United States District Court, D. South Carolina, Charleston Division
Brit K. Adams, Plaintiff,
City of Georgetown; Georgetown City Police Department; Paul Gardner; Jack Scoville, Jr.; Robert Small; and Suzanne Abed-El-Latif, Defendants.
Richard Mark Gerget United States District Court Judge
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 55) recommending
that the Court grant in part, deny in part Defendant's
motion for judgment on the pleadings. (Dkt. No. 40.) For the
reasons set forth below, the Court adopts in part and rejects
in part the R & R and dismisses part of Plaintiff s
is apro se litigant claiming pursuant to 42 U.S.C.
§ 1981 and the Whistleblower Protection Act, 5 U.S.C.
§ 2302(b)(8). Plaintiff alleges that Defendants, City of
Georgetown, Georgetown Police Department, Paul Gardner, Jack
Scoville, Jr., Robert Small, and Suzanne Abed-El-Latif
terminated his employment with the Georgetown Police
Department in retaliation for informing his fellow African
American colleagues to file a charge of discrimination with
the Equal Employment Opportunity Commission
("EEOC"). (Dkt. No. 13 at 3, 8-9.) In addition, the
Complaint suggests that Plaintiffs termination from the
Georgetown Police Department was also caused by a false
accusation of excessive force. (Id. at 8-9.) On
August 15, 2018, the Magistrate Judge issued a proper form
order notifying Plaintiff the Complaint presented only a few
conclusory sentences and failed to state a claim. (Dkt. No.
7.) The Court gave Plaintiff time to amend the pleadings so
as to state a claim. (Id.) Subsequently, Plaintiff
filed an amended complaint containing similar allegations.
(Dkt. No. 13.) On March 22, 2019, Defendants filed a motion
for judgment on the pleadings to dismiss Plaintiffs complaint
entirely. (Dkt. No. 39.) On May 15, 2019, Plaintiff filed a
response in opposition to Defendant's motion for judgment
on the pleadings (Dkt. No. 46) followed by a supplemental
response on June 21, 2019. (Dkt. No. 54.)
Report and Recommendation
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. See, e.g., 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. In the absence of objections to the R
& R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation.
See, e.g., Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983) ("In the absence of objection ... we do not
believe that it requires any explanation."). Plaintiff
has not filed any objections in this case, and the Court
reviews the R & R for clear error.
Whistleblower Protection Act was enacted to protect federal
employees who disclose government illegality, waste, and
corruption. McKinney v. Reich, No. CIV. A.
5:95-0160, 1996 WL 498187, at *2 (S.D. W.Va. Mar. 25, 1996)
(citing 5 U.S.C. § 1201). Plaintiff alleges he was
employed as a police officer with the Georgetown Police
Department during the time frame relevant to this lawsuit.
(Dkt. No. 13 at 8.) As the Plaintiff was employed by the City
and not the federal government, he is not protected by the
WPA. The Magistrate Judge correctly ruled that Plaintiffs
first cause of action fails as a matter of law.
42 U.S.C. § 1981 Claims
careful review of the Complaint and the record, the Court
finds the Magistrate Judge ably addressed Plaintiffs §
1981 claim. Section 1981 provides that "[a]ll persons .
. . shall have the same right... to make and enforce
contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white
citizens." 42 U.S.C. § 1981. The Supreme Court has
held that "express 'action at law' provided by
§ 1983 for the 'deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws,' provides the exclusive federal damages remedy for
the violation of the rights guaranteed by § 1981 when
the claim is pressed against a state actor." Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989).
order to state a claim pursuant to 42 U.S.C. § 1983, a
plaintiff must allege: (1) that he or she has been deprived
of a right, privilege, or immunity secured by the
Constitution or laws of the United States and (2) that the
conduct complained of was committed by a person acting under
color of state law. Dowe v. Total Action Against Poverty
in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998).
The Magistrate Judge correctly concluded Plaintiffs amended
complaint as written, alleges § 1981 violations against
state actors, but fails to expressly raise any claims for
relief under § 1983. The amended complaint does not
mention Defendant Abed-El-Latif or connect her action to the
alleged retaliation against Plaintiff. Plaintiff generally
alleges Defendant Small made a derogatory statement about
another African American police officer, yet the amended
complaint fails to explain how this statement is tied to
Plaintiffs retaliation claim under § 1981. (Dkt. No. 13
at 9.) As such, the allegations standing alone do not state a
claim under § 1983. See Former v. Coll. of
Charleston, No. 2:15-CV-4762-RMG, 2017 WL 528201, at *2
(D.S.C. Feb. 8, 2017).
Plaintiffs allegations against Defendant Scoville and
Defendant Gardner, the Court finds the Magistrate Judge
correctly concluded that these claims as alleged fail to
state a claim for relief. Plaintiff alleges Defendants
Scoville and Gardner retaliated against him by terminating
Plaintiffs employment with the Georgetown Police Department.
(Dkt. No. 13 at 8.) Plaintiff alleges the reason for his
termination is because he informed other African American
officers of their right to file a charge of discrimination
with the EEOC for failure-to-promote. (Dkt. No. 13 at 8.)
Retaliation claims under § 1983 are analyzed under a
burden-shifting framework. First Plaintiff must establish a
prima facie case of retaliation by alleging: (1) he or she
engaged in a protected activity; (2) that an adverse
employment action was taken against him or her; and (3) that
there was a causal connection between the first two elements.
Dowe, 145 F.3d at 656. After plaintiff has
established a prima facie claim, Defendant has the burden of
demonstrating a "legitimate, non-discriminatory reason