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Butler v. Pennington

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

April 16, 2019

Beattie I. Butler, Plaintiff,
D. Ashley Pennington, in his individual and official capacities, and Charleston County, Defendants.


          Bruce Howe Hendricks, United States District Judge.

         This matter is before the Court for review of the Report and Recommendation entered by United States Magistrate Judge Bristow Marchant on November 15, 2018 (“Report”). (ECF No. 151.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina, this case was referred to Magistrate Judge Marchant for pretrial handling. In his Report, the Magistrate Judge recommends that Defendant D. Ashley Pennington's (“Defendant” or “Pennington”) motion for summary judgment on his counterclaim for defamation (ECF No. 110), made in his individual capacity, be denied, and that Defendants Pennington, in his official capacity, and Charleston County's (collectively “Defendants”) motion for summary judgment on Plaintiff's claims (ECF No. 111) be granted in part and denied in part. (See ECF No. 151 at 51.) The Report sets forth in detail the relevant facts and standards of law, and the Court incorporates them here, summarizing below only in relevant part.[1]


         This case arises out of a series of disputes, over a span of years, between Plaintiff Beattie Butler (“Plaintiff” or “Butler”), who served as an Assistant Public Defender (“APD”) for Charleston County, and Defendant Pennington, who was at all times relevant to the amended complaint the Public Defender for the Ninth Circuit and Plaintiff's boss. Plaintiff joined the Public Defender's Office (“PD's Office”) in 2003 and over time became the most experienced litigator, eventually being designated “director of litigation” and later “chief litigator.” In essence, Plaintiff alleges that, beginning in 2007, he possessed knowledge of what he considered to be serious prosecutorial misconduct perpetrated by attorneys from the Ninth Circuit Solicitor's Office, but that Pennington prevented him from reporting the misconduct to the Office of Disciplinary Counsel (“ODC”). Plaintiff alleges that Defendant, at various times and in various ways, ordered him not to speak or convey in any manner to others comments that were critical of the Solicitor (Scarlett Wilson) or her office, especially regarding their ethics or honesty, without first obtaining Defendant's permission.

         Nevertheless, Plaintiff consulted with members of the Board of Directors of the South Carolina Association of Criminal Defense Lawyers (“SCACDL”) and assisted them in drafting a grievance against Solicitor Wilson, which action was contrary to Defendant's wishes and advice to the Board. Plaintiff subsequently began to question the ethical propriety of his own compliance with Defendant's previous orders not to disclose the alleged prosecutorial misconduct, and sought legal counsel. Ultimately, Plaintiff's ethics counsel sent a letter to Defendant challenging Defendant's directives about reporting/non-reporting ethical misconduct, and informing Defendant of Plaintiff's intent to “self-report” to the ODC his failure to disclose knowledge of misconduct as a result of those directives. Plaintiff later met with ODC staff to satisfy what he believed to be his reporting obligation.

         In April 2014, Plaintiff was diagnosed with cancer and immediately began an intensive treatment regimen including chemotherapy and radiation. Plaintiff alleges that although he requested FMLA leave due to his treatment and condition, he never received official notification from Charleston County's Human Resource Office or any other county office relating to this request. During the period that Plaintiff was undergoing this cancer treatment, his dispute with Defendant about reporting ethical breaches by the Solicitor's Office continued. Plaintiff alleges that, while he was compromised by his disease and treatment, Defendant sent him a list of detailed questions seeking information related to the Solicitor's Office's past alleged ethics violations and regarding the Defendant's prior orders to not file grievances about said violations. Plaintiff met with Defendant on September 29, 2014 to discuss these matters, at which time Defendant requested further written documentation of Plaintiff's medical condition and prognosis. On October 14, 2014, Defendant terminated Plaintiff's employment with the PD's Office.

         Plaintiff asserts the following claims in his amended complaint: First Amendment retaliation, prior restraint, and protected speech under 42 U.S.C. § 1983 (First Cause of Action); employment discrimination in violation of the Americans with Disabilities Act (“ADA”) (Second Cause of Action); Family and Medical Leave Act (“FMLA”)-interference with statutory rights (Third Cause of Action); defamation-libel and slander per se (Fourth Cause of Action); breach of implied contract (Fifth Cause of Action); denial of due process under § 1983 (Sixth Cause of Action); and breach of contract-intended third-party beneficiary (Seventh Cause of Action).[2] (ECF No. 20 ¶¶ 41-174.)

