United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Timpson (“Plaintiff”), a state prisoner
proceeding pro se, brought this civil action pursuant to 42
U.S.C. § 1983. This matter is before the court on
Defendants' Motion to Dismiss for Failure to State a
Claim filed on July 12, 2017. ECF No. 29. The court entered a
Roseboro Order on July 17, 2017, advising Plaintiff of
the importance of such motions and of the need for him to
file an adequate response. ECF No. 30. Plaintiff responded to
Defendants' motion on August 17, 2017, ECF No. 33, and
Defendants filed a reply to Plaintiff's Response on
August 25, 2017, ECF No. 34, making this motion ripe for
consideration. This case was referred to the undersigned
United States Magistrate Judge for all pretrial proceedings
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A)
and (B) and Local Rule 73.02(B)(2)(d) and (e) (D.S.C.).
Because Defendants' Motion to Dismiss is dispositive, a
Report and Recommendation is entered for the court's
Factual and Procedural Background
is currently incarcerated at Lieber Correctional Institution,
part of the South Carolina Department of Corrections
(“SCDC”) prison system. In the Complaint filed in
this case, Plaintiff alleges that he was subjected to
excessive force and medical indifference as the result of
Defendants Pondexter's and Silva's introduction of
gas munitions into his closed cell on March 16, 2014. ECF No.
1 at 6-7. He asserts that Defendant Von Mutius was the other
Defendants' supervisor and did nothing to help Plaintiff
get cleaned up after the gassing incident. Plaintiff alleges
that his eyes were permanently damaged and that he was
subjected to pain and suffering when he was not allowed to
wash his face or flush his eyes for many hours. Id.
at 7-9, 17. Plaintiff asserts that his federal constitutional
rights under the Eighth Amendment were violated by
Defendants' actions. Id. at 15, 16. Plaintiff
seeks compensatory and punitive damages. Id. at 18.
In his Complaint, Plaintiff acknowledges that he pursued a
state-court case “dealing with the same facts involved
in this action . . . .” in Dorchester County, South
Carolina through its dismissal on January 25, 2017.
Id. at 1.
their Motion to Dismiss, Defendants assert that this case is
barred by the doctrine of res judicata based on the summary
judgment that was entered in Plaintiff's state-court
complaint in Dorchester County. See Timpson v. Dep't
of Corr. S. C., No. 2015-CP-18-0716. They attach to
their Motion the state-court complaint, a state-court order
dismissing the same three corrections officers who are
Defendants in this case from the case under the employee
immunity provisions of the South Carolina Torts Claim Act
(“SCTCA”), and the state-court order granting
summary judgment for the remaining defendant SCDC. ECF Nos.
29-1, 29-2, 29-3. Defendants argue that the summary judgment
entered with prejudice in the state-court action precludes
Plaintiff's attempted pursuit of an action under 42
U.S.C. § 1983 against the three remaining Defendants in
this case who were also parties to the state-court action.
ECF No. 29 at 5-7. Defendants also assert that
Plaintiff's federal claims are barred by the doctrine of
collateral estoppel. Id. at 7-8. Plaintiff responds
that res judicata does not bar this federal action because
the three Defendants in this case were no longer parties in
the state-action when the summary judgment was entered. ECF
No. 33 at 9-10. Plaintiff also argues that res judicata does
not apply to this case because the state-court complaint was
based solely on state law under the SCTCA, whereas this case
is based on different claims under § 1983. Id.
at 12-13. Defendants reply that Plaintiff fails to understand
that res judicata bars all claims that could have been
brought in the original forum and that his § 1983 claims
are the type of claims that could have been pursued in the
state-court action. ECF No. 34 at 2.
Standard of Review
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In construing a
motion to dismiss, the facts, though not the legal
conclusions, alleged in a plaintiff's pro se complaint
must be taken as true. Loe v. Armistead, 582 F.2d
1291, 1292 (4th Cir. 1978); Iqbal, 556 U.S. 662. A
pro se complaint should survive a motion to dismiss under
Rule 12(b)(6) for failure to state a claim only when a
plaintiff has set forth “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “Factual allegations
must be enough to raise a right to relief above the
speculative level” and beyond the level that is merely
conceivable. Id. at 555. A pro se complaint should
be liberally construed. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). However, a court is not required
“to accept as true a legal conclusion couched as a
factual allegation, ” Papasan v.
Allain, 478 U.S. 265, 286 (1986), or a legal
conclusion unsupported by factual allegations.
Iqbal, 556 U.S. at 679. Dismissal is appropriate
when a complaint contains a description of underlying facts
that fails to state a viable claim. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Twombly, 550
U.S. at 558.
South Carolina law, the defense of res judicata requires
satisfaction of the following elements:
(1) The parties must be the same or their privies; (2) the
subject matter must be the same; and (3) while generally the
precise point must be ruled, yet where the parties are the
same or are in privity the judgment is an absolute bar not
only of what was decided but of what might have been decided.
Bagwell v. Hinton, 32 S.E.2d 147, 156 (S.C. 1944);
see also First Nat'l Bank of Greenville v. U.S. Fid.
