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Morning v. Dillon County

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

May 25, 2018

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.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff 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).[1] 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.

         II. RELEVANT FACTS

         On 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).

         Counsel 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).

         In 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).

         Counsel 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 enough sleep;
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 mediation;
e. he did not understand the release; and
f. he believed that he would receive a greater percentage of the ...

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