         Defendant Pennington, in his individual capacity, asserts a counterclaim for defamation and slander per se. (Second Am. Answer, ECF No. 41 at 23-28.) In the counterclaim, Defendant alleges that Plaintiff, after having been specifically instructed not to speak on behalf of the PD's Office without first receiving clearance from Defendant, responded to press inquiries from the Post and Courier regarding alleged misconduct by the Solicitor's Office in direct violation of Defendant's instructions. Defendant further alleges that Plaintiff's constant criticism of the Solicitor's Office reflected poorly on the PD's Office, fostered division within that office, and was generally counterproductive. According to Defendant, Plaintiff held continuing personal animosity against Solicitor Wilson for having filed a professional grievance against Plaintiff several years earlier.

         Defendant avers that Plaintiff told numerous attorneys the falsehood that Defendant ordered Plaintiff not to file a grievance against the Solicitor, thereby inferring that Defendant was unethically “covering for” or protecting the Solicitor at the expense of the best interests of the PD's clients and the community. Defendant identifies nine individuals to whom Plaintiff made this allegedly false statement.

         Moreover, Defendant asserts that Plaintiff repeated this false statement to South Carolina Lawyer's Weekly reporter Phillip Bantz (“Bantz”) in April 2014, and that the false statement was published statewide by the Lawyer's Weekly to members of the South Carolina Bar and the broader community. Defendant contends that the statement that he had ordered Plaintiff not to file a grievance against the Solicitor, and the repetition of the statement, was both false and published by Plaintiff with the intent of showing Defendant was unethical and unfit for his profession. Defendant alleges that when he asked Plaintiff in September 2014 to provide the date, time, and location of any such alleged orders, Plaintiff was unable to provide the information.

         Finally, Defendant alleges that he terminated Plaintiff's employment due to Plaintiff's false accusations against Defendant, Plaintiff's insubordinate and divisive statements and conduct as a senior staff member directed to subordinate staff and third parties, and Plaintiff's inability to control his animosity toward other lawyers and act constructively for the welfare of his clients in coordination with his employer, the PD's Office.

         On April 13, 2018, Defendants filed a motion for summary judgment on Plaintiff's claims, and Pennington, in his individual capacity, filed a motion for summary judgment on his counterclaim. (ECF Nos. 110 & 111.) The motions were fully briefed. (ECF Nos. 115, 116, 121, 122, 124, 127.) The Magistrate Judge held a hearing on, inter alia, the motions for summary judgment. (ECF Nos. 131 & 132.) The case was reassigned to the undersigned on September 10, 2018. (ECF No. 137.) On November 15, 2018, the Magistrate Judge issued his Report. (ECF No. 151.) The parties filed timely objections and replies. (ECF No. 154, 155, 156, 157.) The matter is ripe for consideration and the Court now makes the following ruling.


         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In 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, 315 (4th Cir. 2005).


         A. Defendant Pennington's Defamation Counterclaim

         The Magistrate Judge concluded that Defendant Pennington's motion for summary judgment on his defamation counterclaim should be denied. The Report notes that Defendant offered evidence of comments made by Plaintiff which are arguably actionable under a defamation theory, including that Defendant was unable to perform his job, that no one would want him representing them, that his legal skills were lacking, that he was incompetent and a poor administrator, that he was unable to perform his job, that he was unwilling as the Public Defender “to really fight with the Solicitor's office, ” and that he would not permit Plaintiff to file grievances. (ECF No. 151 at 12 (citing deposition excerpts).) However, the Magistrate Judge found that there is a clear factual dispute between Plaintiff and Defendant about whether Defendant ordered Plaintiff not to file a grievance, which is a question of fact for the jury. (Id. at 13.) Moreover, the Magistrate Judge concluded that genuine issues of material fact remain with respect to whether the statements at issue were mere opinion and did not convey defamatory meaning, or were indeed defamatory in nature, and/or were made with malice and truly damaged Defendant's reputation. (Id. at 14.) Accordingly, the Magistrate Judge reasoned that the facts and evidence presented do not establish defamation as a matter of law, and Defendant is not entitled to summary judgment on his counterclaim. (Id.)

