United States District Court, D. South Carolina, Columbia Division
JULIAN D. OWENS, Plaintiff,
UNIVERSITY OF SOUTH CAROLINA; HARRIS PASTIDES; MICHAEL AMIRIDIS; LACY FORD; MURRAY MITCHELL; LILLIAN SMITH; KEN WATSON; ED FROGILLO; HEATHER BRANDT; KATRIN WASLSEMANN; JIM THRASHER; RUTH SAUNDERS; G. TOM CHANDLER; UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF CIVIL RIGHTS; SAMANTHA SHOFAR; DAVID HENSEL; UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF POST-SECONDARY EDUCATION; COUNCIL OF EDUCATION OF PUBLIC HEALTH; CHERYL ADDY; and SOUTH CAROLINA INSURANCE RESERVE FUND, Defendants.
ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS MITCHELL'S, SMITH'S, AND
WASLSEMANN'S MOTIONS TO DISMISS, AND SUMMARILY DISMISSING
THE AMENDED COMPLAINT
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
matter was filed as an action for alleged constitutional
violations and related claims. The Court has jurisdiction
under 28 U.S.C. § 1331 and § 1367. The matter is
before the Court for review of the second Report and
Recommendation (second Report) of the United States
Magistrate Judge suggesting the Court grant Defendants Murray
Mitchell's, Lillian Smith's, and Katrin
Waslsemann's motions to dismiss and summarily dismiss
Plaintiff Julian D. Owens's (Owens) amended complaint.
The second Report was made in accordance with 28 U.S.C.
§ 636 and Local Civil Rule 73.02 for the District of
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the first Report on April 6, 2018
recommending summary dismissal of all defendants except for
Defendants Mitchell, Smith, and Waslsemann (collectively,
Served Defendants). ECF No. 19. On the same day, the
Magistrate Judge entered an Order authorizing service of
process on the Served Defendants. ECF No. 20. The Served
Defendants filed motions to dismiss. ECF Nos. 31, 32, 45.
Owens filed a motion to amend his complaint. ECF No. 27. This
Court denied Owen's motion to amend as moot because Owens
was entitled to amend his complaint once, as a matter of
course, within 21 days after serving it. ECF No. 56. Owens
subsequently filed an amended complaint that supplements, but
in this instance does not take the place of, the original
complaint. ECF No. 58. The amended complaint rendered
the first Report's recommendation of summary dismissal
for all defendants except the Served Defendants moot.
26, 2018, the Magistrate Judge filed the second Report,
recommending Owens's amended complaint be summarily
dismissed and the Served Defendants' motions to dismiss
be granted. The Clerk of Court filed Owens's objections
to the second Report on September 17, 2018. ECF No. 92. On
the same day, the Clerk filed Owens's motion to seal. ECF
No. 90. The Served Defendants filed a joint response to
Owens's motion to seal and Owen's objections to the
second Report, and Owens filed a reply. ECF Nos. 94, 99. The
Clerk also filed Owens's additional responses in
opposition to the Served Defendants' motions to dismiss.
ECF Nos. 103-109. Finally, the Clerk filed Owens's motion
to edit docket text. ECF No. 111.
second Report recommends the Court summarily dismiss
Owens's amended complaint against all defendants except
for the Served Defendants and the University of South
Carolina, because the amended complaint fails to state a
claim upon which relief can be granted. The second Report
further suggests the Served Defendants' motions to
dismiss be granted because Owens's claims are barred by
the applicable statute of limitations. Finally, the second
Report recommends the claims against the University of South
Carolina be summarily dismissed because the University is
immune from suit under the Eleventh Amendment. Owens objects
to the recommendations in the Report and insists dismissal of
his complaint would be inappropriate.
28 U.S.C. § 636(b)(1), a district court is required to
conduct a de novo review of those portions of the Magistrate
Judge's Report to which a specific objection has been
made. The Court need not conduct a de novo review, however,
“when a party makes general and conclusory objections
that do not direct the court to a specific error in the
[Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
As provided above, however, the Court need not-and will
not-address any of Owens's arguments that fail to point
the Court to alleged specific errors the Magistrate Judge
made in the Report.
objections and his additional responses in opposition to the
motions to dismiss parallel arguments he made in his original
response to the Served Defendants' motion to dismiss.
