as well as other clientele, including corporate clients. Id. Plaintiff alleges he had to remove his law firm's media and advertisements, and he alleges he was deprived of earning income for over a year. Plaintiff alleges Defendant Strickland, acting is his official capacity under SLED, made inappropriate comments to Plaintiff's former clients and to another client of the firm regarding his arrest. Id.
Upon information and belief, he is referring to the South Carolina Commission on Indigent Defense.
Plaintiff alleges that on July 21, 2021, an indictment on the lesser included charge of domestic violence in the second degree was presented to the grand jury. Id. at 17. Plaintiff alleges Defendant Jolda produced false statements and compromised photographs to assist in the prosecution of Plaintiff. Id. Plaintiff alleges the grand jury, relying on Defendant Jolda's false statements, indicted Plaintiff. Plaintiff alleges that on December 6, 2021, he pled no contest to simple assault “with substantially different facts” than the ones presented by Defendant Jolda. Id. Plaintiff alleges he was unable to work and earn a living from January 24, 2021 through February 7, 2022. Id. at 18. Plaintiff alleges because of the misconduct and failure to investigate, Plaintiff suffered emotional and monetary damages. Id. Plaintiff alleges he has lost income as a result of the publishing of untrue facts about him, and he alleges he has lost good will and reputation within the community. Id.
Plaintiff alleges in the Complaint the factual allegations contained within the indictment included that Plaintiff Wilson “did offer or attempt to cause physical harm or injury to said household members with apparent present ability under circumstances reasonably creating fear of imminent peril. In addition, the defendant committed the offense in the presence of, or while being perceived by, a minor and/or the defendant committed the offense while using physical force, to block the victim's access to a cell phone . . . for the purpose of preventing, obstructing or interfering with the victim's efforts” to report a crime. ECF No. 1-1 at 17.
II. Standard of Review
Defendant Kevin Brackett has moved to dismiss this action based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support [the legal conclusion].” Young v. City of Mount Rainier, 238 F.3d 567, 577 (4th Cir. 2001). Courts are required to construe a complaint liberally and presume all factual allegations within the complaint are true, and all reasonable inferences made in favor of the non-moving party. Hishon v. King, 467 U.S. 69, 73 (1984). A motion to dismiss should not be granted unless it appears with certainty that the plaintiff would be entitled to no relief under any circumstances which could be proved to support his or her position. Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989).
The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court need not accept as true “unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider “documents incorporated into the complaint by reference and matters of which a court may take judicial notice.” Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
III. Analysis
Plaintiff brings several causes of actions against Defendant Brackett. As to the first cause of action, Plaintiff argues that, pursuant to § 1983, Defendant Brackett violated Plaintiff's due process rights by failing to “enforce policies that require investigation prior to continued prosecution of falsified arrest warrants and in any and all other ways which may be learned during the exchange of discovery.” ECF No. 1-1 at 20. Plaintiff names Defendant Brackett in the heading of the third cause of action, alleging he violated § 1983 by committing a false arrest but does not provide any facts or allege any conduct on the part of Defendant Brackett to support this claim. Similarly, Plaintiff names Defendant Brackett in the heading of the fourth cause of action, alleging he violated Plaintiff Wilson's due process rights but does not provide any facts or allege any conduct on the part of Defendant Brackett to support this claim. As far as state law claims, Plaintiff brings a negligence claim (the sixth cause of action), a gross negligence claim (the seventh cause of action), and a negligence per se claim (the eighth cause of action) against all Defendants and generally alleges a duty of care that was owed to Plaintiff and breached by Defendants. ECF No. 1-1 at 27-29. Plaintiff alleges a negligent supervision claim against Defendant Brackett, alleging as Sixteenth Circuit Solicitor, he was responsible for supervising assistant solicitors who engaged in some unspecified violations of Plaintiff's rights. ECF No. 1-1 at 31. Plaintiff further alleges that Defendant Brackett employed “those” who participated in violating Plaintiff's rights. ECF No. 11 at 31. Plaintiff alleges a negligent hiring claim against Defendant Brackett, alleging that his selection of assistant solicitors created an “undue risk of harm” to the public. ECF No. 1-1 at 33. Plaintiff alleges a negligent retention claim against Defendant Brackett, alleging he knew or should have known “there was a prior conduct by assistant solicitor[s],” and such conduct provides a nexus to Plaintiff's harm. ECF No. 1-1 at 34. Plaintiff alleges a malicious prosecution claim against Defendant Brackett, alleging he “intentionally and maliciously” instituted the charge for first degree domestic violence, and that Defendant Brackett lacked justification and