Jane Doe 202a v. Cannon et al

Filing 121

ORDER AND OPINION adopting 115 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting in part, denying in part, finding as moot in part 106 Motion for Partial Summary Judgment. The CCSO Defendants&# 039; Motion for Partial Judgment on the Pleadings is GRANTED as to Plaintiff's fourth, seventh, and ninth causes of actions, DENIED as to Plaintiff's eighth cause of action, and found MOOT as to Plaintiff's twelfth cause of action. Signed by Honorable Richard M Gergel on 1/8/2018.(ssam, ) Modified to correct year filed on 1/8/2018 (ssam, ).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Jane Doe 202a,

Case No 2:16-cv-00530-RMG

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Plaintiff,

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v.

Al Cannon, Sheriff of Charleston County,
individually and in his official capacity,
et al .,

ORDER AND OPINION

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Defendants.

I.

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Background

This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge (Dkt. No. 115) recommending that the Court grant in part, deny in part, and
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find moot in part the Charleston County Sheriff's Office Defendants' (the "CCSO Defendants")
Motion for Partial Judgment on the Pleadings. (Dkt. No. 103.) Plaintiff filed objections to the R.
& R. on November 20, 2017, and the CCSO Defendants filed a reply on December 4, 2017.

(Dkt. Nos. 117, 119.) For the reasons set forth below, the Court adopts the R. & R. as the order
of the Court. The CCSO Defendants' Motion for Partial Judgment on the Pleadings is
GRANTED as to Plaintiff's fourth, seventh, and ninth causes of action, DENIED as to Plaintiff's
eighth cause of action, and found MOOT as to Plaintiff's twelfth cause of action.
II.

Facts

The Court adopts the relevant facts as outlined in the R. & R. (Dkt. No. 115 at 1-4.)
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These Defendants are Sheriff Al Cannon, Kathryn Farmer, Thomasina Dyer, Andrew T. Grant, Lindsay
Fickett, Brandon Calvert, Patrice Washington, Tracey Mathewes, Steven Durbin, Bernard Keyes, Michael
Tice, Willis L. Beatty, Christopher McLauchlan, and Michael A. Walters (collectively, the "CCSO
Defendants").

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III.

Legal Standard

A.

Magistrate Judge's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261 , 270- 71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, 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)(l). In
the absence of any specific objections to the Report and Recommendation, "a district court need
not conduct a de nova 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).

B.

Motion for Judgment on the Pleadings
A Rule 12(c) motion for judgment on the pleadings is assessed by "applying the same

standard ... as motions made pursuant to Rule 12(b)(6)." Burbach Broad. Co. of Delaware v.
Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002) (citing Edwards v. City of Goldsboro, 178

F.3d 231, 243 (4th Cir. 1999)). Rule 12(b)(6) permits the dismissal of an action ifthe complaint
fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). 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 of the claim showing that the
pleader is entitled to relief."' Republican Party of NC. v. Martin , 980 F .2d 943 , 952 (4th Cir.

1992) (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
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with the complaint's allegations." E. Shore Mkts., Inc. v. JD. 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
relief that is plausible on its face. "

Bell At!. 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.

IV.

Discussion
The CCSO Defendants have moved for judgment on the pleadings on Plaintiff's fourth,

seventh, eighth, ninth, and twelfth causes of action. (Dkt. No . 103 .)

A.

Eighth Cause of Action

The CCSO Defendants argue that the Amended Complaint seeks improper retrospective
declaratory relief. (Dkt. No. 103.) In her response, the Plaintiff clarified that she seeks only postverdict declaratory relief under 42 U .S.C § 1983. (Dkt. No. 108.) This Court ruled in a prior
order that, because "Plaintiff has represented that she is not seeking preliminary injunctive relief'
the Court "need not consider at this time whether post-verdict permanent injunctive relief may be
appropriate [under 42 U.S.C. § 1983]." (Dkt. No. 78 at 3-4.) The CCSO Defendants' motion for
partial judgment on the pleadings is therefore denied as to Plaintiff's eighth cause of action

because Plaintiff seeks only post-verdict permanent injunctive relief.

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B.

Twelfth Cause of Action

The Magistrate Judge recommended that the CCSO Defendants' Motion for Partial
Judgment on the Pleadings (Dkt. No. 103) be denied as moot with respect to Plaintiffs twelfth
cause of action, civil conspiracy, because Plaintiff stated in her response to the motion that her
civil conspiracy cause of action is not brought against any CCSO Defendant. (Dkt. No. 108 at 4.)
No party has objected to the Magistrate Judge ' s Recommendation, and Court finds that the
Magistrate Judge has correctly applied the controlling law to the facts relevant to this issue. For
this reason, the CCSO Defendant' s Motion for Partial Judgment on the Pleadings is denied as
moot with respect to Plaintiffs twelfth cause of action.

