United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gorgel United States District Court Judge
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 10) recommending
that the motion to dismiss brought by Defendants Isle of
Palms Police Department, Mayor Carroll and Acting Chief Usry
("Moving Defendants") (Dkt. No. 4) be granted. For
the reasons set forth below, the Court adopts the R & R
as the Order of the Court and grants Moving Defendants'
motion to dismiss.
brings claims for violation of his constitutional rights
under 42 U.S.C. § 1983 and state law claims for false
imprisonment, negligence/gross negligence,
slander/defamation, and assault and battery. (Dkt. No. 1-1.)
His claims arise from an alleged incident in which he was
arrested by the Isle of Palms Police Department on suspicion
of breaking into a car. Plaintiff alleges that he was
detained for approximately two hours, during which he was
restrained and laid down in the back of the patrol car,
causing him physical discomfort, including due to his being
90 years old, resulting in his medical alert device being
activated, but ignored, and medical responders being called
to assist him.
Review of R & R
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight and the responsibility to make a final
determination remains with the Court. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where there are
no objections to the R & R, the Court reviews the R &
R to "only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Fed.R.Civ.P. 72 advisory
committee's note; see also Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983) ("In the absence of
objection ... we do not believe that it requires any
Motion to Dismiss Pursuant to Rule 12(b)(6)
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." A motion to
dismiss tests the legal sufficiency of the complaint and
"does not resolve contests surrounding the facts, the
merits of the claim, or the applicability of defenses. . . .
Our inquiry then is limited to whether the allegations
constitute a short and plain statement of the claim showing
that the pleader is entitled to relief." Republican
Parly of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (internal quotation marks and citation omitted). On a
Rule 12(b)(6) motion, the Court is obligated to "assume
the truth of all facts alleged in the complaint and the
existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts., Inc.
v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th
Cir. 2000). Although the Court must accept the facts in a
light most favorable to the Plaintiff, the Court "need
not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id. Generally, to
survive a motion to dismiss the complaint must provide enough
facts to '"state a claim to relief that is plausible
on its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Fed. R. Civ.
Pro. 8(a)(2). Although the requirement of plausibility does
not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that
a defendant has acted unlawfully." Iqbal, 556
U.S. at 678. A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. Discussion.
Court finds that the Magistrate Judge ably addressed the
issues and correctly concluded that the Moving Defendants
should be dismissed from this action. As to Defendant Isle of
Palms Police Department, to state a claim pursuant to 42
U.S.C. § 1983, Plaintiff must allege that a right
secured by the federal constitution or laws was violated by a
"person" acting under the color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988). It is
well settled that a municipal police department is not a
"person" amendable to suit under § 1983.
See, e.g., Hunt v. West Columbia Police Dept., No.
3:14-70-MGL, 2015 WL 4274827, at *2 (D.S.C. July 14, 2015)
("A local police department, is an instrumentality of a
municipality-not an independent entity-and thus is not a
'person' within the meaning of § 1983.").
Regarding Plaintiffs state law claims, the South Carolina
Tort Claims Act is the exclusive civil remedy available
against a governmental entity in the state or its employees.
S.C. Code Ann. § 15-78-30(d), (h).
Defendants Mayor Carroll and Acting Chief Ursy, Plaintiffs
federal claim is subject to dismissal because a claim brought
under § 1983 against an individual in his or her
official capacity is a claim against the entity. See
Kentucky v. Graham, 473 U.S. 159, 166 (1985)
("Thus, while an award of damages against an official in
his personal capacity can be executed only against the
official's personal assets, a plaintiff seeking to
recover on a damages judgment in an official-capacity suit
must look to the government entity itself."). As with
Defendant Isle of Palms Police Department, Plaintiffs tort
claims against Defendants Carroll and Usry are likewise
subject to dismissal because the South Carolina Tort Claims
Act mandates that "only the entity employing the
employee whose act gives rise to the claim may be sued."
S.C. Code Ann. 15-78-70(c).
Plaintiff neither filed a response in opposition to the
Moving Defendants' motion to dismiss nor objected to the
R & R. Plaintiffs lack of response indicates his intent
not to continue prosecuting his claims and, therefore,
subjects the claims to sua sponte dismissal.
See Fed. R. Civ. P. 41(b) ("If the plaintiff
fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any
claim against it."); Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31 (1962) ("The authority of a court
to dismiss sua sponte for lack of prosecution has
generally been considered an 'inherent power,'
governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so
as to achieve the orderly and expeditious disposition of
these reasons, the Magistrate Judge correctly determined that
the Moving Defendants' ...