probable cause to do so. ECF No. 1-1 at 40. Plaintiff also alleges Defendant Brackett knew or should have known of false information provided in the arrest warrant, and he held Plaintiff's charge open for almost a year knowing of this false information. ECF No. 1-1 at 41. Plaintiff alleges Defendant Brackett is vicariously liable for the acts of assistant solicitors. ECF No. 1-1 at 42-43. Plaintiff alleges a tortious interference claim (the nineteenth cause of action), an intentional infliction of emotional distress claim (the twentieth cause of action), and a negligent infliction of emotional distress claim (the twenty-first cause of action) against all Defendants. ECF No. 1-1 at 43-45. Plaintiff alleges that pursuant to § 1983, Defendant Brackett violated the Fourth Amendment in that he oversaw the daily operations of the assistant solicitors, and he knew or should have known that the assistant solicitors and Defendants were engaging in “unconstitutional policies and practices and knew or should have known that the unconstitutional conduct would likely result in injury.” ECF No. 1-1 at 51. Plaintiff further alleges Defendant Brackett was deliberately indifferent to the risk that these policies and practices would cause. ECF No. 1-1 at 51. Finally, Plaintiff alleges a state law civil conspiracy claim against Defendant Brackett. ECF No. 1-1 at 52.
1. Prosecutorial Immunity
Defendant Brackett first argues he is entitled to prosecutorial immunity. The Supreme Court of the United States has held that prosecutors whose activities are “intimately associated with the judicial phase of the criminal process” are immune from a civil suit for damages under 42 U.S.C. § 1983. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). As set forth by the Fourth Circuit, “absolute immunity protects ‘the vigorous and fearless performance of the prosecutor's duty' that is so essential to a fair, impartial criminal justice system.” Nero v. Mosby, 890 F.3d 106, 117 (4th Cir. 2018) (citing Imbler, 424 U.S. at 427-28)). In Nero, the Fourth Circuit further explained that absolute immunity extends only to actions “intimately associated with the judicial phase of the criminal process.” Id. at 117-118 (citing Imbler, 424 U.S. at 430-31)). In determining whether a prosecutor's activities are “intimately associated with the judicial phase,” the Fourth Circuit employs a functional approach. Id. at 118. In employing this functional approach, courts have distinguished between advocative functions and investigative or administrative functions, only the former of which enjoys absolute immunity. Id. Advocative functions include participating in a probable cause hearing or presenting evidence at trial. Id. Further, courts have determined that a prosecutor acts as an advocate when evaluating evidence assembled by police. Id. at 119 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). South Carolina courts have likewise held that a state prosecutor is immune from personal liability under § 1983 or the South Carolina Tort Claims Act (the “SCTCA”) for “actions relating to the prosecution of an individual as a criminal defendant-regardless of the prosecutor's motivation-provided the actions complained of were committed while the prosecutor was acting as an ‘advocate' as defined by Imbler v. Pachtman and its progeny.” Williams v. Condon, 553 S.E.2d 496, 509, 347 S.C. 227 (S.C. Court App. 2001).
Defendant Brackett argues that none of the allegations lodged by Plaintiff includes an assertion that Defendant Brackett acted outside the scope of his authority as solicitor. Thus, Defendant Brackett argues that he is entitled to prosecutorial immunity to the extent Plaintiff alleges facts sufficient to constitute a claim against him that would not be barred by the South Carolina common law doctrine of prosecutorial immunity or the SCTCA. In Response, Plaintiff argues that Defendant Brackett is not entitled to prosecutorial immunity because he was acting in an “administrative capacity.” ECF No. 80, Pl's. Br. at 8. Specifically, Plaintiff states that, “Defendant Brackett acts in an administrative capacity, as he oversees the actions and conduct of his agents and employees.” Pl.'s Br. at 9. Further, Plaintiff argues that as solicitor, it is the job of Defendant Brackett to present warrants to the grand jury, which Plaintiff argues is an administrative function. Id. Plaintiff accuses Defendant Brackett of engaging in the obstruction of justice, citing to both the federal criminal statute and state criminal statute defining perjury. Id. Finally, Plaintiff argues that Defendant engaged in prosecutorial misconduct by hiding the wrong doings of investigators and other officers, and by “holding this matter open” and “prosecuting the matter.” Id. at 9-10. Plaintiff concedes that the incidents occurred while in the scope of Defendant Brackett's employment but implies that “an argument may be presented” that would show, upon discovery, that Defendant Brackett may have been engaged in fraud, which falls outside the protections of the SCTCA. Id. at 10-11. Defendant Brackett replies that the protection afforded to prosecutors applies when a prosecutor is acting as an “advocate.” ECF No. 81, Def.'s Reply at 3. Defendant further points out that Plaintiff simply alleges Brackett acted with malice, and now asserts for the first time in his Response that Defendant Brackett committed perjury. Def.'s Reply at 3. Finally, Defendant Bracket argues the exception found in § 15-78-70(b) does not apply.
