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Hoffman v. Tanner

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

December 3, 2018

Heather C. Hoffman, Plaintiff,
P. J. Tanner, Chief Deputy Michael Hatfield, Staff Sergeant Eric Calendine, Corporal Andrew Calore, J. Edward Allen, Stephanie Smart-Gittings, Duffie Stone, Dr. Susan Erin Presnell, Ms. Catherine E. Heigel, Jerri Ann Roseneau, AT&T, and John Does x 20, Defendants.



         This action has been filed by the Plaintiff, pro se, asserting various claims against the named Defendants. Plaintiff's allegations in her fifty-eight (58) page Complaint and one hundred thirty-five (135) page attachment primarily center on events surrounding the gunshot death of her adult daughter, Ashley Paskiewicz. The named Defendants are all alleged to have been involved with Paskewicz and/or the investigation of her death, which was ruled a suicide. However, Plaintiff alleges, inter alia, that her daughter's death was a homicide.

         The County employee Defendants (along with Beaufort County Sheriff P. J. Tanner and the named Sheriff's deputies, who are state officials) filed a motion to dismiss pursuant to Rule 12, Fed.R.Civ.P., on August 27, 2018. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on August 28, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for her to file an adequate response. Plaintiff was specifically advised that if she failed to file an adequate response, the Defendants' motion may be granted. Plaintiff thereafter filed a memorandum in opposition, with attached supporting documents, on October 4, 2018. See Court Docket No. 46.

         These Defendants' motion is now before the Court for disposition. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.[1]

         Allegations of Plaintiff's Complaint as relate to these Defendants

         Plaintiff alleges that she last saw her daughter on May 27, 2017, when she stopped by Plaintiff's apartment to pick up a court document from the Beaufort County Magistrate Court. Plaintiff alleges that this court document stated that her daughter had been found not guilty of charges filed against her relating to an incident that had occurred on December 26, 2015, and that all records relating to the charges and her daughter's arrest were to be destroyed. Plaintiff alleges that the following day, her daughter went to her boyfriend's (Chris Moscola) boat, where she was served alcohol even though Moscola knew that Paskiewicz was an alcoholic. Plaintiff alleges that she thereafter spoke with her daughter by telephone on June 5, 2017, at which time her daughter was upbeat and excited about an upcoming trip she was taking. The following day (June 6, 2017) Plaintiff alleges she received two text messages from her daughter, but that when she responded by both calling and texting her daughter, she never received a response. Plaintiff alleges that she also sent a message to Moscola, but that he also did not respond. Plaintiff then alleges that:

On and between June 6, 2017, continuing through the present time all defendants individually, jointly, and collectively, conspired, directly or indirectly, in some fundamental official capacity, thereby misusing and abusing authoritative power they possess by virtue of state law, to create and affirmatively act in furtherance of a fabricated scenario of events concocted to mislead, deceive and conceal the truth regarding Ashley Paskiewicz's death on June 6, 2017. In so doing, all individual defendants knowingly, deliberately and maliciously conspired to deprive [Plaintiff] of clearly established statutory and constitutional protected rights under the First, Fourth, Sixth and Fourteenth Amendments as secured by the United States Constitution”.

         Complaint, ¶ 10.

         Plaintiff alleges that on June 6, 2017, the Defendants Calendine and Calore (both Beaufort County Sheriff's Deputies) and Allen (the Beaufort County Coroner) came to her residence to inform her that her daughter had committed suicide by shooting herself in the back yard of Mascola's home. Plaintiff then proceeds to set forth several argument for why her daughter's death should not have been ruled a suicide, and alleges that the Defendants engaged in a conspiracy under color of law to fraudulently conceal the truth about her daughter's death. Plaintiff alleges that she told the officers that the scene must have been staged, and further complains that the officers refused to take her to the scene or to view the body at that time. Plaintiff then goes on, over the course of several paragraphs, to complain about how the investigation of her daughter's death was conducted, including that Coroner Allen's listing the time of death on the death certificate as being at noon was a violation of South Carolina law because it set forth false or misleading information on a court record. Plaintiff further alleges that Calendine handed her the wrong business card, which Plaintiff believes “was an intentional act and not an oversight because the Beaufort County Sheriff's Department and the coroner fabricated a false scenario of events concerning Ashley's death on June 6, 2017, and lied about conducting an investigation”. Id., p. 36.

