United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
plaintiff, Rudy Mial, filed this action raising claims
pursuant to 42 U.S.C. § 1983 and state law against the
remaining defendant, the Charleston County Sheriff's
Department. This matter is before the court pursuant
to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.) for a Report and Recommendation on the motion for
summary judgment filed by the Sheriff's Department. (ECF
No. 57.) Mial filed a response in opposition (ECF No. 64),
and the Sheriff's Department replied (ECF No. 67.) Having
reviewed the parties' submissions and the applicable law,
the court finds that Charleston County Sheriff's
Office's motion for summary judgment should be granted.
following facts are either undisputed or are viewed in the
light most favorable to the plaintiff, to the extent they
find support in the record. This matter arises out of the
defendant's allegedly inadequate response to Mial's
complaints of chest pains while he was detained in the Al
Cannon Detention Center, which is operated by Defendant
Charleston County Sheriff's Office.
release from his detention, Mial was diagnosed by his doctor
at the Veterans Administration with pneumonia. Pertinent to
the instant motion, Mial raises claims pursuant to 42 U.S.C.
§ 1983 for violation of the Fourth and Fourteenth
Amendments, and various state law claims.
Summary Judgment Standard
judgment is appropriate only if the moving party “shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to
particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
the evidence of the non-moving party is to be believed and
all justifiable inferences must be drawn in favor of the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). However, “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary
judgment is appropriate. Once the moving party makes this
showing, however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at
Mial's Claims Against Charleston County Sheriff's
defendant correctly asserts that Mial's claims for
alleged violations of 42 U.S.C. § 1983 and the Fourth
and Fourteenth Amendment fail as a matter of law because the
defendant is immune from suit. See Will v. Mich.
Dep't of State Police, 491 U.S. 58 (1989)
(recognizing that “arms of the State” are not
“persons” under § 1983, and observing that
“[w]e cannot conclude that § 1983 was intended to
disregard the well-established immunity of a State from being
sued without its consent”). Moreover, because the State
of South Carolina has not waived its immunity from suit in
state court for § 1983 claims, the defendant's
voluntary removal of this case to federal court has not, in
this instance, effected a waiver of the State's immunity
from suit for these claims. See Stewart v. North
Carolina, 393 F.3d 484, 490 (4th Cir. 2005) (holding
that the State did not waive sovereign immunity by
voluntarily removing the action to federal court for
resolution of the immunity question); see also S.C.
Code Ann. § 15-78-20(e); cf. Lapides v. Bd. of
Regents, 535 U.S. 613, 622 (2002) (holding that a State
that voluntarily invokes the jurisdiction of the federal
court waives immunity for claims in which it has
consented to suit in its own courts). Accordingly, the
Charleston County Sheriff's Office is immune from suit
with regard to these claims, and the defendant's motion
for summary judgment should be granted as to any federal
State Law Claims 
regard to Mial's claim purporting to arise under S.C.
Code Ann. § 16-5-60, it appears that every court
considering this statute has held that it was impliedly
repealed by the South Carolina Tort Claims Act. See,
e.g., Doe v. McGowan, No.
2:16-CV-00777-RMG, 2017 WL 659938 (D.S.C. Feb. 13, 2017)
(agreeing with Report and Recommendation dated January 9,
2017 collecting cases); Sadek v. Lambert, No.
0:13-CV-02174-TLW, 2014 WL 117671 (D.S.C. Jan. 13, 2014).