Plaintiff did not allege in the Complaint that Defendant Brackett perjured himself, as he now claims.
The undersigned has carefully reviewed the allegations within Plaintiff's Complaint and considered the arguments made in the Response.Plaintiff argues that Defendant Brackett's actions, which mostly revolve around his presentment of the warrant to the grand jury, are simply “administrative” in nature. However, the inquiry focuses on looking at the nature of the function performed, regardless of any harm it may have caused or even whether it was lawful. Nero, 890 F.3d at 118 (emphasis added). A prosecutor has been described as an advocate when he evaluates evidence, decides to seek an arrest warrant, participates in a probable cause hearing, or presents evidence at trial. Id. By contrast, when a prosecutor gives legal advice to police, investigates a case prior to a probable cause determination, or personally attests to the truth of statements, courts consider a prosecutor's conduct to be more administrative or investigative in nature. Id.
Plaintiff refers to Defendant's behavior multiple times as “prosecutorial” in nature. For example, Plaintiff calls some of the conduct “prosecutorial misconduct,” explains that it is the “duty of the solicitor” to present warrants, and that Defendant Brackett was acting as an “officer of the court.”
Of particular importance here, in Nero, the district court held that a prosecutor “was entitled to absolute immunity for her conduct before the grand jury.” Id. at 116-17. The Fourth Circuit determined that in addition to that conduct, the prosecutor's conduct related to a malicious prosecution claim also enjoyed absolutely immunity. Id. at 118. Similarly, in this case Plaintiff's main contentions regarding Defendant Brackett's conduct relates to his presentation of a warrant to the grand jury. Plaintiff also alleges Defendant Brackett violated § 1983 when he prosecuted a falsified arrest warrant and improperly oversaw other the conduct of other solicitors. However, as noted in Nero, the Supreme Court has previously held that a prosecutor's selection of what facts to include in a probable cause certification, the drafting of that certification, the determination of the sufficiency of the evidence, the decision to file charges, and the presentation of information are all entitled to absolutely immunity. Id. at 119.Accordingly, the undersigned agrees with Defendant Brackett that the conduct alleged on his part is protected by the doctrine of prosecutorial immunity. Similarly, as discussed in Nero, the malicious prosecution claim, wherein Plaintiff alleges that Defendant Bracket “intentionally and maliciously” instituted the charge for first degree domestic violence, lacking probable cause, is also conduct protected by absolute immunity. The undersigned therefore recommends that the first, third, fourth, and twenty-eighth causes of action brought pursuant to § 1983, and the sixteenth cause of action (for malicious prosecution), be dismissed as to Defendant Brackett.
Whether Defendant Brackett perjured himself, as now claimed by Plaintiff, was not alleged in the Complaint, nor did Plaintiff suggest he was subject to criminal charges.
As to the state law tort claims, the undersigned also recommends dismissing these claims against Defendant Brackett. Plaintiff admits Defendant Brackett was acting within the scope of his official duties. Under Section 15-78-70(a) of the SCTCA, Plaintiff acknowledges that the statute provides for the exclusive remedy for torts committed by a governmental entity that an employee acting within the scope of his employment is not liable except as expressly provided for in the statute. However, Plaintiff alleges that discovery could show, or an argument may be presented, that Defendant Brackett acted in a manner that constituted “actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” Pl.'s Br. at 10. Plaintiff argues that this presents a genuine issue of material fact preventing dismissal of his lawsuit.
The undersigned is tasked with determining whether Plaintiff has sufficiently pled a cause of action against Defendant Brackett. Aside from the fact that Plaintiff expressly acknowledges Defendant Brackett was acting within the scope of his employment, Plaintiff does not allege any conduct on the part of Defendant Brackett that would plausibly fall under any exception to immunity. Accordingly, for the reasons stated above, the undersigned recommends dismissing this lawsuit against Defendant Brackett.
