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Adams v. City of Georgetown

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

October 10, 2019

Brit K. Adams, Plaintiff,
v.
City of Georgetown; Georgetown City Police Department; Paul Gardner; Jack Scoville, Jr.; Robert Small; and Suzanne Abed-El-Latif, Defendants.

          ORDER

          Richard Mark Gerget United States District Court Judge

         Before 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 complaint.

         I. Background

         Plaintiff 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.)

         II. Legal Standard

         A. Report and Recommendation

          The 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.

         III. Discussion

         A. WPA Claims

         The 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.

         B. 42 U.S.C. § 1981 Claims

         After a 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).

         In 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).

         Regarding 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 ...


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