& Guar. Co., 35 S.E.2d 47, 52 (S.C. 1945). More
recently, the South Carolina Court of Appeals has stated the
elements somewhat differently, stating that “[t]o
establish the defense of res judicata three elements must be
shown: (1) identity of the parties or their privies; (2)
identity of the subject matter of the litigation; and (3) a
final determination on the merits of the claim in the former
proceeding.” H.G. Hall Constr. Co. v. J.E.P.
Enters., 321 S.E.2d 267, 271 (S.C. Ct. App.
1984). Under res judicata “[a]
final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were
or could have been raised in that action.”
Federated Dep't Stores, Inc. v. Moitie, 452 U.S.
394, 398 (1981) (emphasis added); Brown v. Felsen,
442 U.S. 127, 131 (1979); Meekins v. United Transp.
Union, 946 F.2d 1054, 1057 (4th Cir. 1991). The term
“privy”, when applied to a judgment or decree,
means one so identified in interest with another that he
represents the same legal right. One in privity is one whose
legal interests were litigated in the former proceeding.
Richburg v. Baughman, 351 S.E.2d 164, 166 (S.C.
1986). “[T]he concept of privity rests not on the
relationship between the parties asserting it, but rather on
each party's relationship to the subject matter of the
litigation.” Claims are based on the same cause of
action if they “arise[ ] out of the same transaction or
series of transactions as the claim resolved by the prior
judgment.” Laurel Sand & Gravel. Inc. v.
Wilson, 519 F.3d 156, 162 (4th Cir. 2008) (internal
citations and quotations omitted). “Res
judicata . . . bars subsequent actions by the same
parties when the claims arise out of the same transaction or
occurrence that was the subject of a prior action between
those parties.” Riedman Corp. v. Greenville Steel
Structures, Inc., 419 S.E.2d 217, 218 (S.C. 1992). The
Fourth Circuit Court of Appeals has held that
“[g]enerally, claims are part of the same cause of
action when they arise out of the same transaction or series
of transactions . . . or the same core of operative
facts.” In re Varat Enters., Inc., 81 F.3d
1310, 1316 (4th Cir. 1996) (internal citations omitted). By
precluding parties in a subsequent proceeding from raising
claims that were or could have been raised in a prior
proceeding, “[r]es judicata ... encourages reliance on
judicial decisions, bars vexatious litigation, and frees the
courts to resolve other disputes.” Pueschel v.
United States, 369 F.3d 345, 354 (4th Cir. 2004)
(quoting Brown, 442 U.S. at 131).
parties or in privity
the state-court action and judgment relied on by Defendants
for their res judicata defense satisfy all elements of the
defense and, therefore, preclude this court from considering
Plaintiff's § 1983 claims against Defendants
Pondexter, Silva, and Von Mutius. First, the parties are the
same in both the state court and in this court because the
state-court complaint shows that, in addition to SCDC,
Plaintiff sued Pondexter, Silva, and Von Mutius. In the state
action caption, SCDC is the only defendant, but the
“parties” section of the complaint itself lists
Defendants Pondexter, Silva, and von Mutius and makes
allegations and causes of action against each of them. While
the individual defendants were dismissed before the
conclusion of the state-court case pursuant to the South
Carolina Tort Claims Act, SC Code §§15-78-70(a) and
(b) by order dated January 11, 2016, their interests were
clearly represented by SCDC throughout the remainder of the
case. SCDC had to prove that they properly exercised their
discretion in connection with the gassing incident in order
for it to obtain the final summary judgment in the case.
Also, the allegations about Defendants' actions on that
day are identical in the state complaint and in the Complaint
in this court. On summary judgment, the state court found
that the individual defendants validly exercised their
discretion during the same encounter with Plaintiff that,
factually, formed the basis for both Plaintiff's state
tort claims and his § 1983 claims in this case.
assertion that the first prong is not met because the three
individual defendants (Defendants here) were dismissed from
the state case before judgment is unavailing. Even after they
were dismissed from the state case, Defendants were still in
privity with the remaining defendant, SCDC, because it was
representing their interests regarding the reasonableness of
the actions that they took in connection with the subject
matter of the state-court action: the same gassing incident
involving Plaintiff at Lieber Correctional Institution on
March 15, 2014 that is the subject of Plaintiff's
Complaint in this case. Moreover, the remaining defendant in
the state action was SCDC, the state agency with which all
three Defendants were employed. Several courts have held that
government employees are in privity with the agency for which
they work. Defendants who are members of the same government
agency are generally treated as being in privity for purposes
of being able to assert a res judicata defense. See,
e.g., Sunshine Anthracite Coal Co. v. Adkins,310 U.S. 381, 402-03 (1940) (“There is privity between
officers of the same government so that a judgment in a suit
between a party and a representative of [a governmental
entity] is res judicata in relitigation of the same
issue between that party and another officer of the
government.”); Boone v. Kurtz,617 F.2d 435,
436 (5th Cir. 1980) (res judicata dismissal of second suit
that added IRS commissioner as defendant affirmed because
there was “privity between officers of the same
government” so that judgment in favor of IRS agents in
first suit barred re-litigation); Benbow v. Wall,
No. 13-757S, 2014 WL 652354 (D.R.I. 2014) (dismissing
prisoner's second suit based on res judicata despite
addition of new correctional officer defendant who was
employed by same agency as original defendants). Accordingly,
the parties in the state-court action and in this ...