Belton v. Bamberg et al
Filing
66
OPINION AND ORDER RULING ON 57 REPORT AND RECOMMENDATION. Defendants' motion to dismiss 34 is granted and Plaintiff's motion for summary judgment 43 is denied. Defendants' motion for protective order 51 is denied as moot. It is FURTHER ORDERED that Plaintiff's motions 63 , 64 are granted. Signed by Chief Judge Margaret B Seymour on 9/12/2012. (abuc) Modified to edit text on 9/13/2012 (abuc).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Tony Lee Belton,
)
) C/A No. 1:11-2301-MBS
Plaintiff,
)
)
vs.
)
)
ORDER AND OPINION
Willie Bamberg, Wanda Stewart,
)
Robert Hooper,
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)
Defendants.
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____________________________________)
Plaintiff Tony Lee Belton is an inmate in custody of the South Carolina Department of
Corrections who currently is housed at the Manning Correctional Center in Columbia, South
Carolina. At the time of the underlying events, Plaintiff was detained at the Orangeburg-Calhoun
Regional Detention Center in Orangeburg, South Carolina. Plaintiff alleges that on February 19,
2008, he was placed in a cell with an individual who became increasingly violent over the next
several days. According to Plaintiff, he requested on numerous occasions to be moved to a different
cell, to no avail. Plaintiff alleges that on February 23, 2008, he was attacked by the cell mate.
Plaintiff defended himself and fatally injured the cell mate. Plaintiff was cleared of charges related
to the cell mate’s death on February 4, 2010, when a grand jury no billed an indictment against him
for involuntary manslaughter.
Plaintiff, proceeding pro se, brings this action against Defendants Willie Bamberg, Wanda
Stewart, and Robert Hooper, alleging that they failed to protect him from the violent cell mate.
Plaintiff alleges violation of his constitutional rights pursuant to 42 U.S.C. § 1983 and state law
claims under the South Carolina Tort Claims Act (SCTCA), S.C. Code Ann. § 15-78-10, et seq.
Plaintiff is granted the benefit of a filing date of August 23, 2011. See Houston v. Lack, 487 U.S.
266 (1988).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Shiva V. Hodges for pretrial handling. On December 6, 2011,
Defendants filed a motion to dismiss, asserting that Plaintiff’s claims are barred by the applicable
limitations periods for § 1983 claims and claims under the SCTCA. On December 12, 2011, in
accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the
dismissal procedures and the possible consequences of failing to respond adequately. On January
13, 2012, Plaintiff filed a motion for summary judgment and response in opposition to the motion
to dismiss. Defendants filed a reply and response in opposition to Plaintiff’s motion for summary
judgment on January 27, 2012. On February 7, 2012, Plaintiff filed an additional response in
opposition to the motion to dismiss, to which Defendants filed a reply on February 8, 2012. Plaintiff
filed a surreply to Defendants’ motion to dismiss on February 14, 2012. Also pending is a motion
for protective order from discovery requests filed by Defendants on January 27, 2012.
On June 1, 2012, the Magistrate Judge issued a Report and Recommendation in which she
recommended that Defendants’ motion to dismiss be granted on the grounds that (1) Plaintiff’s state
law claims are barred by the two year limitations period set forth in S.C. Code Ann. § 15-78-110,
and (2) Plaintiff’s § 1983 claims are barred by the applicable three year limitations period set forth
in S.C. Code Ann. § 15-3-530(5). See Owens v. Okure, 488 U.S. 235, 250 (1989) (holding that
courts considering § 1983 claims should borrow from the general or residual statute for personal
injury actions). Plaintiff filed objections to the Report and Recommendation on June 20, 2012, to
which Defendants filed a reply on June 25, 2012. Plaintiff filed a response to Defendants’ reply on
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July 2, 2012, as well as a motion to amend his objections and a motion for reconsideration of the
Report and Recommendation on August 15, 2012. The court will consider Plaintiff’s July 2, July
18, and August 15, 2012 submissions as supplementing his objections to the Report and
Recommendation. Accordingly, Plaintiff’s motions (ECF No. 63, 64) are granted for this limited
purpose.
DISCUSSION
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This 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).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. This court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id.
