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Warthen v. Midgett

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

March 31, 2017

ALONZO D. WARTHEN, Plaintiff,
v.
ADAM L. MIDGETT, individually and in his official capacity as Deputy for Charleston County Sheriff's Office; JOHN DOE NEAL, individually and in his official capacity as Deputy for Charleston County Sheriff's Office; CHARLESTON COUNTY SHERIFF'S OFFICE; J. AL CANNON, JR. in his official capacity as Sheriff of Charleston County; BERKELEY COUNTY SHERIFF'S OFFICE; S. DUANE LEWIS, in his official capacity as Sheriff of Berkeley County Sheriff; BERKELEY COUNTY; and CHARLESTON COUNTY, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Magistrate Judge Mary Gordon Baker's Report and Recommendation (“R&R”) that the court grant in part and deny in part defendants Adam L. Midgett, John Doe Neal, Charleston County Sheriff's Office, J. Al Cannon, Jr., Berkeley County Sheriff's Office, S. Duane Lewis, Berkeley County, and Charleston County's (collectively, “defendants”) motion to dismiss. ECF No. 5. Defendants filed a written objection to the R&R. For the reasons set forth below, the court adopts the R&R and grants in part and denies in part defendants' motion to dismiss.

         I. BACKGROUND[1]

         Plaintiff Alonzo D. Warthen (“plaintiff”) alleges that on January 25, 2013, at approximately 8:15 p.m., he was sitting in his car in the parking lot of the Palms Apartments in Hanahan, South Carolina. Plaintiff was eating chips, drinking juice, and browsing on his cell phone when defendant Adam L. Midgett (“Midgett”), a deputy with the Charleston County Sheriff's Office (“CCSO”), parked his car ten feet away. Midgett approached plaintiff's car and asked him if he lived in the apartments. Plaintiff responded that he did not.

         Plaintiff alleges that events then took a violent turn. According to plaintiff, Midgett then opened plaintiff's door and forced him out of the car. Midgett then took plaintiff to the back of his patrol car and started strip searching him. Plaintiff specifically alleges that Midgett shoved his finger into plaintiff's anus. Midgett then shoved a black metal object against plaintiff's throat, handcuffed him, and threw him to the ground. Around this time, another deputy, defendant John Doe Neal (“Neal”) arrived on scene. Midgett told Neal to hold plaintiff down, at which point Neal pressed his knee against plaintiff while he pulled plaintiff's arms into the air. Plaintiff alleges that while Neal held him down, Midgett “planted a bag of drugs into [his] anus” and proceeded “to dig into Mr. Warthen's anus for approximately fifteen minutes.” At one point plaintiff yelled out that he could not breathe but was not allowed to rise.

         Midgett and Neal then transferred plaintiff to the Hanahan Police Department where he was strip searched a second time. Plaintiff alleges that during the search, the drugs placed inside him by Midgett were found, and plaintiff was charged with possession with intent to distribute cocaine. Plaintiff further alleges that these criminal charges were later dropped due to constitutional issues with the stop and search, and because Midgett was “terminated for credibility issues.” He contends that the police reports detailing the incident were falsified, and notes that one report states that Midgett approached plaintiff because he smelled burning marijuana, but none was found at the scene.

         Plaintiff filed the instant action on January 11, 2016, bringing claims under 42 U.S.C. § 1983, as well as state law claims for gross negligence, assault, battery, and negligent retention. ECF No. 1-2. The case was removed to this court on March 23, 2016. ECF No. 1. On March 28, 2016, defendants filed a motion to dismiss a number of plaintiff's claims. ECF No. 5. Plaintiff filed a response on April 14, 2016, ECF No. 8, and defendants filed a reply on April 25, 2016. ECF No. 10. The magistrate judge issued the R&R on January 26, 2017, recommending the court grant defendants' motion to dismiss plaintiff's second, third, and sixth causes of action as to all defendants, deny defendants' motion to dismiss plaintiff's fourth and fifth causes of action as to defendants Midgett and Neal, and grant defendants' motion to dismiss plaintiff's fourth and fifth causes of action as to all other defendants. R&R at 13. Defendants filed an objection to the R&R on February 9, 2017. ECF No. 16. Plaintiff did not file any objections or a reply to defendants' objections. The matter is now ripe for the court's review.

         II. STANDARD OF REVIEW

         A. De Novo Review

         This court is charged with conducting a de novo review of any portion of the magistrate judge's R&R to which specific, written objections are made. 28 U.S.C. 636(b)(1). The court may adopt the portions of the R&R to which the petitioner did not object, as a party's failure to object is accepted as agreement with the conclusions of the magistrate judge. Thomas v. Arn, 474 U.S. 140, 14-50 (1985). The recommendation of the magistrate judge carries no presumptive weight, and it is this court's responsibility to make a final determination. Mathews v. Weber, 423 U.S. 261, 270-71 (1976).

         B. Motion to Dismiss

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, the court must accept the plaintiff's factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, the court's task is limited to determining whether the complaint states a “plausible claim for relief.” Id. at 679. Although Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief, ” “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “Facts pled that are ‘merely consistent with' liability are not sufficient.” A Soc'y Without a Name v. Va., 655 F.3d 342, 346 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

         III. DISCUSSION

         Defendants' objections address a very specific portion of the R&R, arguing that the rationale underlying the magistrate judge's decision to deny their motion to dismiss the assault and battery claims against Midgett and Neal has been rendered moot. Defs.' Objections 2. In their briefing before the magistrate judge, defendants argued that the assault and battery claims against Midgett and Neal must be dismissed because those claims are governed by the South Carolina Tort Claims Act, SC Code §§ 15-78-10 et. seq. (“SCTCA”) and therefore subject to a two-year statute of limitations.[2] The magistrate judge observed that the SCTCA provides “the exclusive civil remedy for any tort committed by a governmental ...


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