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Morning v. Dillon County

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

September 27, 2017

Robert Earl Morning, Plaintiff,
v.
Dillon County; Dillon County Sheriff's Office; Sheriff Major Hulon, in his official capacity; Ken Carlisle Rogers, in his individual and official capacity; James Jackson, in his individual and official capacity; Andrew Miller, in his individual and official capacity; and Richard Day, in his individual and official capacity, Defendants.

          ORDER

          R. Bryan Harwell United States District Judge

         Plaintiff Robert Earl Morning brought this action, which was removed from state court, against the seven above-captioned defendants alleging claims under 42 U.S.C. § 1983 and state law. All defendants except Defendant Ken Carlisle Rogers answered and filed a motion for summary judgment. The matter is before the Court for consideration of the parties' objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Thomas E. Rogers, III.[1] The Magistrate Judge recommends that the Court grant in part and deny in part the motion for summary judgment, and that the Court dismiss Defendant Rogers without prejudice.

         Legal Standards

         I. Review of the R & R

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         II. Summary Judgment

         Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party, Reyazuddin, 789 F.3d at 413, but the Court “cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).

         Moreover, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “A dispute of material fact is ‘genuine' if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party.” Seastrunk v. United States, 25 F.Supp.3d 812, 814 (D.S.C. 2014). A fact is “material” if proof of its existence or nonexistence would affect disposition of the case under the applicable law. Anderson, 477 U.S. at 248.

         At the summary judgment stage, “the moving party must demonstrate the absence of a genuine issue of material fact. Once the moving party has met his burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show that there is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992) (internal citation omitted). Summary judgment is not warranted unless, “from the totality of the evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the [C]ourt believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment as a matter of law.” Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         Discussion

         This case arises from an incident during which First Sergeant Ken Rogers of the Dillon County Sheriff's Office (“DCSO”) allegedly used excessive force when arresting Plaintiff by pepper spraying, slapping, leg-shackling, and tasing him, and when DCSO deputies James Jackson, Andrew Miller, and Richard Day allegedly failed to protect Plaintiff from Rogers' actions.[2] Due to his alleged actions, Rogers was arrested and charged with misconduct in office and assault and battery, and he ultimately pleaded guilty to misconduct in office. Plaintiff has sued the aforementioned four officers in their individual and official capacities, as well as Sheriff Major Hulon in his official capacity, the DCSO, and Dillon County. In his amended complaint, Plaintiff asserts thirteen causes of action pursuant to 42 U.S.C. § 1983 and state law. All defendants except Rogers have answered and filed a motion for summary judgment.

         The Magistrate Judge recommends that the Court (1) deny summary judgment as to Plaintiff's § 1983 bystander liability claim against Day and gross negligence claim against the DCSO, (2) grant summary judgment as to all other claims against Dillon County, the DCSO, Hulon, Jackson, Miller, and Day, (3) find the issue of the DCSO's liability under the South Carolina Tort Claims Act (“SCTCA”) should remain pending; and (4) dismiss Rogers pursuant to Federal Rule of Procedure 4(m). See R & R [ECF No. 47] at p. 18. Thus, based on the Magistrate Judge's recommendation, the only remaining defendants would be Day and the DCSO. The parties have filed limited objections to the R & R.

         Initially, the Court notes there is no objection to the dismissal of Dillon County, Hulon, Jackson, and Miller. Finding no clear error in the R & R as to these four defendants, the Court will dismiss them from this case with prejudice. The parties' objections relate only to Day, the DCSO, and Rogers.

         I. Day

         The Magistrate Judge recommends denying summary judgment as to Plaintiff's § 1983 bystander liability claim against Day. R & R at pp. 8-14. Day makes two objections to this recommendation. See Defs.' Objs. [ECF No. 52] at pp. 2-8.

         A. Whether Plaintiff Adequately Pleaded a ยง 1983 Bystander ...


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