Defendant Brackett also argues that Plaintiff is barred from seeking damages against him pursuant to § 1983 because he was acting in his official capacity as a state official. Plaintiff's response to this argument is that because this action was removed from state court, fair play and substantial justice support remanding this case to state court. However, another set of Defendants removed this case to federal court prior to Defendant Brackett appearing this case. Further, Plaintiff argues that a state officer can sued for prospective or injunctive relief; however, there is no such claim made against this Defendant. Nevertheless, as to Plaintiff's request to remand the matter back to start court should the undersigned dismiss this case, the undersigned notes that dismissal would still be appropriate based on prosecutorial immunity as is explained in this R&R.
2. Respondeat Superior is Inapplicable to § 1983 Claims
Defendant Brackett next argues that the doctrine of respondeat superior is not applicable in a case brought pursuant to 42 U.S.C. § 1983. Liability under § 1983 involves a showing that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). The doctrine of respondeat superior is inapplicable in these cases. Id.; see Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (stating that there is no respondeat superior liability under § 1983). Defendant Brackett argues that while Plaintiff seeks to premise liability on the fact that he had certain administrative responsibilities as the solicitor of the Sixteenth Judicial Circuit, such liability cannot exist under § 1983 on this basis. Def.'s Br. at 75. In Response, Plaintiff argues that in South Carolina, an employer can be responsible for the wrongful acts of his employees while that employee is acting within the scope of employment. Pl's. Br. at 12. Plaintiff further argues that not all claims brought against Defendant Brackett fall under the ambit of § 1983.
The undersigned has carefully reviewed Plaintiff's Complaint and considered all causes of actions wherein it is plausible that Plaintiff seeks to impose liability on Defendant Brackett for the action of other individuals allegedly within his employ. The following causes of actions, as alleged by Plaintiff includes such claims: (1) negligent supervision (the ninth cause of action); (2) negligent hiring (the tenth cause of action); (3) negligent retention (the eleventh cause of action); (4) vicarious liability (the eighteenth cause of action); and (5) a § 1983 claim alleging a violation of the Fourth Amendment.
The first time any reference to an assistant solicitor is mentioned in the Complaint is in the ninth cause of action for negligent supervision, where, for the first time, Plaintiff references some unspecified tortious conduct on the part of unnamed assistant solicitors.
It should be noted that “vicarious liability” is not itself a cause of action; rather, it is a theory under which tort may be premised with respect to allocating liability. See generally Pulte Home Corp. v. S & ME, Inc., No. 0:13-1746-CMC, 2013 WL 4875077, at *2 (D.S.C. Sept. 11, 2013) (explaining that vicarious liability is not an independent cause of action but instead a legal doctrine which may be relevant to a negligence claim).
As to the § 1983 claim, it is true that the doctrine of respondeat superior is generally inapplicable to such cases. Supervisory officials may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)).Here, Plaintiff alleges that Defendant Brackett authorized assistant solicitors to manage their cases, gave authority to exercise power over their cases, and deferred to assistant solicitors on matters of policies and practices, including unconstitutional ones. ECF No. 1-1 at 51. Further, Plaintiff alleges that Defendant Brackett and assistant solicitors engaged in unconstitutional policies, patterns, and practices. Id. However, nowhere within the Complaint does Plaintiff allege, indicate, or otherwise allude to any conduct on the part of assistant solicitors, unconstitutional or otherwise. Nor does Plaintiff allege any causal link between Defendant Brackett's failure to properly supervise or manage assistant solicitors, resulting in the particular constitutional injury suffered by Plaintiff in this case. Indeed, Plaintiff provides no information or allegations regarding what policies or practices were unconstitutional in this case. Accordingly, the undersigned recommends dismissing this claim against Defendant Brackett.
To establish supervisory liability under § 1983 one must show: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted).