         Though he agrees with the Magistrate Judge's conclusion that Defendant is not entitled to summary judgment on the defamation counterclaim, Plaintiff objects “on the basis of lack of federal subject matter jurisdiction” to consideration of “certain statements referenced in the [Report's] discussion of Defendant's counterclaim.” (ECF No. 155 at 7.) The Court finds that the factual questions surrounding the statements relevant to Defendant's counterclaim fall within the Court's supplemental jurisdiction. The objection is without merit and is overruled.

         The Court agrees with the sound reasoning and conclusions of the Magistrate Judge pertaining to the defamation counterclaim, and finds no error therein. Accordingly, the motion for summary judgment on the counterclaim is denied.

         B. Plaintiff's First Amendment Section 1983 Claim

         With respect to Plaintiff's § 1983 claim alleging violation of his rights under the First Amendment to the U.S. Constitution (First Cause of Action), the Magistrate Judge first concluded that Defendant Pennington, in his official capacity, is entitled to dismissal as a party defendant to Plaintiff's First Amendment claim because he enjoys Eleventh Amendment immunity from any suit for damages under § 1983. (ECF No. 151 at 15-17.) Plaintiff objects to this conclusion in part, arguing that, to the extent his First Amendment claim seeks injunctive relief-namely, reinstatement for a retaliatory firing-Eleventh Amendment immunity does not apply, and Defendant Pennington, in his official capacity, should not be fully dismissed as a party defendant to the First Cause of Action. (ECF No. 155 at 3-4.) Plaintiff is correct and the objection is sustained. The U.S. Supreme Court has stated, “[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989) (emphasis added) (citations and quotation marks omitted). Accordingly, Defendants' motion for summary judgment is granted insofar as it seeks dismissal of Defendant Pennington, in his official capacity, from the First Cause of Action for damages, but denied insofar as it seeks dismissal of Defendant Pennington, in his official capacity, from the First Cause of Action for injunctive relief. (See ECF No. 20 ¶ 57 (seeking reinstatement and other injunctive relief as remedfies for alleged First Amendment violations).)

         The Magistrate Judge next found that Plaintiff has presented no evidence of any unconstitutional policy adopted and promulgated by Defendant Charleston County or its officers-in this case Pennington-so as to subject Charleston County to liability on the First Amendment claim. (ECF No. 151 at 17-18.) The Magistrate Judge stated, “Plaintiff has failed to point to any ordinance or policy of Charleston County that Pennington would have been following by engaging in the improper conduct alleged, and the county may only be liable for damages if the execution of a policy or custom of the county itself is what resulted in the alleged injury.” (Id. at 18 (emphasis added) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978); Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984); Leatherman v. Tarrant County Narcotics Intelligence & Coordination, 507 U.S. 163, 166 (1993)).) The Report further notes that, as the Ninth Circuit Public Defender, Pennington is considered to be an employee of the State of South Carolina, not Charleston County. (Id.) Thus, the Magistrate Judge concluded that Defendant Charleston County is entitled to dismissal as a party defendant to Plaintiff's First Cause of Action. (Id. at 19.)

         Plaintiff objects to this conclusion, arguing that Defendant Pennington is the “final policy maker” with respect to hiring, firing, and directing the duties of PD's Office employees, who are all employees of Charleston County. (ECF No. 155 at 5.) He further asserts that, irrespective of Pennington being “labelled a ‘state employee, '” Pennington is acting for, and on behalf of, Charleston County when making hiring and firing decisions regarding PD's Office personnel. (Id. at 6.) However, this objection misconstrues both what it means to be a “final policy maker” and the nature of the “policy” being challenged in the First Amendment claim. “‘[P]olicymaking authority' implies authority to set and implement general goals and programs of municipal government, as opposed to discretionary authority in purely operational aspects of government.” Spell v. McDaniel,824 F.2d 1380, 1386 (4th Cir. 1987) (citations omitted). Pennington's decision to terminate Plaintiff was operational and discretionary in nature, and Plaintiff has not shown that Pennington was a “final policy maker” in this regard. Moreover, the “policy” being challenged in the First Amendment claim is Pennington's alleged order to Plaintiff and other PD's Office personnel not to report ethical misconduct without first receiving his approval. Plaintiff's firing is incidental to this “policy, ” ...

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