United States District Court, D. South Carolina
Howe Hendricks United States District Judge
matter is before the Court for review of the Report and
Recommendation of United States Magistrate Judge Bristow
Marchant, made in accordance with 28 U.S.C. § 636(b) and
Local Rule 73.02 for the District of South Carolina.
Plaintiff Lamont Simmons, through his attorney, filed a
complaint against Defendants Charleston County Sheriff's
Office (“CCSO”) and police officer Joseph Stokes
asserting a claim for excessive force in violation of his
constitutional rights pursuant to 42 U.S.C. § 1983, and
claims for battery, assault, and negligence. (ECF No. 1).
Defendants moved to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) on the bases of Eleventh
Amendment immunity and immunity under the South Carolina Tort
Claims Act (“SCTCA”) as to all causes of action
other than the § 1983 claim against Defendant Stokes in
his individual capacity. (ECF Nos. 8, 8-1). On September 26,
2019, the Magistrate Judge issued a Report and Recommendation
recommending that this Court grant the motion and dismiss all
but the first cause of action. (ECF No. 18).
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with
this Court. See 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). The Court may
also receive further evidence or recommit the matter to the
Magistrate Judge with instructions. Id. The Court is
charged with making a de novo determination of those
portions of the Report and Recommendation to which specific
objections are made.
filed no objections and the time for doing so expired on
October 10, 2019. In the absence of objections to the
Magistrate Judge's Report and Recommendation, this Court
is not required to provide an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). Indeed, “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) (quoting Fed.R.Civ.P. 72 and
advisory committee's note).
because no objections have been filed, the Court has reviewed
the Magistrate Judge's findings and recommendations for
clear error. The Court agrees with the Magistrate Judge that
the second and third causes of action should be dismissed on
the basis of sovereign immunity and that the sixth cause of
action should be dismissed on the basis of SCTCA immunity.
However, the Court finds that the state law claims for
assault and battery asserted in the fourth and fifth causes
of action should proceed.
Magistrate Judge explained, the SCTCA provides the
“exclusive remedy for any tort committed by an employee
of a governmental entity.” S.C. Code § 15-78-
70(a). Under the Act, an employee of a governmental entity
who commits a tort while acting within the scope of his
official duty is immune from liability for that tort;
however, an employee is not entitled to immunity if it is
proven that the employee's conduct constituted
“actual malice” or “intent to harm.”
S.C. Code § 15-78-70(b). Defendants argue that there
“is no allegation of ‘actual malice,' or
‘intent to harm, '” asserted in support of
the assault and battery claims, (ECF No. 8-1 at 5), and the
Magistrate Judge agreed. However, under South Carolina law,
if a Sheriff's deputy “uses excessive force, or
‘force greater than is reasonably necessary under the
circumstances,' he may be [personally] liable for
assault.” Stewart v. Beaufort County, 481
F.Supp.2d 483, 492 (D.S.C. 2007) (quoting Roberts v. City
of Forest Acres, 902 F.Supp. 662, 671 n.2 (D.S.C.1995)).
See Morning v. Dillon County, No. 4:15-cv-03349-RBH,
2017 WL 4276906, at *6 (D.S.C. Sept. 27, 2017) (explaining
that “[b]ecause Plaintiff has a viable § 1983
excessive force claim against Rogers, there is a genuine
issue of material fact as to whether the DCSO is liable under
the SCTCA for the alleged assault and battery committed by
Rogers”) (citing Barfield v. Kershaw Cty.
Sheriff's Office, 638 Fed.Appx. 196, 201-03 (4th
Cir. 2016) (“[I]n the case of a viable excessive force
claim under § 1983, Barfield's SCTCA battery claim
against the KCSO also survives [summary judgment].”)).
No. one disputes that Plaintiff has adequately alleged an
excessive force claim as to Defendant Stokes, and he
incorporates those allegations in his claims for assault and
battery. (ECF No. 1 at ¶¶ 67, 72). Accordingly, for
the purpose of the Rule 12(b)(6) inquiry, the Court finds
that Plaintiff has alleged that Defendant Stokes acted with
actual malice and/or intent to harm so as to overcome
immunity from suit on the assault and battery claims. The
governmental agency, in this case CCSO, may be liable for the
assault and battery. Barfield, 638 Fed.Appx. at 201;
S.C. Code § 15-78-70(c).
the Report and Recommendation is adopted in part and
incorporated herein by reference consistent with this
Court's ruling. The motion to dismiss is granted in part
and denied in part. The motion is granted to the extent that
the second, third, and sixth causes of action are dismissed
without prejudice. The motion is otherwise denied.
OF RIGHT TO APPEAL
parties are hereby notified that any right to appeal this
Order is governed by Rules 3 and 4 of the ...