C.

Fourth, Seventh, and Ninth Causes of Action

The Magistrate Judge recommended in the R. & R. that the Court grant the CCSO
Defendants' Motion for Partial Judgment on the Pleadings with respect to Plaintiffs fourth,
seventh, and ninth causes of action (state law claims for gross negligence and defamation
brought against the CCSO Defendants under this Court' s pendant jurisdiction) because the
Sheriff is immune from suit under the Eleventh Amendment. (Dkt. No. 103 at 5-10.)
Under the Eleventh Amendment, states, as well as "arm[s] of the State and State
officials" are protected from suit. Bland v. Roberts, 730 F.3d 368, 390 (4th Cir. 2013) (internal
quotations omitted). Political subdivisions of the state such as counties or municipalities which
are created by the state but operate independently cannot avail themselves of the state's Eleventh
Amendment immunity. See United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency,
804 F.3d 646, 651 (4th Cir. 2015). Courts in this circuit consider four nonexclusive factors to
determine whether an entity is an arm of the state for Eleventh Amendment purposes:
(1) whether any judgment against the entity as defendant will be paid by the State
or whether any recovery by the entity as plaintiff will inure to the benefit of the

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State; (2) the degree of autonomy exercised by the entity, including such
circumstances as who appoints the entity' s directors or officers, who funds the
entity, and whether the State retains a veto over the entity' s actions; (3) whether
the entity is involved with state concerns as distinct from non-state concerns,
including local concerns; and (4) how the entity is treated under state law, such as
whether the entity' s relationship with the State [is] sufficiently close to make the
entity an arm of the State.

S C Dep 't of Disabilities & Special Ne eds v. Hoo ver Universal, Inc., 535 F.3d 300, 303 (4th Cir.
2008) (internal quotation omitted).
The Magistrate Judge cited extensive precedential support from the Fourth Circuit (Dkt.
No. 115 at 7) for the conclusion that Sheriff Cannon is immune from suit under the Eleventh
Amendment when sued in his official capacity. See Cromer v. Brown, 88 F.3d 1315, 1332 (4th
Cir. 1996) ("in his capacity as a state official, Sheriff Brown is immune from suit under § 1983
for money damages"). Plaintiff has filed objections to the Magistrate Judge 's recommendation as
to Sheriff Cannon ' Eleventh Amendment immunity. In those objections, Plaintiff concedes that
the Magistrate Judge ' s recommendation "is what has been the traditional conclusion, that the
Sheriff be regarded as an ' arm of the state ' for purposes of Eleventh Amendment Immunity."
(Dkt. No . 117 at 1-2.) Nonetheless, Plaintiff asks the Court to depart from established precedent
in the Fourth Circuit to find that Sheriff Cannon is not an arm of the state for purposes of
Eleventh Amendment immunity. Plaintiff relies primarily on the Fourth Circuit's decision in

Lawson v. Union County Clerk of Court, 828 F.3d 239 (4th Cir. 2016). In Lawson, the Fourth
Circuit applied the Hoover factors and determined that the clerk of the county court in Union
County, South Carolina was "a county agency that operates locally as an independent
subdivision of the state," 828 F.3d at 251 , so was not an "arm of the state" entitled to Eleventh
Amendment immunity. Although the Fourth Circuit' s decision in Cromer pre-dates Hoover , the
Magistrate Judge provided a thorough analysis of the bedrock of case law underlying the factors

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the Fourth Circuit considered in Cromer and Lawson to determine whether an entity is an arm of
the state for Eleventh Amendment purposes. The Magistrate Judge concluded, and this Court
agrees, that the Fourth Circuit has been using substantially the same factors to determine whether
an entity is an arm of the state since its decision in Ram Ditta By & Through Ram Ditta v.

Maryland Nat. Capital Park & Planning Comm 'n, 822 F.2d 456 (4th Cir. 1987). The Magistrate
Judge explained that, in Cromer, the Fourth Circuit expressly relied on Gray v. Laws, 51 F.3d
426 , 430 (4th Cir. 1995), in stating what factors should be considered, and that the Gray Court
expressly relied on Ram Ditta. Likewise, the Fourth Circuit in Lawson expressly relied on the
factors from Hoover, which relied on the factors set out in Maryland Stadium Authority v.

