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Killian v. City of Abbeville

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

January 22, 2015

Curtis G. Killian, Plaintiff,
City of Abbeville, Patrick Neil Henderson, Nolan Wiggins, and David E. McCuen, IV, Defendants


Kevin F. McDonald, United States Magistrate Judge.

This matter is before the court on the defendants' motions to dismiss the plaintiff's civil conspiracy claim (docs. 7, 26). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.

The plaintiff filed this action on March 21, 2014, alleging claims of retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, and defamation against the defendant City of Abbeville and a claim of civil conspiracy against the individual defendants. On April 29, 2014, the defendants City of Abbeville, Wiggins, and McCuen filed a motion to dismiss the civil conspiracy claim (doc. 7). On May 16, 2014, the plaintiff filed his response to the motion to dismiss (doc. 12). On May 20, 2014, the defendants filed a reply to the plaintiff's response (doc. 14). On August 6, 2014, defendant Henderson filed a motion to dismiss the civil conspiracy claim (doc. 26). The plaintiff filed a response on September 26, 2014 (doc. 32), and defendant Henderson filed a reply on October 6, 2014 (doc. 34).


The plaintiff, a white male, worked for the City of Abbeville Police Department since March 1999 and was a lieutenant when he was suspended from the department in 2012. The plaintiff alleges in his complaint that around the first week of August 2011, he made a verbal complaint to Captain James " Skipper" O'Bannon that defendant Henderson had made repeated racist remarks in front of the plaintiff. At that time, Henderson was the Police Chief for the City of Abbeville. The plaintiff also complained of several other instances of racially and sexually inappropriate conduct by Henderson. Captain O'Bannon told the plaintiff that there was nothing that could be done about Henderson's behavior. The plaintiff, unsatisfied with O'Bannon's explanation, approached Abbeville City Councilman Joe Seawright with the same complaints he made to O'Bannon. Seawright advised that he would look into the matter.

On August 7, 2011, a few days after the plaintiff made the complaints of racist and sexist behavior to his supervisors, his wife died. He took one week of bereavement leave at this time. During this week, the plaintiff spoke with defendant McCuen, who at that time was the Assistant City Manager for the City of Abbeville, [2] and requested to take one more week to resolve matters. Instead, McCuen placed plaintiff on administrative leave until the plaintiff completed grief therapy and counseling. Subsequently, the plaintiff went to defendant Wiggins, who at that time was the City Manager for the City of Abbeville, and complained that other officers were not forced into mandatory therapy after a death in the family. He also claimed he was being forced to use his own leave time for the therapy. Wiggins initially resisted making any corrections until he finally agreed for the City to pay the leave time as there was no policy on the matter. The plaintiff was still required to go through therapy before returning to work.

While the plaintiff was on leave, he alleges that defendants Henderson, Wiggins, and McCuen " met together, schemed, planned and conspired between themselves and others to force the plaintiff from the police department because of plaintiff's complaints." The plaintiff alleges that while he was out of work for over six weeks attending mandatory therapy he was advised by numerous co-workers and other citizens of Abbeville that it was known that there was a plan by Henderson and others to get rid of him or force him to resign. The plaintiff claims there were many false and malicious rumors about him being circulated around by defendants.

After the plaintiff completed the mandatory therapy, he states that he tried to contact O'Bannon and Henderson numerous times about returning to work. When the plaintiff reached O'Bannon, O'Bannon told him that McCuen said that he was not allowed back on Abbeville City property until McCuen said so.

Subsequently, O'Bannon contacted the plaintiff and told him, under Henderson's order, that the plaintiff was being demoted from a Lieutenant Detective over investigations and that he was being assigned to a patrol shift under a less experienced officer. The plaintiff claims that the harassment and retaliatory treatment intensified after he returned to work. The plaintiff was transferred to another shift in late December 2011 or early January 2012 and claims he witnessed further unprofessional and discriminatory behavior by defendant Henderson. The plaintiff went to Councilman Seawright again and complained about racism, sexism, and retaliatory treatment.

During the last night he worked prior to his suspension, the plaintiff alleges that he witnessed inappropriate activity by two officers. The next Monday, while in route to report the conduct to O'Bannon, the plaintiff was called by O'Bannon, who told the plaintiff that he was being placed on administrative leave and would have to call " City Hall" with questions.

The plaintiff claims he was put on administrative leave for false and pretextual reasons. Defendants Henderson and McCuen told the plaintiff that SLED was investigating the plaintiff for alleged misconduct and that the plaintiff was to cooperate. After being on administrative leave for about a month, the plaintiff was terminated from employment by defendant McCuen on or about March 21, 2012.

As noted above, the plaintiff alleges claims for retaliation in violation of Title VII and a state law claim of defamation against the defendant City of Abbeville. The plaintiff alleges only a state law claim for civil conspiracy against the individual defendants, and the defendants have moved for dismissal of that claim. As pertinent to the civil conspiracy claim, the plaintiff alleges that the defendants acted outside " the scope of their employment and in abuse of their positions to harass [him] on a day-to-day basis, isolating and ostracizing him, resulting in [his] termination and blacklisting" (comp. ¶ 51). He further contends that his allegations " illustrate the hatred, ill will and personal agenda of the individual defendants acting outside the course and scope of their duties to inflict the special damages, such as blacklisting and interfering with prospective employers, which have occurred and to cause the Plaintiff harm emotionally and financially" ( id. ¶ 53). He further claims these defendants encouraged lower level police officers to unnecessarily monitor him, directed officers to mistreat him, and falsely accused him of wrongdoing ( id. ¶ 55). The plaintiff claims the defendants' actions caused him " to suffer increased stress and anxiety, and forced him to incur the costs, fees and reasonable attorney's fees of prosecuting this action" ( id. ¶ 57). He seeks actual and punitive damages, costs, and fees from the individual defendants.


Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal if the opposing party fails to state a claim for which relief can be granted. Rule 8(a) sets forth a liberal pleading standard, which requires only a " 'short and plain statement of the claim showing 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.'" Bell A. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of a plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4thCir. 1999); Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4thCir. 1992) (" A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). To survive a Rule 12(b)(6) motion, " [f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The " complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct ...

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