The other four claims are state law claims. To establish negligence in South Carolina, a plaintiff must establish: (1) a duty the defendant owes the plaintiff; (2) a breach of that duty by the defendant by a negligent act or omission; (3) that such breach was the actual and proximate cause of the plaintiff's injury; and (4) injury or damages. Doe v. Marion, 645 S.E.2d 245, 250, 373 S.C. 390 (S.C. 2007). To establish liability under respondeat superior, a plaintiff must establish that the servant was acting about the master's business and within the scope of his employment. Lane v. Modern Music, Inc., 136 S.E.2d 713, 716, 244 S.C. 299 (S.C. 1964). In reviewing these causes of actions, Plaintiff does not allege any actual conduct on the part of any assistant solicitors sufficient to ascertain what the alleged negligent behavior would be that Defendant Brackett should be aware. For example, as to the negligent supervision claim, Plaintiff baldly asserts that Defendant Brackett was responsible for the supervision of assistant solicitors “during the time of their violations of Plaintiff's rights and Defendants tortious conduct.” ECF No. 1-1 at 31. Plaintiff further states “the violations” occurred while Defendant Brackett “employed those who participated in violating Plaintiff's rights.” Id. However, nowhere within the Complaint does Plaintiff ever allege any conduct or involvement on the part of assistant solicitors. As to the negligent hiring claim, Plaintiff alleges the same or similar allegations; however, again, it is impossible to ascertain from the Complaint what the alleged violations or breaches of any duty were conducted on the part of the assistant solicitors or Defendant Brackett because no conduct has been alleged beyond “tortious conduct.” Similarly, as to the negligent retention claim, Plaintiff alleges Defendant Brackett knew or should have known of “prior conduct” by “assistant solicitor[s]” while acting under color of state law, and that Plaintiff believes this “conduct” provides a nexus or similarity to Plaintiff's harm. ECF No. 1-1 at 34. Finally, under the cause of action labeled “vicarious liability,” Plaintiff asserts there is an agency relationship with assistant solicitors and Defendant Brackett. ECF No. 1-1 at 43. However, again, Plaintiff alleges no actual conduct or any allegation to ascertain how that imputes liability to Defendant Brackett. These bare legal conclusions are insufficient to support a finding that Plaintiff has alleged any sort of supervisory liability on the part of Defendant Brackett under any cause of action. Accordingly, the undersigned recommends dismissing these causes of action against Defendant Brackett.
3. Insufficiency of Pleadings
Finally, Defendant Brackett argues that Plaintiff has failed to establish any constitutional claim against him. Plaintiff disagrees and argues he has alleged multiple claims against Defendant Brackett. Plaintiff's argument boils down to his statement that he has “provided ample facts to suppose the allegations of deprivations.” Pl.'s. Br. at 13. As to the due process claims, Plaintiff alleges that Defendant Brackett's “failure to report the lies to the magistrate judge” support such a claim. Pl.'s. Br. at 14. However, a review of the Complaint reveals that while Plaintiff alleges Defendant Jolda made false statements directly to a magistrate, and the magistrate judge relied upon said statements (ECF No. 1-1 at 14, 41), Plaintiff does not make this allegation or any allegation regarding Defendant Brackett anywhere within the Complaint. Instead, Plaintiff alleges simply that Defendant Brackett failed to enforce “policies that require investigations prior to continued prosecutions of falsified arrest warrants and in any and all other ways which may be learned of during the exchange of discovery.” ECF No. 1-1 at 20. Defendant Brackett does not allege he was aware of any such falsified arrest warrant or what the policies were that he failed to enforce. Similarly, Plaintiff argues “Defendant Brackett undoubtedly violated Plaintiff's constitutional rights by engaging in illegal activity and misconduct.” Pl's. Br. at 15. Plaintiff continues: “Defendant Brackett knew the information contained in the warrant and presented to the magistrate judge contained blatant lies.” Id. These are new allegations brought for the first time eight months after the filing of this suit and were not contained within the Complaint. Moreover, as previously addressed in this R&R, presenting a warrant to a judge is activity protected by prosecutorial immunity. Plaintiff does not include any other argument concerning the remainder of the sufficiency of his claims against Defendant Brackett.
These include a tortious interference claim, a claim for intentional infliction of emotional distress, a claim for negligent infliction of emotional distress, and a state law civil conspiracy claim. There are no allegations within any of these causes of actions that specifically mention conduct on the part of Defendant Brackett; rather, Plaintiff refers to Defendants as a collective whole. Therefore, the undersigned is unable to ascertain, for example, what the allegations are as to Defendant Brackett to support a tortious interference claim, an intentional infliction of emotional distress claim, a negligent infliction of emotional distress claim, or a civil conspiracy claim.
IV. Recommendation
The undersigned has carefully considered the arguments made by all parties in this case. After considering these arguments, the undersigned recommends granting Defendant Brackett's Motion to Dismiss, ECF No. 75. Plaintiff's Complaint would therefore be dismissed in its entirety against Defendant Brackett, should the district judge accept this recommendation.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).