United States District Court, D. South Carolina, Charleston Division
ALONZO D. WARTHEN, Plaintiff,
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.
C. NORTON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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
STANDARD OF REVIEW
De Novo Review
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).
Motion to Dismiss
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).
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. The magistrate judge
observed that the SCTCA provides “the exclusive civil
remedy for any tort committed by a governmental ...