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Killian v. City of Abbeville

United States District Court, District of South Carolina, Anderson/Greenwood Division

March 6, 2015

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


Timothy M. Cain, United States District Judge.

The plaintiff, Curtis G. Killian (“Killian”), filed this action asserting claims of retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, defamation against the City of Abbeville, and a claim of civil conspiracy against the individual defendants. (ECF No. 1). On April 29, 2014, the City of Abbeville, David E. McCuen, IV (“McCuen”), and David Wiggins (“Wiggins”) filed a motion to dismiss the civil conspiracy claim. (ECF No. 7). On August 6, 2014, Patrick Neil Henderson (“Henderson”) filed a similar motion. (ECF No. 26). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., these motions were referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge’s Report and Recommendation (“Report”), recommending the court to grant the motions to dismiss filed by the defendants. (ECF No. 38). Killian has filed objections. (ECF No. 47).

The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the absence of objections, this court is not required to provide an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in 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, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee’s note).

I. Background

According to the complaint, Killian, a white male, was employed as a police officer in the City of Abbeville Police Department for approximately thirteen years. In August 2011, he complained to his police captain that Henderson, the police chief, had made racist remarks about minority groups and sexist remarks about women in his presence, and he also indicated to his police captain that those remarks had affected the workplace. Killian was unsatisfied with his police captain’s response and immediately approached an Abbeville City Councilman to discuss Police Chief Henderson.

Within days after making his complaints, Killian’s wife unexpectedly passed away. He took one week of bereavement leave. During that week, he contacted McCuen, the assistant manager for the City of Abbeville, seeking an additional week of bereavement leave. McCuen placed Killian on administrative leave until he completed grief therapy and counseling. Killian then complained to Wiggins, the city manager, arguing that other officers were not required to go through unpaid mandatory therapy. Wiggins determined that Killian needed to go through therapy but that the City of Abbeville should pay for his leave time.

Killian missed six weeks of work to complete therapy. During his time away from work, he alleged that he was advised that Henderson and others were planning to terminate his employment or force him to resign spreading false and malicious rumors about him, and having an officer print his Facebook information. After he completed therapy, Killian tried to return to work but was instructed that he could not return without approval by McCuen. Shortly thereafter, Killian’s police captain informed him that he was being demoted from lieutenant detective over an investigation, and that he was being assigned to a patrol shift under the supervision of an officer with less experience. Killian alleges he was routinely harassed and subject to retaliatory treatment, and that he continued to complain to his superiors and to the city councilman. Eventually, Killian was placed on administrative leave because of a SLED investigation into his alleged wrongdoings. About a month later, his employment was terminated. This lawsuit ensued.

II. Legal Standard

Under the federal rules, each pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Accordingly, pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim should be dismissed when the complaint fails to allege facts upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). 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).

In sum, “[t]o survive a motion to dismiss, a 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 Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). And, for a claim to have facial plausibility, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

III. Discussion

Killian has filed three general objections. (ECF No. 47). First, he asserts that his at-will employment status does not preclude him from maintaining a civil conspiracy action against the individual defendants. (ECF No. 47 at 2). With regard to this objection, Killian claims that his civil conspiracy claim does not arise out of his termination, and that the defendants were acting outside the scope of their employment when they ostracized, isolated, and black-listed him. (ECF No. 47 at 3-5). Second, he claims that the magistrate judge erred in finding that he failed to allege separate and independent acts in furtherance of the conspiracy. (ECF No. 47 at 6). Third, Killian claims that he did allege special damages. (ECF No. 47 at 6).

“A civil conspiracy is a combination of two or more persons joining for the purpose of injuring and causing special damage to the plaintiff.” McMillan v. Oconee Mem’l Hosp., Inc., 626 S.E.2d 884, 886 (S.C. 2006). To establish a civil conspiracy, a party must show: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which causes him special damage. Vaught v. Waites, 387 S.E.2d 91, 95 (S.C. Ct. App. 1989). “The gravamen of the tort of civil conspiracy is the damage resulting to the plaintiff from an overt act done pursuant to a common design.” Cricket Cove Ventures, LLC v. Gilliand, 701 S.E.2d 39, 46 (S.C. Ct. App. 2010).

“A claim for civil conspiracy must allege additional acts in furtherance of a conspiracy rather than reallege other claims within the complaint.” Hackworth v. Greywood at Hammett, LLC, 682 S.E.2d 871, 874 (S.C. Ct. App. 2009) (citation omitted). In addition, “because the quiddity of a civil conspiracy claim is the special damage resulting to the plaintiff, the damages alleged ...

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