Mungin v. Charleston County et al

Filing 15

ORDER adopting in part Report and Recommendations; DISMISSES Charleston County from this action, DISMISSES Plaintiffs federal constitutional claims, and REMANDS this matter to the South Carolina Ninth Judicial Circuit (Charleston County) Court of Common Pleas. Signed by Honorable Richard M Gergel on 5/2/2016.(cwhi, )

IN THE UNITED STATES DISTRICT COURT~:J ':i);,'S OfFICE
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ZO! b HAY - 2 P ij: 21

Khiry Mungin,
Plaintiff,

)
)
)
)

v.

)

ORDER

)

Charleston County, J. Al Cannon, in his
capacity as Sheriff a/Charleston County,
and Charleston County Sheriffs
Department,

)
)
)
)
)

Defendants.

)

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that Defendants' motion to dismiss be granted in part and that the case be
remanded to the Charleston County Court of Common Pleas. For the foregoing reasons, the Court
adopts the Report and Recommendation in part and declines to adopt it in part, dismisses
Charleston County from this action, dismisses Plaintiffs federal constitutional claims, and
remands this matter to the Charleston County Court of Common Pleas.

I.

Background
On November 6, 2015, Plaintiff Khiry Mungin filed the present action in the Charleston

County Court of Common pleas, alleging that Charleston County Sheriffs deputies performed an
unreasonable body cavity search on him on November 8, 2012. Specifically, Plaintiffs vehicle
was stopped by Sheriffs deputies on Ashley River Road in Charleston County. Plaintiff alleges
that he "notified the Deputies that he had drugs on his person and he would retrieve them" but that
deputies nonetheless "continued their intrusion and removed drugs from Plaintiffs personal body
and body cavity" while Plaintiff was in public view. (Compi. ~~ 8-9.)

-1­

Defendants removed to this Court on December 11, 2015 and shortly thereafter moved to
dismiss the case. On March 23, 2015, the Magistrate Judge recommended that the motion to
dismiss be granted in part and that the case be remanded to state court. No party filed objections
to the Report and Recommendation.

II.

Legal Standard
A.

Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions ofthe Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1). Where the plaintiff fails to file any specific objections,
"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," see Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted),
and this Court is not required to give any explanation for adopting the recommendation of the
Magistrate Judge, Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
B.

Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . .. Our inquiry then is limited to whether the
allegations constitute 'a short and plain statement ofthe claim showing that the pleader is entitled
to relief.'" Republican PartyofN.C v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks

-2­

and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore MIas., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175,180 (4th
Cir.2000). However, while the Court must accept the facts in a light most favorable to the non­
moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or
arguments." Id.
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
reliefthat is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the

pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.

III.

Analysis
Plaintiff names three Defendants: Charleston County, Charleston County Sheriff Al

Cannon, and the Charleston County Sheriff's Department. Sheriff Cannon is sued only in his
official capacity. Charleston County has no control over the actions of the Sheriff, a state officer,
or the Sheriff's Department, a state agency. See S.C. Code 4-9-650; Stewart v. Beaufort Cty., 481
F.Supp.2d 483, 492 (D.S.C. 2007). Plaintiff makes no allegations regarding any act attributable
to Charleston County. Accordingly, the Magistrate Judge recommends that Charleston County be
dismissed from this action. (R. & R. 3-4.) Plaintiff has not objected to that recommendation. The
Court agrees with the Report and Recommendation and dismisses Charleston County from this
action.

-3­

Regarding the remammg Defendants, the Sheriff and the Sherifrs Department, the
Magistrate Judge recommends that, to the extent that Plaintiff intended to assert federal
constitutional claims pursuant to 42 U.S.C. § 1983, neither is subject to suit under § 1983 because
they are protected by South Carolina's Eleventh Amendment immunity. Plaintiff has not objected
to the Magistrate Judge's recommendation that his federal constitutional claims be dismissed. The
Court agrees with the Magistrate Judge's conclusion that PJaintifrs federal constitutional claims
should be dismissed, but reaches that conclusion for different reasons.

Although Eleventh

Amendment immunity is a "jurisdictional bar" to hearing a case, it is not a limitation on subject­
matter jurisdiction. Hutto v. S.c. Ret. Sys., 773 F.3d 536,542-43 (4th Cir. 2014). The distinction
is that the immune defendants must assert Eleventh Amendment immunity, which they have failed
to do here. Id. at 543. The Sheriff and Sherifrs Department waived South Carolina's Eleventh
Amendment immunity by removing this action to federal court. Lapides v. Ed. ofRegents ofUniv.

Sys. of Ga., 535 U.S. 613, 624 (2002).
Defendants move for dismissal because Plaintiff seeks to hold the Sheriff and Sherifrs
Department liable under a respondeat superior theory impermissible in § 1983 actions. (Defs.'
Mem. Supp. Mot. Dismiss 6, Dec. 16,2015, Dkt. No.5-I.) The Court agrees. Respondeat superior
is not available in a § 1983 action. Iqbal, 556 U.S. at 676; Monell, 436 U.S. at 691. The Sheriff
and Sherifrs Department would only be liable for injuries stemming from a deprivation of
constitutional rights by the Sherifrs deputies only "if [they] cause[d] such a deprivation through
an official policy or custom." Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (citing Monell
436 U.S. at 690-91). Sources of "official policy or custom" giving rise to liability include (1)
"written ordinances and regulations;" (2) "affirmative decisions of individual policymaking
officials;" (3) omissions by policymaking officials "that manifest deliberate indifference to the

-4­

rights of the citizens;" or (4) a practice "so persistent and widespread and so permanent and well
settled as to constitute a custom or usage with the force of law." Jd. at 218 (internal quotation
marks and citations omitted). Plaintiff makes no allegations regarding the policies or customs of
the Sheriff s Department; therefore, Plaintiff fails to state a § 1983 claim against the Sheriff and
Sheriff's Department. The Court therefore dismisses Plaintiffs federal constitutional claims.
Finally, the Court agrees with the Magistrate Judge's recommendation that the Court not
exercise supplemental jurisdiction over Plaintiffs remaining state law claims. (R. & R. 7-8.)
Neither Plaintiff nor Defendants have objected to that recommendation. The Court therefore
remands this matter to the Charleston County Court of Common Pleas.

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation in part

and declines to adopt it in part, DISMISSES Charleston County from this action, DISMISSES
Plaintiff s federal constitutional claims, and REMANDS this matter to the South Carolina Ninth
Judicial Circuit (Charleston County) Court of Common Pleas.

AND IT IS SO ORDERED.

Richard MarK rgel
United States District Court Judge

May 2-,2016
Charleston, South Carolina

-5­