         Plaintiff alleges that on June 8, 2017 she spoke with both Calendine and Allen asking where her daughter had been shot, but that both of these Defendants refused to answer her questions. Plaintiff further alleges that these Defendants failed to properly secure he daughter's personal property on June 6, 2017, as they were required to do. Plaintiff alleges that this failure resulted in her daughter's property not passing through a proper chain of custody in violation of her statutory and constitutional rights. Plaintiff further complains about the demeanor displayed by the investigating officers during the investigative process, and that Calendine told her that Mascola was not considered a suspect or person of interest in the investigation, when he should have been. Plaintiff further alleges that her constitutional rights were violated because the officers refused to give her the name of the medical examiner at MUSC who had performed her daughter's autopsy, even though she had a legal and statutory right to this information.

         Plaintiff alleges that on June 30, 2017, she discovered that her daughter's criminal charges were posted on the Beaufort County Fourteenth Judicial Circuit Court Public Website Index, even though (Plaintiff alleges) those charges were supposed to be “destroyed and/or non-existent”, and that the maintenance of these charges on the website was therefore “in direct contempt” of the Beaufort County Magistrate Court Order of May 18, 2017, which required these charges to be removed from the public records. Id., ¶ ¶ 92-93. Plaintiff alleges that this was an egregious violation of her daughter's constitutional rights, and demonstrates malice, bias and prejudice by Beaufort County public officials against her daughter and her family. Plaintiff alleges she emailed the Chief Public Defender for Beaufort County requesting an explanation, with the Defendant Chief Deputy Michael Hatfield copied on the email. Id., ¶ ¶ 95-96. Plaintiff alleges she also separately emailed Hatfield on July 3, 2017 complaining about how the investigation into her daughter's death was being conducted. Id., ¶ 97. Plaintiff alleges that on August 17, 2017, she sent a certified request to the Defendant Sheriff Tanner requesting copies of the body cam recordings worn by his agents. Id., ¶ 112. Plaintiff alleges she received a response from Hatfield advising that there was no camera footage because the body worn cameras had not been activated at the scene, which Plaintiff alleges was a violation of state statute. Plaintiff alleges that on September 27, 2017, she went in person to the Sheriff's Department requesting copies of documents that allowed the Defendants to retain her daughter's phone, and that when it was suggested that she meet with either Calendine or Calore, she found it “egregious” that Sheriff Tanner refused to himself meet with her and to take responsibility and accountability for the actions of his department. Plaintiff further complains that the Sheriff's Office would not give her a copy of the search warrant allowing for her daughter's phone to be searched, and that the Sheriff's Department is unlawfully retaining her daughter's Apple iPhone. Finally, Plaintiff alleges that on January 23, 2018, she received a voice mail message from Calore informing her that he had closed the investigation and that Plaintiff could pick up a copy of the report from the front desk at the Sheriff's Department. Id., ¶ 152.

