United States District Court, D. South Carolina, Charleston Division
REPORT & RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
Plaintiff, through counsel, brings this action under 42
U.S.C. § 1983 and state law against City of North
Charleston Police officers and the City of North Charleston
(“the City”). Before the court is Defendants'
Motion and Memorandum in Support of Motion for Summary
Judgment as to All Remaining Claims (“Defendants'
Motion”). (Dkt. No. 120.) 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 court recommends that the
Defendants' Motion be granted in part and denied in part.
of the Case
Plaintiff was arrested in her home on March 27, 2014, by
Defendant McGowan and was charged with assault on a police
officer. (Dkt. No. 54 ¶¶ 42, 101, 118, 119.)
Defendants McGowan, Wohlleb, Doxey, and Kouris were police
officers for the City of North Charleston
(“City”) at the time of the Plaintiff's
arrest. (Id. ¶ 3.) At approximately 5:00 p.m.
on March 27, 2014, the Plaintiff left her home, which she
shared with her mother, and went to a work function.
(Id. ¶ 43.) The Plaintiff returned home at 9:20
p.m. and fell asleep on her bed watching television on a
laptop. (Id. ¶ 44.) At approximately 10:00
p.m., the Plaintiff woke up and went to retrieve items from
her car. (Id. ¶ 45.) The door to the house
locked behind the Plaintiff. (Id.) The Plaintiff
pounded on her door and yelled to awaken her mother for about
four minutes. (Dkt. No. 70-3. at 3-4.) The Plaintiff's
mother, who has dementia and is referred to herein as
“Jane Doe, ” was unable to open the door. The
Plaintiff alleges that she directed her mother to a glass
door where the Plaintiff explained to her mother how to open
the door. (Id.) By 10:04 p.m., the Plaintiff alleges
that she and her mother were back in their beds, and the
Plaintiff again fell asleep watching television on a laptop.
(Dkt. No. 54 ¶ 47.)
the Plaintiff's neighbor, Jake Sadler, called 911 to
report the events transpiring with the Plaintiff being locked
out of her house. (Dkt. No. 70-2 at 3-4.) Mr. Sadler
testified that he observed the Plaintiff banging on her door
and yelling. (Id.) Mr. Sadler testified that the
Plaintiff walked over next to the sidewalk, pulled up her
dress, and appeared to urinate in the grass. (Id.)
After she finished urinating, the Plaintiff returned to the
door and resumed pounding and yelling. (Id.) The
Plaintiff's account does not include that she urinated
McGowan was the first officer to arrive at the
Plaintiff's house in response to the 911 call. (Dkt. No.
70-10 at 3.) Upon arrival, Defendant McGowan noted a vehicle
in the driveway with the interior light on, the hood still
warm, and several wine bottles in the “back.”
(Dkt. No. 70-1 at 11, 42.) Defendant McGowan saw a pair of
high heels next to the driver's door on the
ground. (Id. at 11.) Defendant McGowan
knocked on the front door and received no response.
(Id. at 6.) Defendant McGowan then proceeded to the
back yard to knock on the rear doors. (Id. at 6-7.)
Defendant McGowan testified that as she walked through the
gate to the backyard, she noticed a large green
purse with blood on it. (Id.) Defendant
McGowan could see the purse with her flashlight.
(Id.) Defendant McGowan then radioed to dispatch at
10:22 p.m. that the car had an open “trunk” with
wine inside, a bloody purse was on the ground, she was unable
to locate “the victim, ” and no one was coming to
the door. (Dkt. No. 70-1 at 6, 48.)
McGowan knocked on the back door and received no response.
(Dkt. No. 70-1 at 14.) Defendant McGowan then met with Mr.
Sadler, who repeated to her what he had told the 911
dispatcher. (Id. at 24-25.) Defendants Doxey and
Wohlleb arrived on scene simultaneously but in different
vehicles. (Dkt. No. 70-10 at 3.) Defendant McGowan
briefed Defendants Doxey and Wohlleb on her investigation to
that point. (Dkt. No. 70-1 at 14-16.) The three Defendants
decided to attempt to wake up a resident of the home to
conduct a wellness check. (Id.) Defendant Doxey went
to the front door and began knocking while Defendants McGowan
and Wohlleb stayed at the back door banging on it.
