United States District Court, D. South Carolina, Rock Hill Division
Jeffrey S. Stroman, Plaintiff,
York County Department of Social Services, Defendant.
ORDER AND REPORT AND RECOMMENDATION
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
plaintiff, Jeffrey S. Stroman, proceeding pro se,
brought this employment discrimination action pursuant to 28
U.S.C. § 1915, raising claims pursuant to the Americans
with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101, et seq., and the Family and
Medical Leave Act (“FMLA”), 28 U.S.C.
§§ 2601, et seq. (ECF Nos. 12 & 16.)
This matter is now 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 Defendant York County Department
of Social Services's (“DSS”) motion to
dismiss the Amended Complaint. (ECF No. 21.)
response to DSS's motion, Plaintiff filed a Second
Amended Complaint and response in opposition to the motion to
dismiss (ECF No. 34). The court construes the Second Amended
Complaint as a motion to amend because, pursuant to Federal
Rule of Civil Procedure 15(a), Plaintiff must now obtain
leave of court or DSS's consent to amend his pleading. In
the motion to amend, Plaintiff seeks to withdraw his FMLA and
ADA claims, and instead assert claims of intentional
infliction of emotion distress and defamation pursuant to the
South Carolina Tort Claims Act, SC Code Ann. §§
15-78-10, et seq. (“SCTCA”). (ECF No. 34
at 3.) Plaintiff also seeks to add a DSS employee and York
County as defendants to this action, expressly purporting to
assert claims against them pursuant to the
SCTCA. (Id. at 4.) In response, DSS
argues Plaintiff's motion to amend is futile. (ECF No.
39.) DSS does not oppose Plaintiff's voluntary withdrawal
of his federal claims. (Id.)
court agrees that Plaintiff's motion to amend to assert
SCTCA claims against those three defendants is futile, and
therefore it is denied. (ECF No. 34); see Foman v.
Davis, 371 U.S. 178 (1962) (holding that leave to amend
a pleading should be denied when the amendment would cause
undue delay, when it would be prejudicial to the opposing
party, when there has been bad faith on the part of the
moving party, or when the amendment would be futile);
U.S. ex rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir. 2008) (“Under
Rule 15 of the Federal Rules of Civil Procedure, a court
should freely give leave when justice so requires. Although
such motions should be granted liberally, a district court
may deny leave if amending the complaint would be futile-that
is, if the proposed amended complaint fails to satisfy the
requirements of the federal rules.”) (internal
citations and quotation marks omitted); Johnson v.
Oroweat Foods Co. 785 F.2d 503, 510 (4th Cir. 1986)
(“Leave to amend, however, should only be denied on the
ground of futility when the proposed amendment is clearly
insufficient or frivolous on its face.”). As DSS points
out, the current defendant, York County Department of Social
Services, is a local office of an arm of the State of South
Carolina. See S.C. Code Ann. § 1-30-10-(A)(20)
(enabling statute creating DSS as a state agency within the
executive branch); S.C. Code Ann. § 43-1-10. The State
of South Carolina and its agencies are immune from suit for
damages in federal court under the Eleventh
Amendment.See Alden v. Maine, 527 U.S. 706,
712-13 (1999); Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S.
1 (1890); see also Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101-02 (1984). While immunity
does not bar suit where a state has given consent to be sued,
or where Congress abrogates the sovereign immunity of a
state, neither of those exceptions applies in the instant
case. See S.C. Code Ann. § 15-78-20(e).
the only claims Plaintiff seeks to bring are pursuant to the
SCTCA. Under the SCTCA, the State expressly consents to suit
only in a South Carolina state court, and does not consent to
suit in a federal court or in a court of another state. S.C.
Code Ann. § 15-78-20(e); see also Pennhurst State
School, 465 U.S. at n.9 (1984) (recognizing that a state
must expressly consent to suit in a federal district court).
Therefore, because the waiver of immunity extends only to
suit in state courts, Plaintiff cannot bring a claim pursuant
to the SCTCA in federal court, and his amendment is futile.
See, e.g., Gaskins v. South
Carolina, C/A No. 8:15-4456-JMC-JDA, 2016 WL 8677201, at
*3 (D.S.C. Jan. 8, 2016) (observing that a claim sought to be
filed initially in federal court under the South Carolina
Tort Claims Act “is not permitted in this federal court
because of the Eleventh Amendment”), adopted
by 2016 WL 3207855 (D.S.C. June 10, 2016); 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 by removing a case waives
immunity for claims in which it has consented to
suit in its own courts).
that Plaintiffs motion to amend is denied. Additionally, the
court RECOMMENDS that Plaintiffs request to
voluntarily withdraw his federal claims be granted and the
entire case be dismissed without prejudice. Any other pending
motions (ECF No. 21) should be terminated as moot.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina ...