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Washington v. Follin

United States District Court, D. South Carolina, Florence Division

April 22, 2016

Wilhelmina Washington, Plaintiff,
John E. Follin, III, in his individual capacity as Special Agent with the South Carolina Law Enforcement Division; and the South Carolina Law Enforcement Division, Defendants.


R. Bryan Harwell, United States District Judge

This matter is before the Court for consideration of Plaintiff Wilhelmina Washington’s objections to a discovery order issued by United States Magistrate Judge Kaymani D. West, who granted in part and denied in part a motion to compel filed by Plaintiff. See ECF Nos. 93, 110, & 115. The Attorney General of the State of South Carolina[1] filed a reply to Plaintiff’s objections. See ECF No. 120. The Court affirms the Magistrate Judge’s order, except as modified herein.

Background [2]

This civil lawsuit arises from the criminal prosecution of Plaintiff by the State of South Carolina. Plaintiff served as a clerk for the Town of Timmonsville municipal court, and she was arrested in November 2011 on charges of forgery and misconduct in office.[3] The South Carolina Law Enforcement Division (“SLED”) conducted the criminal investigation of the matter; the South Carolina Attorney General’s Office (“SCAG”) prosecuted the criminal case against Plaintiff. Plaintiff proceeded to a jury trial in November 2012 on indictments charging her with two counts of forgery and two counts of misconduct in office (“the original indictments”). The trial resulted in a hung jury, and the trial judge declared a mistrial. After the first trial, the State indicted Plaintiff on two more charges (“the additional indictments”), [4] but she succeeded in having the additional indictments quashed by the trial judge. In July 2013, Plaintiff proceeded to a second jury trial on the original indictments; the second trial resulted in another hung jury, and the trial judge again declared a mistrial. In December 2013, SCAG notified Plaintiff it would not try her a third time and dismissed the charges. Plaintiff then brought this lawsuit.

I. Initial Complaint

Plaintiff filed a complaint in the Court of Common Pleas for Florence County, South Carolina, on January 17, 2014. See Complaint, ECF No. 1-1. Plaintiff sued the two above-named defendants: (1) SLED and (2) John E. Follin, III, in his individual capacity as Special Agent with SLED (collectively, “the SLED Defendants”). Plaintiff also named the following four parties as defendants: (1) SCAG, (2) Alan Wilson, in his individual capacity as the Attorney General of the State of South Carolina, (3) Wayne Allen Myrick Jr., in his individual capacity as Senior Assistant Deputy Attorney General, and (4) Megan Wines Burchstead, in her individual capacity as Assistant Attorney General (collectively, “the SCAG Defendants”). Plaintiff brought federal claims under 42 U.S.C. § 1983 and state law claims under the South Carolina Tort Claims Act.[5] In her original complaint (and later in an amended complaint), Plaintiff asserted the following allegation relating to the original indictments and prosecution:

Washington was only indicted on the original charges ‘after [she] failed to provide law enforcement with any information on other matters in Timmonsville.’ That there was ‘an ongoing investigation into many matters in Timmonsville’ and that Burchstead, Follin, SCAG and SLED were attempting to use the criminal charges against Washington to further that investigation by coercing Washington’s assistance through criminal prosecution[.]

Compl. at ¶ 24(f), ECF No. 1-1 at 10; Am. Compl. at ¶ 20(f), ECF No. 50 at 6 (first alteration in original). Plaintiff made the following allegation relating to the second and subsequent prosecution:

The prosecution against Washington was retaliatory and vindictive, in response to Washington not being able to help the State’s ongoing investigation into the ‘many matters in Timmonsville, ’ as well as in retaliation for Washington demanding a jury and speedy trial and effectively presenting a defense against the charges at that first trial. Washington argued that actions and failures to act by both Follin and Burchstead violated her due process rights, specifically her constitutional right to a fair trial and her right to a meaningful opportunity to present a full and complete defense under the 5th, 6thand 14th Amendments to the U.S. Constitution[.]