(Id. at 16-17.)
Wohlleb was able to open the back door, which was a sliding
glass door, by lifting the door within the frame. (Dkt. Nos.
70-1 at 17-18; 70-4 at 4-5.) Defendants Wohlleb and McGowan
entered the residence, which was dark, and announced their
presence. (Id.) They did not receive a response.
(Id.) At the same time, Defendant Doxey was knocking
on the front door and saw an elderly lady coming to open the
door. (Dkt. No. 70-10 at 5.) The lady turned away from
Defendant Doxey knocking at the front door to face Defendants
Wohlleb and McGowan, who were approaching from inside the
home. (Id.; Dkt. Nos. 70-1 at 18; 70-4 at 5.)
Defendant Doxey observed the lady escort Defendants Wohlleb
and McGowan upstairs and out of his sight. (Dkt. No. 70-10 at
5-6.) Defendant Doxey then went around to the back of the
house and entered through the open door. (Id. at 6.)
elderly lady, who was Jane Doe, looked towards Defendants
Wohlleb and McGowan. (Dkt. No. 70-4 at 5.) Defendant Wohlleb
asked her if everything was “okay” and she said
yes. (Id.; Dkt. No. 70-1 at 19.) Jane Doe did not
appear to be injured or in any distress. (Dkt. No. 70-1 at
19.) Defendants Wohlleb and McGowan explained that they were
responding to a family disturbance call and asked where her
daughter was. (Dkt. No. 70-4 at 5.) Jane Doe told them the
Plaintiff was upstairs in her bedroom. (Id.)
Defendants Wohlleb and McGowan asked if Jane Doe would show
them where Plaintiff was, and Jane Doe responded in the
affirmative and escorted Defendants Wohlleb and McGowan
upstairs. (Id.; Dkt. No. 70-1 at 19-20.)
McGowan found the Plaintiff laying in her bed on top of her
covers in the same clothing that was described by Mr. Sadler
in the 911 call. (Dkt. No. 70-1 at 20.) The Defendants'
account and the Plaintiff's account of what happened in
the Plaintiff's bedroom diverge at this point.
Defendants' account is as follows: Defendant McGowan
testified that she saw red wine spilled on the
Plaintiff's shirt and that her knee was bleeding. (Dkt. No.
70-1 at 21.) Defendant McGowan could not recall how the
Plaintiff woke up, but Defendant McGowan asked the Plaintiff
how much alcohol she had consumed because Defendant McGowan
was concerned the Plaintiff might need her stomach pumped.
(Id. at 21-22.) Defendant McGowan testified that
Plaintiff first said she had “too much” to drink
and then “not enough.” (Id. at 22.) The
Plaintiff's speech was slurred, and she appeared
disoriented. (Id.; see also Dkt. No. 70-4
at 6.) Defendant McGowan and the other Defendants asked the
Plaintiff why her purse and shoes were outside. (Id.
at 23.) The Plaintiff attempted to get up to retrieve the
items from outside but was unsteady on her feet.
(Id.) Defendants Doxey and Wohlleb went to retrieve
the Plaintiff's items from outside leaving Defendant
McGowan alone with the Plaintiff and Jane Doe. (Id.
at 23, 27.) Defendant McGowan asked the Plaintiff if
she needed EMS to come for her knee, but she declined.
(Id. at 28.) Defendant McGowan continued to ask
Plaintiff questions to make sure she appeared coherent and
had not fallen or had a concussion. (Id. at 30-32.)
became belligerent and angry. (Dkt. No. 70-1 at 30-32.)
Defendant McGowan directed Jane Doe to go to another room
because the Plaintiff was getting more agitated with her
mother in the room. (Id. at 32-33.) The Plaintiff
was demeaning her mother, who appeared fearful of the
Plaintiff. (Id. at 35, 43.) Defendant McGowan
testified that Plaintiff then lunged towards her and poked
her in the eye while swinging her arms and hands.
(Id. at 37.) Defendant McGowan was able to control
the Plaintiff by getting one of her hands in a cuff.
(Id.) Defendant McGowan radioed for Doxey to come
back upstairs and Doxey and Wohlleb returned. (Id.)
