United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
Arnold Parson, Jr., proceeding pro se, filed this action in
this Court pursuant to 42 U.S.C. § 1983 against the
above-captioned Defendants. The matter is before the Court
for consideration of the parties' objections to the
Report and Recommendation (“R & R”) of United
States Magistrate Judge Kaymani D. West, who recommends (1)
granting the motion to dismiss filed by Defendant Danny Lee
Herring and (2) granting in part and denying in part the
motion to dismiss filed by Defendants Darren Miles, John Doe
1-18, Jane Doe 1-2, and the County of Marion. See ECF
Nos. 95, 102, & 103.
I. Review of the R & R
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); Fed.R.Civ.P. 72(b).
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).
Federal Rule of Civil Procedure 12(b)(1)
When a Rule 12(b)(1) motion challenge is raised to the
factual basis for subject matter jurisdiction, the burden of
proving subject matter jurisdiction is on the plaintiff. In
determining whether jurisdiction exists, the district court
is to regard the pleadings' allegations as mere evidence
on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment. The district court should apply the standard
applicable to a motion for summary judgment, under which the
nonmoving party must set forth specific facts beyond the
pleadings to show that a genuine issue of material fact
exists. The moving party should prevail only if the material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter of law.
Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991) (internal
citations omitted); see also Balfour Beatty
Infrastructure, Inc. v. Mayor & City Council of
Baltimore, 855 F.3d 247, 251 (4th Cir. 2017)
(“A Rule 12(b)(1) motion to dismiss should be granted
only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of
law.” (internal quotation marks omitted)).
Federal Rule of Civil Procedure 12(b)(6)
It is established that “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). [The Fourth Circuit] ha[s] recognized that
“facial plausibility is established once . . . the
complaint's factual allegations produce an inference . .
. strong enough to nudge the plaintiff's claims
‘across the line from conceivable to
plausible.'” See Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009) (quoting Twombly, 550 U.S. at 570). In
assessing the sufficiency of a complaint, [a court must]
assume as true all its well-pleaded facts and draw all
reasonable inferences in favor of the plaintiff. Id.
at 253. Thus, to satisfy the plausibility standard, a
plaintiff is not required to plead factual allegations in
great detail, but the allegations must contain sufficient
factual heft “to allow a court, drawing on
‘judicial experience and common sense, ' to infer
‘more than the mere possibility'” of that
which is alleged. Id. at 256 (quoting
Iqbal, 556 U.S. at 679).
Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447,
452 (4th Cir. 2017). When considering a Rule 12(b)(6) motion,
a court “may properly take judicial notice of matters
of public record.” Philips v. Pitt Cty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009);
see also Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007).
2013, the special referee for Marion County entered an order
and judgment of foreclosure and sale for property located at
3546 Quail Roost Road in Mullins, South Carolina; the order
identified Plaintiff Arnold Parson, Jr. as one of the
defendants in the foreclosure action. See ECF Nos.
45-1, 45-2, 45-3. In 2014 and 2015, the South Carolina Court
of Appeals and the South Carolina Supreme Court rejected
Plaintiff's appeal of the foreclosure action.
See ECF Nos. 45-4 & 45-5. Also in 2014 and 2015,
the special referee issued a writ of assistance identifying
Plaintiff and the 3546 Quail Roost Road property and
commanding the Sheriff of Marion County to “go to and
enter upon said land and . . . eject and remove
[Plaintiff]” and “all personal property of
[Plaintiff].” See ECF Nos. 45-6, 45-7, 45-8,
45-9, & 45-10. Plaintiff was served with a copy of the
writ of assistance on October 1, 2015. See ECF No.
45-10. On October 30, 2015, Plaintiff appealed the writ of
assistance, and both the South Carolina Court of Appeals and
the South Carolina Supreme Court rejected the
appeal. See ECF No. 45-11; see
also ECF No. 103-2 at pp. 1-5. On November 2, 2015, the
Marion County Sheriff's Office executed the writ of
assistance at Plaintiff's residence at 3546 Quail Roost
Road, and Plaintiff was arrested. See ECF Nos. 49-2
on March 15, 2017, Plaintiff filed this § 1983 action in
this Court alleging his constitutional rights were violated
when “Marion County Special Opts Officers”
unlawfully entered his property at 3546 Quail Roost Road on
November 2, 2015 (during a state of emergency), searched his
house, arrested him with excessive force, took him to jail,
and caused his family's personal belongings to be
destroyed. See ECF No. 1; Second Amended Complaint
[ECF No. 24]. Plaintiff sues the following Defendants:
Danny Lee Herring, Darren Miles, Marion County, as well as
John Does 1-18 and Jane Does 1-2 (“the Doe
Defendants”). Plaintiff alleges that Defendant Herring
is the owner of a construction company, that Defendant Miles
is the “Lieutenant for [the] Marion County Special Opts
Unit, ” and that the Doe Defendants are “unknown
Marion County Special Opts Officers.” See Sec.
Am. Compl. at ¶¶ 5, 15-16.
Herring has filed a motion to dismiss pursuant to Rule
12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil
Procedure and has submitted court documents from the state
foreclosure proceedings, and Defendants Miles, Marion County,
and the Does (collectively, “the Remaining
Defendants”) have filed a motion to dismiss pursuant to
Rule 12(b)(6). See ECF Nos. 36 & 45. Plaintiff
has filed responses in opposition to both motions and has
submitted documents related to his November 2, 2015 arrest.
See ECF Nos. 49, 77, 84, & 85. The Magistrate
Judge has entered an R & R recommending that the Court
grant Defendant Herring's motion and that the Court grant
in part and deny in part the Remaining Defendants'
motion. See R & R [ECF No. 95] at p. 22. The
Remaining Defendants and Plaintiff have filed objections to
the R & R, and Plaintiff has filed a reply to the
Remaining Defendants' objections. See ECF Nos.
102, 103, 104, & 107.