Compl. at ¶ 24(k), ECF No. 1-1 at 10; Am. Compl. at ¶ 20(k), ECF No. 50 at 6. Plaintiff asserted, among other causes of action, a civil conspiracy claim against SLED. Compl. at ¶¶ 42-45, ECF No. 1-1 at 16.

The SCAG Defendants and the SLED Defendants jointly removed the action to this Court on February 18, 2014. ECF No. 1. Pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) for the District of South Carolina, the Clerk of Court automatically referred this case to United States Magistrate Judge Kaymani D. West for all pretrial proceedings. See Local Civil Rule 73.02(B)(2)(f) (D.S.C.) (requiring the Clerk to automatically assign magistrate judges to “[a]ll pretrial proceedings in civil rights cases arising out of the criminal process”).

On February 21, 2014, the SCAG Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 8. Plaintiff filed a response in opposition and a motion to amend her complaint on March 10, 2014. ECF Nos. 9 & 10. Both motions were automatically referred to the Magistrate Judge, who issued a Report and Recommendation recommending that the Court grant the motion to dismiss and deny the motion to amend. ECF No. 35. Plaintiff filed timely objections to the Report and Recommendation, and after conducting a de novo review, [6] the Court issued an order adopting in part and rejecting in part the Report and Recommendation. ECF Nos. 37 & 44. In its order, the Court (1) dismissed the SCAG Defendants with prejudice on the basis of prosecutorial immunity and (2) granted Plaintiff leave to amend her claims against the SLED Defendants. ECF No. 44 at 9-10. The Court denied Plaintiff’s motion for reconsideration. ECF No. 59.

II. Amended Complaint and Civil Conspiracy Claim

On October 8, 2014, Plaintiff filed an amended complaint against the SLED Defendants. See Am. Compl., ECF No. 50. Plaintiff asserted various state and federal claims, [7] again including a civil conspiracy claim against SLED, alleging it conspired with SCAG, Burchstead, Myrick, Wilson, and Follin in an effort to injure and cause special damage to Plaintiff. Id. at ¶¶ 32-35. The SLED Defendants filed an answer to the amended complaint on October 22, 2014. ECF No. 57.

III. Plaintiff’s Subpoena Duces Tecum to SCAG

According to the December 11, 2014 electronic docket entry for this case, the Magistrate Judge’s chambers received an email from Plaintiff’s counsel detailing a discovery issue. ECF No. 67. According to the email, Plaintiff’s attorney had served a subpoena duces tecum on SCAG, and SCAG had filed written objections to the subpoena refusing to produce the requested documents. Id. The Magistrate Judge entered a docket text order finding SCAG had properly objected to the subpoena pursuant to Federal Rule of Civil Procedure 45(d)(2)(B) and informing Plaintiff that she could now move to compel production pursuant to Rule 45(d)(2)(B)(i). Id.

IV. Plaintiff’s First Motion to Compel

On December 19, 2014, Plaintiff filed a motion to compel, attaching to it the subpoena duces tecum she had served on SCAG and SCAG’s written objections. ECF Nos. 68, 68-1, & 68-2. The subpoena showed Plaintiff sought production of six categories of items from SCAG: (1) “[a] full and complete copy of the employee file of Megan Burchstead”; (2) “[a] full and complete copy of the employee file of Wayne Allen Myrick”; (3) copies of any communications referencing Plaintiff, the criminal charges against her, and the related investigation and prosecution; (4) copies of any requests, suggestions, instructions, or orders given by SCAG employees regarding the investigation and prosecution of Plaintiff; (5) copies of any policies or procedures that SCAG follows when conducting a criminal prosecution or coordinating with a law enforcement agency; and (6) any other files, documents, and digital records pertaining to Plaintiff, her criminal charges, the investigation, and the prosecution. ECF No. 68-1 at 6-7. In sum, Plaintiff demanded production of two types of materials: employee personnel files and SCAG’s prosecutorial file from Plaintiff’s criminal case.

In its written objections, SCAG refused to comply with the subpoena duces tecum, asserting the subpoena was overbroad and the requested items were privileged. ECF 68-2 at 2-3. The motion to compel was ...

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