Plaintiff's account of what happened in her bedroom is as
follows: The Plaintiff was awakened by a
“brut[e]” that attacked her in her bed. (Dkt. No.
70-3 at 30.) The “assailant” that attacked her in
the dark caused her knee to be carpet burned resulting in her
bloody knee. (Id.) The Plaintiff testified that her
knee was not injured before the carpet burn. (Id.)
The Plaintiff agreed that Defendant McGowan was attempting to
ask her if she needed medical attention and ask how much
alcohol she had consumed. (Id. at 30-31.) The
Plaintiff did not respond to the question because she was
“terrified” and “yelling” for the
officers to get out of her house. (Id. at 31.) The
Plaintiff stated that she was disoriented because
“there was a blob, a gigantic, violent blob in my room
with a flashlight in my face.” (Id. at 32.)
The Plaintiff did not remember any other officers being in
her room. (Id. at 33.) The Plaintiff testified that
she never tried to get out of bed because Defendant McGowan
“put [the Plaintiff] to the floor from [her] bed”
by her wrist. (Id. at 34, 37.) Defendant McGowan
then “violently and forcefully with a …death
grip on the back of [her] arm that caused a perfect handprint
bruise, stood [the Plaintiff] up to [her] feet, once
she'd beaten [Plaintiff] up, and took [Plaintiff] down
the stairs.” (Id. at 34.) The Plaintiff yelled
for her mother to “stay out of this.”
(Id. at 35.)
McGowan arrested Plaintiff and charged her with assault on a
police officer under a North Charleston city ordinance. (Dkt.
Nos. 70-1 at 38; 120-12.) The Plaintiff's charge was
eventually dismissed and expunged following the
Plaintiff's completion of a pretrial diversionary
program. (Dkt. No. 79-15; 79-22.)
Kouris arrived on the scene in response to a request for
transport. (Dkt. No. 70-6 at 3.) Defendant Kouris transported
the Plaintiff to jail. (Dkt. No. 70-6.) The Plaintiff
testified that Defendant Kouris “leered at [her]
skirt” while shackling the Plaintiff. (Dkt. No. 80-4 at
10.) The Plaintiff alleged that Defendants McGowan and Kouris
then defamed the Plaintiff by telling jail staff that she had
committed a felony by abusing her mother. (Dkt. No. 54 ¶
to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment “shall” be granted “if the movant
shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). “Facts are
‘material' when they might affect the outcome of
the case, and a ‘genuine issue' exists when the
evidence would allow a reasonable jury to return a verdict
for the nonmoving party.” The News & Observer
Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a
motion for summary judgment, “‘the nonmoving
party's evidence is to be believed, and all justifiable
inferences are to be drawn in that party's
favor.'” Id. (quoting Hunt v.
Cromartie, 526 U.S. 541, 552 (1999)); see also
Perini Corp. v. Perini Constr., Inc., 915 F.2d 121,
123-24 (4th Cir. 1990). However, “the nonmoving party
must rely on more than conclusory allegations, mere
speculation, the building of one inference upon another, or
the mere existence of a scintilla of evidence.”
Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
Defendants' Motion seeks summary judgment on the
Plaintiff's § 1983 claim against Defendant McGowan
for excessive force in the ninth cause of action. (Dkt. No.
120.) Additionally, the Defendants' Motion seeks summary
judgment on the Plaintiff's state law claims against the
City for trespass in the third cause of action, invasion of
privacy in the fourth cause of action, negligent hiring in
the fifth cause of action, negligent supervision in the sixth
cause of action, negligent retention in the seventh cause of
action, assault in the eighth cause of action, battery in the
ninth cause of action, false imprisonment in the tenth cause
of action, and defamation in the twelfth and fourteenth
causes of action. (Id.)
42 U.S.C. § 1983 Claim Against Defendant McGowan for
Plaintiff alleges that Defendant McGowan used excessive force
against her when she was arrested in her bedroom on March 27,
2014, in violation of her Fourth and Fourteenth Amendment
rights. (Dkt. No. 54 ¶¶ 233-236.) In order to state
a claim pursuant to 42 U.S.C. § 1983, a plaintiff must
allege (1) that he or she “has been deprived of a
right, privilege or immunity secured by the Constitution or
laws of the United States, ” and (2) “that the
conduct complained of was committed by a person acting under
color of state law.” Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.
