United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
filed this action pursuant to 42 U.S.C. § 1983 and the
South Carolina Tort Claims Act (SCTCA), S.C.Code Ann.
§§ 15-78-10 et seq. Presently before the court is
Defendant Dillon County Sheriff's Office and Richard
Day's Motion to Enforce Settlement (ECF. No.
79). Counsel for Plaintiff filed a Response
(ECF No. 80). All pretrial proceedings in this case were
referred to the undersigned pursuant to the provisions of 28
U.S.C. § 636(b)(1)(A) and (B) and Local Rule
73.02(B)(2)(d), DSC. This report and recommendation is
entered for review by the district judge.
January 8, 2018, the parties participated in a second
mediation following a ruling on Defendants' Motion for
Summary Judgment. The parties executed a Mediation Agreement
prior to beginning mediation. Signed Mediation Agreement (Ex.
1 to Def. Motion). The parties agreed to settle the case for
$25, 000.00. Settlement Agreement (Ex. 2 to Def. Motion). As
part of the agreement, Defendants agreed to pay the entire
mediation fee in order to facilitate settlement with
Plaintiff. Email correspondence and invoice from mediator
Richard Hinson (Ex. 3 to Def. Motion). The Court was notified
of the successful mediation via email on Monday, January 8,
2018. Email and ADR Tracking Form from Richard Hinson (Ex. 4
to Def. Motion).
for Defendants wrote Plaintiff's counsel on January 17,
2018, and enclosed a settlement check in the amount of $25,
000.00 payable to Robert Morning and Tristan M. Shaffer, as
his attorney, as well as a Release and Indemnification
Agreement (“Release”) to be signed by Plaintiff.
Settlement Documents (Ex. 5 to Def. Motion). However, on
January 19, 2018, Plaintiff's counsel wrote
Defendants' counsel and indicated Plaintiff's refusal
to sign the Release. Email dated January 19, 2018 (Ex. 6 to
Def. Motion). After communications between the parties'
counsel, Plaintiff's counsel continued to try and have
Plaintiff execute the settlement documents. By email dated
January 30, 2018, Plaintiff's counsel indicated Plaintiff
would, in fact, consummate settlement. Email dated January
30, 2018 (Ex. 7 to Def. Motion). However, later that same day
Plaintiff's counsel said Plaintiff continued to refuse to
sign the Release. Refusal Email dated January 30, 2018 (Ex. 8
to Def. Motion).
correspondence dated February 5, 2018, Plaintiff's
counsel wrote counsel for Defendants and reiterated
Plaintiff's refusal to sign the Release and
Indemnification Agreement against the advice of
Plaintiff's counsel and returned the settlement check.
Letter dated February 5, 2018 (Ex. 9 to Def. Motion).
for Plaintiff asserts that Plaintiff gave him numerous
reasons why he would not sign the release, including
a. he was up drinking the night before and did not have
b. he needed to be evaluated because he had post traumatic
stress disorder from the event;
c. he felt pressured by the mediation process;
d. he did not think Counsel had adequately represented him at
e. he did not understand the release; and
f. he believed that he would receive a greater percentage of