Ellerbe Becket Inc., 407 F.3d 255 (4th Cir. 2005), which, in tum, applied the factors from Ram
Ditta. (Dkt. No . 115 at 7-10.)
In her objections to the R. & R., Plaintiff does not contest the Magistrate Judge ' s
conclusion that the Fourth Circuit considered substantially the same factors in Lawson that it did
in Cromer to determine whether the entity was an arm of the state for Eleventh Amendment
purposes. Plaintiff also does not argue that, since Cromer, the relationship between county
sheriffs offices and the state has changed. Instead, Plaintiff argues that "Cromer should be
reconsidered in light of Lawson," (Dkt. No . 117 at 2), implicitly claiming that the Fourth Circuit
misapplied the applicable factors in Cromer and should revisit its decision now. To support her
position, Plaintiff claims that the relationship between the clerk of court and the state
government in Lawson is similar to the relationship between county sheriffs and the state
government because ( 1) both the clerk of court and the sheriffs offices are created by the same
sentence in Article V, Section 24 of the South Carolina Constitution; (2) each is funded not by

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the state but by the county2 ; and (3) each operates autonomously within his or her county under
authority described by statute. (Dkt No. 117 at 3-4.)
Fortunately, this Court need not speculate about how the Fourth Circuit would apply the
Hoover factors to these aspects of the relationship between county sheriffs offices and the state.
The Fourth Circuit applied the same factors in Cromer and found that, on balance, they led to the
conclusion that county sheriffs offices are dominated by the state. In Cromer, the Fourth Circuit
acknowledged that the determination of whether a potential judgment will be paid out of the state
treasury is largely, if not wholly dispositive. However, because any potential judgment would
have been paid by the South Carolina Insurance Reserve Fund (as it would in this case), and the
Fourth Circuit was unable to determine from the record in Cromer whether the state paid any
premiums to the Fund on behalf of the county, the Fourth Circuit based its decision on its
consideration of the other three factors and found that the sheriff was an arm of the state for
Eleventh Amendment purposes. In reaching its decision in Cromer, the Fourth Circuit cited the
district court's decision in Gulledge v. Smart, 691 F. Supp. 947, 954-55 (D.S.C. 1988), affd, 878
F.2d 379 (4th Cir. 1989) (holding that South Carolina sheriffs are state officials for Eleventh
Amendment purposes). In Gullege, the District Court determined that county sheriffs offices are
"dominated" by the state for the following reasons:
While the state constitution establishes the elective office of county sheriff and his
term of office, it also provides that the General Assembly is to prescribe his duties
and compensation. S.C. Const. art. V § 24. Accordingly, the General Assembly
through numerous statutes has set forth the sheriffs (and his deputies') duties and
compensation. See South Carolina Code of Laws, 1976, §§ 23- 11-10 et seq.;§
23-13-10; § 4- 9-30(5) and (7). The sheriffs arrest powers relate primarily to
state offenses. Id. §§ 17-13-30, 23-15- 50. Indeed, even the sheriffs territorial
jurisdiction, namely, county-wide, is in effect prescribed by the legislature
through the statutory designation of county boundary lines. Id. §§ 4- 3-10 et
seq. Although the sheriff as an elected official is not subject to hiring and firing
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Defendants admitted at Dkt. No. 91 at~ 6 that the Sheriffs office is funded by Charleston County.

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by the state, the legislature has nevertheless prescribed that the Governor is the
public official empowered to remove the sheriff from office for misconduct and to
fill a vacancy in that office. Id. § 1-3-240; § 23-11-40. As in McConnell, "the
inescapable con cl us ion is that [a county sheriff] [is] dominated by the state." 829
F.2d at 1328."

Gullege, at 1332. The Fourth Circuit's analysis in Cromer, by reference to Gullege, included
consideration of the facts Plaintiff urges this Court to consider anew here, including Article V,
Section 24 of the South Carolina Constitution and the degree of control that the state exercises
over sheriffs offices through various statutes. For these reasons, this Court concludes that the
law in the Fourth Circuit is firmly established in Cromer that county sheriffs are immune from
suit under the Eleventh Amendment when sued for money damages in their official capacities.
V.

Conclusion

For the reasons set forth above, the CCSO Defendants' Motion for Partial Judgment on the
Pleadings (Dkt. No. 115) is GRANTED as to Plaintiffs fourth, seventh, and ninth causes of
actions, DENIED as to Plaintiffs eighth cause of action, and found MOOT as to Plaintiffs
twelfth cause of action.
AND IT IS SO ORDERED.

G gel
United States District Court Judge
January _2_, 2018
Charleston, South Carolina

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