         Plaintiff first asserts a claim for conspiracy pursuant to 42 U.S.C. § 1983, alleging that the Defendants conspired to misuse and abuse their authoritative power to fabricate a narrative of events concerning her daughter's death with the intent to mislead, deceive, and fraudulently conceal the truth about the circumstances involving her daughter's death, all in violation of her constitutional rights (Count I). Plaintiff also alleges that the Defendants conducted an unlawful and unconstitutional search and seizure of her daughter's cell phone (which Plaintiff alleges was actually her cell phone) for ten months in violation of her constitutional rights (Count II), that officials with the Beaufort County Magistrate Court and the Beaufort County Sheriff's Department (among others) conspired to concoct and/or maintain a false/perjured charge and conviction on her daughter's court record in contempt of the Beaufort County Magistrate Court of May 8, 2017, in violation of her constitutional rights (Count III), that the Defendants deprived her of her constitutional right of access to the courts for a redress of her claims, and that by concocting the fabricated scenario to fraudulently conceal from the Plaintiff the truth about her daughter's death, Plaintiff was deprived of her statutory and constitutional claims against “culpable parties” (Count IV), that the individual Defendants violated her constitutional rights because they either knew or should have known of the continuing civil rights violations that were occurring and stood by without intervening to prevent and/or correct the official misconduct (Count V), and that the Defendants subjected her to intentional infliction of emotional distress[2] (Count VII).[3]

         Plaintiff seeks injunctive relief against the Defendants, to include an order from this Court that a proper investigation be conducted into her daughter's death, as well as enjoining the Defendants from continuing to display her daughters arrest records on the public website index of the Fourteenth Judicial Circuit Court. Plaintiff also wants this Court issue subpoenas to any and all health care providers involved in her daughter's medical care and treatment between 2014 and 2017. See generally, Plaintiff's Complaint, with attached Exhibits.[4]


         These Defendants seek dismissal of all of Plaintiff s claims asserted against them. When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief “on its face”. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Vogt v. Greenmarine Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y. 2004) [“[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable.”]. Further, the Federal Court is also charged with liberally construing a complaint filed by a pro se litigant (such as the Plaintiff here) to allow for the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972).

         Even so, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the pleadings in this case and the arguments of the parties, and in compliance with the requirements of Rule 12 and the liberal construction given to pro se pleadings, the undersigned finds for the reasons set forth hereinbelow that the Defendants' motions should be granted, and that they should be dismissed as party Defendants in this case.

         Defendant Jerri Ann Roseneau

         Roseneau is alleged in the Complaint to be the Beaufort County Magistrate Court Clerk. However, Defendants assert in their motion to dismiss that Roseneau is actually the Circuit Court Clerk for Beaufort County, a fact confirmed by the Beaufort County Court website. See (last visited November 27, 2018).[5] Defendants further assert in their motion that Roseneau has no control or authority over the Magistrate's Court. However, there is no evidence before the Court as part of the Defendants' Rule 12 motion to establish that fact, and in any event Plaintiff's claim as it relates to Roseneau is that she conspired with officials from the Beaufort County Sheriff's Department to maintain on the court website what Plaintiff contends is a false or perjured charge and conviction against her daughter even though there was a Magistrate Court order that that record was to be expunged. It is unclear whether Roseneau would be the official responsible for implementing any court expungement orders, but Plaintiff alleges that she was, and as a county official, Roseneau is subject to suit under § 1983 for violating an individual's constitutional rights. See McCubbin v. Weber County, Nos. 15-132 and 15-133, 2017 WL 3394593 at * 12 (D.Utah Aug. 7, 2017) [County agent may be sued in official capacity for injunctive and declaratory relief].

         Plaintiff seeks only injunctive relief in this case, and therefore Plaintiff's claim against Roseneau (as well as the Sheriff's Department Defendants) relating to this claim is against them in their official capacities. See Golub v. Goodes, No. 09-380, 2010 WL 3702614 at * 3 (S.D.Ind. Sept. 10, 2010)[“[A] claim for injunctive relief cannot be brought against government employees in their individual capacities . . . because it is only in their official capacities that injunctive relief can be granted.”]. Even so, § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also City of Monterey v. Del Monte Dunes at Monterey, Ltd.,526 U.S. 687, 707 (1999) [A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief."]. To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins,487 U.S. 42, 48 (1988). Here, Plaintiff's claim against Roseneau fails because she has failed to set forth a “plausible claim” in her Complaint that ...

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