United States District Court, D. South Carolina, Charleston Division
Christopher J. Fecas, Plaintiff,
South Carolina Department of Labor, Licensing & Regulation, and LRADAC (Lexington Richland Alcoho and Drug Abuse Council) Defendants.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on Defendant the South Carolina
Department of Labor, Licensing, and Regulation's
("LLR") motion for judgment on the pleadings. For
the reasons set forth below, the Court denies the motion.
is a licensed practical nurse in South Carolina. Plaintiff
alleges LLR prosecuted a disciplinary case against him
without cause. Specifically, Plaintiff was accused of
diverting controlled substances while working at the Veterans
Administration hospital in Charleston, South Carolina.
Plaintiff denies diverting controlled substances or having a
substance abuse disorder. During that investigation, the
State Board of Nursing ("BON") suspended his
nursing license for approximately two years. Plaintiff
alleges that while his license was suspended, LLR coerced him
into enrolling in a treatment program, the Recovering
Professionals Program ("RPP"), provided by
Defendant LRADAC. The alleged means of coercion include
threats that Plaintiff would be arrested if he did not enroll
in the RPP, even though, allegedly, LLR knew that law
enforcement agencies had ceased any investigation of
Plaintiff. The BON ultimately cleared Plaintiff of
wrongdoing. Plaintiff is currently in good standing with the
October 25, 2017, Plaintiff filed the present action in the
Charleston County Court of Common Pleas, alleging causes of
action for gross negligence, violation of the South Carolina
Unfair Trade Practices Act, "due process violations,
" and "right to counsel during questioning."
(Dkt. No. 1-2.) Defendants removed this action on November
29, 2017. The current amended complaint asserts a single
cause of action for gross negligence against LLR and LRADAC.
(Dkt. No. 9.) LLR has moved for judgment on the pleadings.
LRADAC has separately answered the complaint without moving
states in a footnote in its motion that "For purposes of
this Motion, LLR incorporates by reference the Answer it
previously filed [NEF Dkt. #4], along with all attachments
filed with its previous Answer" (referring to its answer
to the state-court complaint filed after removal). (Dkt. No.
11 at 1 n. 1.) Court declines to allow that incorporation. A
footnote in a motion memorandum is not a responsive pleading.
Moreover, the paragraph numbers of the amended complaint are
very different from those in the original state-court
complaint, which makes the previous answer's references
to paragraph numbers difficult to decipher. Consequently, the
present motion has been filed before a responsive pleading. A
motion asserting defenses made before a responsive pleading
is made under Rule 12(b) of the Federal Rules of Civil
Procedure, not Rule 12(c). The legal standard for a Rule
12(b)(6) motion is essentially the same as for a Rule 12(c)
motion. See Burbach Broad. Co. v. Elkins Radio
Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). The Court
therefore construes Plaintiffs motion for judgment as a
motion to dismiss under Rule 12(b)(6).
12(b)(6) permits the dismissal of an action if the complaint
fails "to state a claim upon which relief can be
granted." Such a motion tests the legal sufficiency of
the complaint and "does not resolve contests surrounding
the facts, the merits of the claim, or the applicability of
defenses. . . . Our inquiry then is limited to whether the
allegations constitute 'a short and plain statement of
the claim showing that the pleader is entitled to
relief.'" Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation
marks and citation omitted). In a Rule 12(b)(6) motion, the
Court is obligated to "assume the truth of all facts
alleged in the complaint and the existence of any fact that
can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non-moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
LLR, an executive department of the State of South Carolina,
asserts absolute prosecutorial immunity from Plaintiffs
claims. That assertion is without merit. As the cases cited
by LLR make clear, prosecutorial immunity applies to
prosecutors, not the state. See Guttman v.
Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006). The
state's liability is governed by sovereign immunity. In
South Carolina, sovereign immunity has been abolished except
as provided by the South Carolina Tort Claims Act
("SCTCA"). S.C. Code § 15-78-40. Thus, the
sole issue before the Court is whether Plaintiff has stated a
claim against LLR under the SCTCA.
argues Plaintiff has not stated a claim under the SCTCA for
two reasons. First, LLR argues that two exceptions to the
state's waiver of immunity apply, neither of which
permits an action for gross negligence:
(3) execution, enforcement, or implementation of the orders
of any court or execution, enforcement, or lawful
implementation of any process;
(4) adoption, enforcement, or compliance with any law or
failure to adopt or enforce any law, whether valid or
invalid, including, but not limited to, any charter,
provision, ordinance, ...