1998) (citing 42 U.S.C. § 1983); see also Gomez v.
Toledo, 446 U.S. 635, 540 (1983); Hall v.
Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In a
§ 1983 action, “liability is personal, based upon
each defendant's own constitutional violations.”
Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
Fourth Amendment prohibition on unreasonable seizures bars
police officers from using excessive force to seize a free
citizen.” Jones v. Buchanan, 325 F.3d 520, 527
(4th Cir. 2003) (citing Graham v. Connor, 490 U.S.
386, 395 (1989)). This court must analyze whether an
officer's actions were objectively reasonable in
determining if the force brought to bear was excessive.
E.W. by & through T.W. v. Dolgos, 884 F.3d 172,
179 (4th Cir. 2018). “Determining the reasonableness of
an officer's actions ‘requires a careful balancing
of the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the
countervailing governmental interests at stake.'”
Id. (quoting Graham, 490 U.S. at 396). The
court must examine the officer's actions “in light
of the facts and circumstances confronting [her], without
regard to [her] underlying intent or motivation.”
Id. (quoting Graham, 490 U.S. at 397).
“Subjective factors involving the officer's
motives, intent, or propensities are not relevant.”
Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir.
2017) (quoting Rowland v. Perry, 41 F.3d 167, 173
(4th Cir. 1994)).
evaluate the following three factors when determining if the
force used by an officer was reasonable: “ the
severity of the crime at issue,  whether the suspect poses
an immediate threat to the safety of the officers or others,
and  whether he is actively resisting arrest or attempting
to evade arrest by flight.” E.W. by & through
T.W., 884 F.3d at 179 (quoting Graham, 490 U.S.
at 396). Courts may additionally consider “other
‘objective circumstances potentially relevant to a
determination of excessive force.'” Id.
(quoting Kingsley v. Hendrickson, __U.S. __, 135
S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015)). “The
ultimate question is whether the totality of the
circumstances justified a particular sort of seizure.”
Id. (quotations and citations omitted).
the three factors in Graham, the Plaintiff was
ultimately arrested under a North Charleston City Ordinance
for assault on a law enforcement officer. (Dkt. No. 120-7.)
The Plaintiff denied that she ever physically struck or
threatened Defendant McGowan. (Dkt. No. 120-3 at 23.)
According to the Plaintiff, she did not pose a threat to
Defendant McGowan as she was asleep in her bed until
Defendant McGowan woke her up, threw her to the ground, and
arrested her without probable cause. (Id. at 19-24.)
As to whether the Plaintiff was resisting arrest, the
Plaintiff conceded that she was “kicking away, trying
to get out from underneath” Defendant McGowan but that
Defendant McGowan remained in complete control. (Id.
the totality of the circumstances, the incompatible
testimonies of the Plaintiff and McGowan create a genuine
issue of material fact in this case. The Plaintiff and
Defendant McGowan have given starkly contrasting accounts as
to the circumstances of the Plaintiff's arrest. The
Plaintiff testified that Defendant McGowan was the only
officer in the room at the time she was arrested. (Dkt. No.
120-3 at 21.) The Plaintiff testified that the entire
incident was in the dark, she was terrified, and yelling at
McGowan to get out of her house. (Id. at 20; Dkt.
No.70-3 at 36.) The Plaintiff testified that Defendant
McGowan took her to the floor from her bed and then violently
pulled her back up to her feet. (Dkt. No.70-3 at 34.) The
Plaintiff denied that she ever struck Defendant McGowan
because Defendant McGowan had “complete control of the
situation” and left the Plaintiff bloody and bruised.
(Dkt. No. 120-3 at 23.) The Plaintiff testified that her knee
was bloodied by Defendant McGowan throwing her to the floor.
(Id. at 30.) The Plaintiff's account is that she
was attacked and arrested without any cause by Defendant
McGowan. In contrast, Defendant McGowan alleges that she
arrested the Plaintiff because the Plaintiff physically
attacked her and poked her in the eye. (Dkt. No. 120-1 at
the Plaintiff or Defendant McGowan was the initial aggressor
who used force is an issue of fact that cannot be resolved by
the court. If, as the Plaintiff testified, Defendant McGowan
took her to the ground out of her bed without provocation,
the use of force could be found to be unreasonable. The
Plaintiff testified that she resisted arrest only after
Defendant McGowan used force in taking the Plaintiff to the
ground. (Dkt. No. 120-3 at 22-23.) The undersigned concludes
that a genuine issue of material fact exists as to whether
Defendant McGowan was objectively reasonable in using force
during her arrest of the Plaintiff and recommends that the
Defendants' Motion be denied as to the § 1983
excessive force claim.
