United States District Court, D. South Carolina, Florence Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
Linda Hanna (Mrs. Hanna) and Gary Hanna (Mr. Hanna)
(collectively, the Hannas) filed this lawsuit against
Defendant Dillon Police Department (Dillon P.D.) and Corporal
Brian Genwright (Genwright) (collectively, Defendants). They
brought their claims against Genwright both in his individual
and official capacity as an employee of the Dillon P.D.
Hanna makes section 1983 claims against Defendants of
unlawful arrest, unlawful detention, and excessive force, and
state law claims against Genwright of assault, battery, and
intentional infliction of emotional distress. In addition,
Mr. Hanna asserts a claim for loss of consortium against
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting Defendants' motion for summary judgment be
granted in part and denied in part. Specifically, the
Magistrate Judge suggests Defendants' motion be granted
as to: (1) Mrs. Hanna's section 1983 claim for unlawful
arrest against Defendants, (2) all of her other section 1983
claims against the Dillon P.D., (3) her state law claim for
intentional infliction of emotional distress against
Genwright, and (3) Mr. Hanna's claim for loss of
consortium against Defendants.
Magistrate Judge recommends Defendants' motion for
summary judgment be denied, however, with respect to: (1)
Mrs. Hanna's section 1983 claims against Genwright for
unlawful detention and excessive force, as well as (2) her
state law claims against him for assault and battery. The
Magistrate Judge filed the Report in accordance with 28
U.S.C. § 636 and Local Civil Rule 73.02 for the District
of South Carolina.
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 Report on June 20, 2019,
Defendants filed their objections on July 3, 2019, and the
Hannas filed their reply to Defendants' objections on
July 17, 2019. The Court has carefully reviewed
Defendants' objections, but holds them to be without
merit. It will therefore enter judgment accordingly.
Hannas failed to file any objections to the Magistrate
Judge's suggestion the Court grant summary judgment on
certain of their claims. “[I]n the absence of a timely
filed objection [to those portions of the Report, the 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)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Moreover, a failure to object waives appellate review.
Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.
to the Complaint, “[o]n or about December 9, 2015,
[Mrs.] Hanna was operating in her capacity as a
transportation supervisor for Dillon County School District
Four when she boarded a school bus that was stopped for a
fight between students.” Complaint ¶ 10.
“Genwright was operating in his capacity as an officer
with Defendant Dillon [P.D.] when he was dispatched to the
scene as a result of the fight between students.”
Id. ¶ 11 “Genwright entered the school
bus at the same time as [Mrs.] Hanna.” Id.
¶ 12. “Genwright attempted to release a student on
the school bus to a gentleman standing outside the bus after
[Mrs.] Hanna said she could not release the child to anyone
without the child being signed out at school, per Dillon
County School policy.” Id. ¶ 13.
“[Mrs.] Hanna further explained to . . . Genwright she
had not verified the gentleman outside the bus was the
student's custodial parent.” Id. ¶
response to [Mrs.] Hanna's . . . concern for the
student's safety and the district policies, . . .
Genwright, . . . handcuffed [Mrs.] Hanna and pulled her down
the isle of the school bus.” Id. ¶ 15.
“Once the student was off the bus, . . . Genwright
removed the handcuffs from [her].” Id. ¶
16. “[Mrs.] Hanna was never charged with any
crime.” Id. ¶ 17.
Defendants contend the Magistrate Judge erred in suggesting
the Court deny their motion for summary judgment on
Hanna's claims against Genwright for assault and battery.
The Court disagrees.
contend “Genwright was clearly acting within the course
and scope of his employment with the City of Dillon
[P.D.].” Objections 2. They argue “that his
intention in handcuffing [Mrs. Hanna] was to maintain control
and prevent the situation from escalating.”
Id. According to Defendants, Mrs. Hanna “has
come forward with no evidence . . . Genwright's actions
were done with the intent to cause her harm.”
Hannas, however, state “the actions of Defendant
Genwright were committed with both actual malice and intent
to harm because . . . Genwright knew or should have known
that he had no foundation to violate [Mrs.] Hanna's
rights by detaining her and in doing so committing an assault
and battery with the intent to harm and/or with actual
malice.” Hanna's Reply 4. According to the Hannas,
“[w]hether or not the acts were committed with actual
malice and/or intent to harm is a genuine issue of material
South Carolina Tort Claims Act provides to the State, its
political subdivisions, and employees, while acting within
the scope of official duty, immunity from liability for any
tort, except as waived therein. S.C. Code Ann. §
15-78-20(b). Section 15-78-70(a) states that “[a]n
employee of a governmental entity who commits a tort while
acting within the scope of his official duty is not liable
therefore except as expressly provided for in subsection
(b).” As per subsection (b), an employee does not have
immunity from suit, “if it is proved that the
employee's conduct was not within the scope of ...