United States District Court, D. South Carolina, Orangeburg Division
Timothy L. Wright, Plaintiff,
Lieutenant Alfred Grant, Defendant.
Timothy M. Cain United States District Judge
Timothy L. Wright, a state prisoner proceeding pro se, filed
this action pursuant to 42 U.S.C. § 1983. On April 18,
2018, Magistrate Judge Kaymani D. West issued a Report and
Recommendation (“Report”) recommending that the
Defendant's Partial Motion to Dismiss (ECF No. 18) be
granted. (ECF No. 43). Plaintiff timely filed objections to the
Report. (ECF No. 50).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Furthermore, failure to file specific written objections to
the Report results in a party's waiver of the right to
appeal the district court's judgment based upon that
recommendation. See 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).
filed a partial motion to dismiss seeking the dismissal of
claims for money damages against him in his official capacity
based on Eleventh Amendment immunity and any potential claims
brought under the South Carolina Tort Claims Act.
(“SCTCA”). (ECF No. 18). Plaintiff filed a
response opposing the motion (ECF No. 25). Defendant
subsequently filed a reply (ECF No. 27), and Plaintiff filed
a sur-reply (ECF No. 31). In her Report, the magistrate judge
recommends granting Defendants' motion. (ECF No. 43 at
7). As noted above, Plaintiff timely filed objections to the
Report. (ECF No. 50).
Report, the magistrate judge found that Plaintiff's
claims against Defendant in his official capacity should be
dismissed based on Eleventh Amendment immunity. (Report at
6). In his objections, Plaintiff argues that Eleventh
Amendment immunity should not bar his claims against
Defendant in his official capacity. (ECF No. 50 at 8).
However, Plaintiff's objections are without merit. Under
the Eleventh Amendment, states as well as their agencies and
departments are immune from suits in federal court brought by
their citizens or the citizens of another state. See Will
v. Michigan Dep't of State Police, 491 U.S. 58, 70
(1989). “Under the Eleventh Amendment, ‘a State
cannot be sued directly in its own name regardless of the
relief sought, ' absent consent or permissible
congressional abrogation. For the purposes of the Eleventh
Amendment, a state official acting in his official capacity
is protected from a damages action by the same
immunity.” Ballenger v. Owens, 352 F.3d 842,
844-45 (4th Cir. 2003) (citations omitted). A suits against a
state defendant in his official capacity is construed as a
suit against the office itself, and so sovereign immunity
precludes such a suit for damages. Will, 491 U.S. at
71. However, the Eleventh Amendment does not bar “an
award of damages against an official in his personal capacity
[that] can be executed only against the official's
personal asserts.” Kentucky v. Graham, 473
U.S. 159, 166 (1985). Plaintiff has stated he is suing
Defendant in both his personal and official capacities.
(Compl. at 3). To the extent Defendant is sued in his
official capacity for money damages, as the Magistrate judge
determined, that claim is barred by the Eleventh Amendment
and thus is dismissed. Plaintiff's claims against Defendant
in his individual capacity remain pending.
Report, the magistrate judge recommends the court dismiss any
claims made pursuant to the SCTCA. (Report at 6-7). In his
objections, Plaintiff states that “his allegations is
(sic) not addressed in any state court terms.” (ECF No.
50 at 9). The court could construe this to mean Plaintiff has
not alleged a state claim. However, out of an abundance of
caution, the court will nonetheless address the Report and
its recommendation to dismiss any claims brought pursuant to
the SCTCA, an employee of a governmental entity who commits a
tort while acting within the scope of his official duty is
generally not liable, and the plaintiff must sue the
governmental agency itself. See S.C. Code Ann.
§ 15-78-70(a). However, if the plaintiff proves that
“the employee's conduct was not within the scope of
his official duties or that it constituted actual fraud,
actual malice, intent to harm, or a crime involving moral
turpitude, ” then the governmental agency is not
liable, and the employee is personally liable. S.C. Code Ann.
§ 15-78- 70(17). See also Moody v. Darnell,
2010 WL 297810, at *3 (D.S.C. January 21, 2010); Moore by
Moore v. Berkeley County School Dist., 486 S.E.2d 9, 11
(S.C. App. 1997). In her Report, the magistrate judge states
that Plaintiff has alleged that Defendant was acting within
the course and scope of his employment when the alleged
excessive force occurred. (Report at 6). In his Complaint,
however, Plaintiff alleges the Defendant maliciously and
sadistically. (ECF No. 1 at 3, 7). Moreover, in his
objections, Plaintiff alleges that Defendant acted
maliciously and intended to inflict harm, which would have
been outside the scope of his employment. (ECF No. 50 at 8).
See Price v. Montgomery, No. 4:05-cv-3309-RBH, *5
n.7, 2007 WL (Dec. 7, 2007 D.S.C.). Accordingly, the courts
declines to adopt the recommendation to dismiss any potential
thorough review of the Report and the record in this case,
the court adopts the Magistrate Judge's Report in part
(ECF No. 43). Defendant's Partial Motion to Dismiss (ECF
No. 18) is GRANTED in part, and
DENIED in part; and only Plaintiff's
official capacity claim for damages is dismissed.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...