State Law Claims Against City
Plaintiff asserts her state law claims against the City for
trespass, invasion of privacy, negligent hiring, negligent
supervision, negligent retention, assault, battery, false
imprisonment, and defamation under the South Carolina Tort
Claims Act (“the Act”), SC Code § 15-78-10
et seq. The Act “governs all tort claims
against governmental entities.” Hawkins v. City of
Greenville, 358 S.C. 280, 292, 594 S.E.2d 557, 563 (Ct.
App. 2004) (citing Flateau v. Harrelson, 355 S.C.
197, 203, 584 S.E.2d 413, 416 (Ct. App. 2003)). All
governmental entities may be held liable for their torts as a
private individual would be liable subject to the limitations
and exemptions of the Act. Id. (citing S.C. Code
Ann. § 15-78-40 (Supp. 2003)). S.C. Code Ann. §
15-78-30(d) defines “governmental entity” as
“the State and its political subdivisions.” The
Act is the exclusive remedy for any tort committed by an
employee of a governmental entity. “An employee of a
governmental entity who commits a tort while acting within
the scope of his official duty is not liable therefor
except…if it is proved 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.” S.C. Code Ann. §
15-78-70. The limitations and exemptions in the act must be
liberally construed in order to limit the liability of the
State. Hawkins, 358 S.C. at 292. “The
governmental entity asserting the Act as an affirmative
defense bears the burden of establishing a limitation upon
liability or an exception to the waiver of immunity.”
Id. S.C. Code Ann. § 15-78-60 provides forty
“exceptions” to the limited waiver of sovereign
immunity the Act provides.
Plaintiff's claims for trespass, invasion of privacy,
assault, battery, false imprisonment, and defamation are all
intentional torts under South Carolina law. The Defendants
argue that these claims are barred by exceptions to the Act
(Dkt. No. 120 at 11-18) as well as on their merits
third cause of action is brought against the City for
trespass under state law. (Dkt. No. 54 ¶¶ 183-90.)
This court has already recommended that a portion of this
claim is precluded under the doctrine of collateral estoppel.
(Dkt. No. 166 at 13.) The court now concludes that no genuine
issue of material fact exists as to the Plaintiff's third
cause of action, and the City is entitled to summary
judgment. Additionally, the claim is barred by S.C. Code
a trespass action to lie, ‘the act must be affirmative,
the invasion of the land must be intentional, and the harm
caused by the invasion of the land must be the direct result
of that invasion.'” Hawkins v. City of
Greenville, 358 S.C. 280, 296, 594 S.E.2d 557, 566 (Ct.
App. 2004) (quoting Mack v. Edens, 320 S.C. 236, 240, 464
S.E.2d 124, 127 (1995)). Under South Carolina law, a trespass
is limited to the protection of property interests; i.e., any
interference with “one's right to the exclusive,
peaceable possession of his property.” Ravan v.
Greenville Cnty., 315 S.C. 447, 463, 434 S.E.2d 296, 303
(Ct. App. 1993); see also Hedgepath v. Am. Tel. &
Tel. Co., 559 S.E.2d 327, 337 (Ct. App. 2001) (Defining
trespass as any intentional invasion of the plaintiff's
interest in the exclusive possession of his property.).
“The essence of trespass is the unauthorized entry onto
the land of another.” Id.
court has already concluded that the Defendants' entry
onto the Plaintiff's mother's property and into her
home was lawful because exigent circumstances existed to
support a warrantless entry. (Dkt. No. 166 at 17-21.) The
court concluded that those exigent circumstances continued to
exist through the time the Defendants assured that the no
emergency existed involving the Plaintiff, which required
entry into the Plaintiff's bedroom. (Id.)
Additionally, once the individual Defendants made entry into
the residence, the evidence is uncontroverted that the
Plaintiff's mother took them to the Plaintiff's