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Simon v. Paige

United States District Court, D. South Carolina

June 10, 2014

Jovan Cornelius Simon, # XXXXX-XXX, Plaintiff,
v.
L/CPL Kevin Paige, SCHP; Trooper Bucky Geddings, SCHP; L/Cpl Mark Jennings, SCHP; and Agent H. Eric Cohoon, ATF; Defendants.

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971). Construed liberally, Plaintiff alleges that the named Defendants violated his constitutional rights during the course of his arrest on May 9, 2013. In a Report and Recommendation filed April 14, 2014, the undersigned noted in a footnote that, while the allegations of Plaintiff's Complaint could also be liberally construed to have asserted state law tort claims, Plaintiff had failed to name a proper party for asserting such a claim under the South Carolina Tort Claims Act. See S.C.Code Ann. § 15-78-10, et. seq. See Court Docket No. 33, p. 1, n. 1 [Noting that proper party defendant for assertion for a state law tort claim in this case would be the South Carolina Department of Public Safety].

The Defendant Kevin Paige has now filed a motion for judgment on the pleadings, arguing that, to the extent Plaintiff has intended to assert a state law tort claim against him, it is subject to dismissal on the grounds that he is not individually subject to suit for any state law tort claims under the South Carolina Tort Claims Act. In a response filed June 2, 2014, Plaintiff does not dispute that the Defendant Paige is not subject to suit in his individual capacity for a state law tort under the South Carolina Tort Claims Act. See Court Docket No. 51.

Therefore, based on the foregoing, it is recommended that the Defendant Paige's motion for judgment on the pleadings be granted, and that to the extent Plaintiff has asserted a state law tort claim against Paige in his individual capacity, that such claim be dismissed.


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