Shell v. South Carolina Department of Mental Health et al

Filing 37

ORDER AND OPINION adopting 35 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 19 Motion for Summary Judgment. Signed by Honorable Margaret B Seymour on 2/23/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
John Shell,

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Plaintiff,
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vs.
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South Carolina Department of Mental
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Health, Latrice Cooper, and
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Tina Howell,
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Defendants.
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____________________________________)

C/A No. 2:15-4213-MBS-MGB

ORDER AND OPINION

On or about August 20, 2015, Plaintiff John Shell filed the within action in the Court of
Common Pleas for Richland County, South Carolina. Plaintiff filed an amended complaint on
September 8, 2015. Plaintiff alleges that he has been in the custody and control of Defendant South
Carolina Department of Mental Health (SCDMH) and a resident within the SCDMH Sexually
Violent Predator (SVP) program since August 1, 2011. Plaintiff alleges that sometime between
August 1, 2011, and August 2013, Defendants Latrice Cooper, a case manager with the SVP
program; and Tina Howell,1 a public safety officer with the SVP program, both engaged in
inappropriate sexual relationships with Plaintiff, causing him to relapse with respect to his treatment,
and preventing his potential release from the SVP program. Plaintiff alleges violations of due
process pursuant to 42 U.S.C. § 1983 (First Cause of Action); negligent supervision (Second Cause
of Action); and negligent training (Third Cause of Action). SCDMH removed the action on the
basis of federal question jurisdiction on October 13, 2015. In accordance with 28 U.S.C. § 636(b)

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Summary judgment was granted in favor of Defendant Howell on August 23, 2016.

and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Mary
Gordon Baker for pretrial handling.
This matter is before the court on motion for summary judgment filed by Defendant Cooper
on July 22, 2016. Plaintiff filed a response in opposition on August 15, 2016, to which Defendant
Cooper filed a reply on August 22, 2016. Defendant Cooper states that she was not employed by
SCDMH at the time the alleged inappropriate relationship occurred, and therefore was not acting
under color of state law during the time the alleged inappropriate conduct took place. Plaintiff
concedes that his alleged dalliance with Defendant Cooper did not occur until after she left
SCDMH’s employ. However, Plaintiff contends that Defendant Cooper “used the information and
access to information given to her in the course of that employment to engage in sexually explicit
conversations and letters with the Plaintiff[.]” ECF No. 24, 1.
On January 23, 2017, the Magistrate Judge issued a Report and Recommendation in which
she determined that Defendant Cooper was not a state actor at the time of the alleged illicit conduct,
regardless of the fact Plaintiff and Defendant Cooper met while Defendant Cooper was employed
by SCDMH. Accordingly, the Magistrate Judge recommended that Defendant Cooper’s motion for
summary judgment be granted. Plaintiff filed no objections to the Report and Recommendation.
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. In the absence of a timely filed objection, a district court need not conduct a de
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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).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) “the
violation of a right secured by the Constitution and laws of the United States,” and (2) this violation
“was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988). As the Magistrate Judge properly found, Defendant Cooper was not employed by SCDMH,
and thus not a state actor, at the time of the relationship alleged by Plaintiff. The court adopts the
Report and Recommendation and incorporates in herein by reference. For the reasons stated herein
and in the Report and Recommendation, Defendant Cooper’s motion for summary judgment (ECF
No. 19) is granted. The action is recommitted to the Magistrate Judge for additional pretrial
handling.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
February 23, 2017

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