They were thoroughly and correctly analyzed by the Magistrate
Judge. Thus, the Court need not repeat that discussion here.
Owens concedes in his objections the statute of limitations
had already run prior to the filing of this action with
respect to his claims against the Served Defendants. ECF No.
92 at 2. Nevertheless, Owens insists he is entitled to
equitable tolling. But, as the Magistrate Judge correctly
stated, the circumstances that justify equitable tolling are
claims against the Served Defendants are subject to South
Carolina's three-year statute of limitations for personal
injury actions set forth in S.C. Code § 15-3-530,
see Wallace v. Kato, 549 U.S. 384, 387 (2007)
(holding § 1983 claims are governed by the statute of
limitations for personal injury actions in the State in which
the cause of action arose). The Court agrees with the
Magistrate Judge's conclusion and holds Owens's
claims are barred by the statute of limitations. The Court
will overrule Owens' objections regarding the accrual of
his claim and equitable tolling.
Magistrate Judge also recommended the Court dismiss
Owens's claims against Defendant University of South
Carolina because it is immune from suit 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).
The Magistrate Judge further recommended Owens's federal
claims against the South Carolina Insurance Reserve Fund be
dismissed for the same reason. In response, Owens argues
“despite the apparent limitations of the Eleventh
Amendment, individuals may, under certain circumstances,
bring constitutional and statutory cases against
states”; “the state's sovereign immunity can
be waived”; and the Supreme Court believed the Eleventh
Amendment did not apply to suits in state courts. ECF No. 92
University of South Carolina is an arm of the State of South
Carolina. See Maryland Stadium Auth. v. Ellerbe Becket,
Inc., 407 F.3d 255 (4th Cir. 2005) (“Numerous
courts have decided whether public state universities are
‘arms of the state.' Almost universally, the answer
has been in the affirmative.”) Because the South
Carolina Insurance Reserve Fund functions as a governmental
insurance operation for the state and all premiums received
are deposited with the office of the state treasurer, it is
also an arm of the state. See Cromer v. Brown, 88
F.3d 1315, 1332 (4th Cir. 1996) (“the largely, if not
wholly, dispositive factor in determining whether an entity
is properly characterized as an arm of the state is whether
the state treasury will be liable for the judgment…if
the state treasury will not be affected by the judgment, we
consider other factors…[including] whether the state
possesses such control over the entity claiming Eleventh
Amendment immunity that it can legitimately be considered an
‘arm of the state'.”) (internal citations
objections regarding the limitations of the Eleventh
Amendment are misplaced. Although an arm of the state can be
sued in state court, a state must consent to suit in federal
court. South Carolina has not consented to this suit in
federal court. S.C. Code Ann. § 15-78-20(e). Therefore,
the Court will overrule Owens's objection as to the
University of South Carolina and Owens's federal claims
against the South Carolina Insurance Reserve Fund.
Magistrate Judge recommended that Owens's state claims
against the South Carolina Insurance Reserve Fund and all of
Owens's claims against the remaining defendants -
Pastides, Amiridis, Ford, Watson, Brandt, Thrasher, Saunders,
Chandler, Shofar, Hensel, Addy, Frogillo, the United States
Department of Education Office of Civil Rights, the United
States Department of Education Office of Post-Secondary
Education, and the Council of Education of Public Health - be
summarily dismissed for failure to state a claim upon which
relief can be granted. Owens's objections are nothing
more than a restatement of the facts alleged in his amended
complaint. Specifically, Owens fails to identify the
existence of any contractual relationship with any party
other than the University. He also fails to set forth facts
sufficient for the Court to find any of the above-named
defendants were personally involved in violating his civil
rights. Finally, Owens is unable to provide an adequate
factual basis for the Court to find he has stated a viable
tort claim against any of the above-named defendants. For all
these reasons, the ...