Plaintiff asserts that the Magistrate Judge erred in recommending the complaint be dismissed
as barred by the two and three year limitations periods relating to Plaintiff’s SCTCA and § 1983
claims, respectively. Plaintiff states that during the investigation of the incident he was prohibited
by S.C. R. Crim. P. 5(b)(2) from disclosing any information regarding the case.1 Thus, Plaintiff
makes two arguments: (1) that his cause of action did not accrue until the criminal action was
1
Rule 5(b)(2) provides: “Except as to scientific or medical reports, this subdivision does not
authorize the discovery or inspection of reports, memoranda, or other internal defense documents
made by the defendant, or his attorneys or agents in connection with the investigation or defense of
the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by
prospective prosecution or defense witnesses, to the defendant, his agents or attorneys.” Rule 5 deals
with pre-trial discovery of documents in a criminal case. State v. Powers, 501 S.E.2d 116, 119 n.2
(S.C. 1998).
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dismissed and, according to Plaintiff, he was free to pursue his § 1983 claim; and, alternatively, (2)
that the limitations period should be equitably tolled for the period that the criminal investigation
was ongoing. The court disagrees.
A.
Accrual of Cause of Action
Plaintiff argues that he was prohibited from bringing a cause of action because of the
confidential nature of the criminal investigation.
The applicable statute of limitations begins to run once a claim accrues, and federal law
controls that determination. A Society Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011)
(citing Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975)). A civil rights claim accrues when the
plaintiff “‘knows or has reason to know of the injury which is the basis of the action.’” Id. (quoting
Cox, 529 F.2d at 50). In this case, Plaintiff knew he had reason to bring a cause of action against
Defendants at the time of the incident when they allegedly failed to protect him from a violent cell
mate. Applying this principle, Plaintiff was required to bring a cause of action under § 1983 no later
than February 23, 2011, three years after the alleged failure to protect took place. Plaintiff did not
file his complaint until August 23, 2011.
The result is not different under state law. Relying on Brown v. Finger, 124 S.E.2d 781
(S.C. 1962), Plaintiff contends that he had no “legal right” to sue until the criminal proceedings were
terminated. In Brown, the South Carolina Supreme Court noted:
The fundamental test, however, in determining whether a cause of action has accrued,
is whether the party asserting the claim can maintain an action to enforce it. A cause
of action accrues at the moment when the plaintiff has a legal right to sue on it.
The Brown court cited Bugg v. Summer, 26 S.C.L. (1 McMul.) 333 (1841) in support of its holding.
In Bugg, the supreme court held:
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Whenever there is a plaintiff who can sue, and a defendant who can be sued, the
statute of limitations begins to run. A right of action has accrued to the plaintiff. The
general rule is, that if the statute begins to run, it is not suspended by any subsequent
event.
Stated differently, Plaintiff had a legal right to sue at the time the alleged failure to protect
took place. The court can find no support for the proposition that the limitations period was
suspended because a criminal investigation occurred as a result of the altercation. Plaintiff’s
objection is without merit.
B.
Equitable Tolling
Plaintiff next contends that the court should apply equitable tolling to extend the time for
Plaintiff to file his complaint. When a federal question action is based on § 1983, which lacks a
specific limitations period, the court “borrows” its limitations period from state law, and looks to
state law for the applicable equitable tolling rule. Wade v. Danek Med., Inc., 182 F.3d 281, 289 (4th
Cir. 1999). In South Carolina, a defendant may be estopped from claiming the statute of limitations
as a defense if some conduct or representation by the defendant has induced the plaintiff to delay
filing suit. Hedgepath v. Am. Tel. & Tel. Co., 559 S.E.2d 327, 338 (S.C. Ct. App. 2001).
The court is not inclined to apply equitable tolling under the circumstances of this case. The
court is unable to find support for the proposition that Rule 5 operates as a “gag order,” as Plaintiff
contends, or that Defendants prevented Plaintiff from filing the within complaint. Plaintiff’s
objection is without merit.
CONCLUSION
The court concurs in the recommendation of the Magistrate Judge. The Report and
Recommendation is incorporated herein by reference. Defendants’ motion to dismiss (ECF No. 34)
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is granted. Plaintiff’s motion for summary judgment (ECF No. 43) is denied. Defendants’ motion
for protective order (ECF No. 51) is denied as moot.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
September 12, 2012.
NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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