Jane Doe 202a v. Cannon et al

Filing 78

ORDER AND OPINION adopting in part 58 Report and Recommendation; granting in part and denying in part 46 Motion to Dismiss for Failure to State a Claim. The motion to dismiss is GRANTED with regard to the following cl aims which are DISMISSED WITHOUT PREJUDICE: (1) all claims against Defendant Sanders and (2) Plaintiff's defamation claims against the CCSO Defendants in the Eleventh cause of action. The motion to dismiss is DENIED with regard to (1) Plaintiff 's claims for post-verdict injunctive relief against the CCSO Defendants in the First cause of action under for 42 U.S.C. §§ 1981 & 1983; (2) Plaintiff's conspiracy claims against the CCSO Defendants in the Second cause of action under 42 U.S.C. § 1983; (3) Plaintiff's claims for post-verdict declaratory relief against the CCSO Defendants in the Eighth cause of action. This Order has no effect on any claims in the parallel action (Jane Doe 202a v. Leigh Anne McGowan, 2:16-cv-00777-RMG-MGB). Signed by Honorable Richard M Gergel on 2/15/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Jane Doe 202a,
Plaintiff,
v.
Al Cannon, Sheriff of Charleston County,
individually and in his official capacity,
et aI.,

Defendants.

I.

Case No 2: 16-cv-00530-RMG

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ORDER AND OPINION

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Background
Plaintiff, through counsel, brought this action for violations of her constitutional rights

and under state law against Al Cannon, Sheriff of Charleston County; several deputy sheriffs and
employees of the sheriff; and Sandra 1. Senn and Senn Legal, LLC (the "Senn Defendants"l).
Defendants Sheriff Al Cannon ("Sheriff'), Kathryn Farmer ("Farmer"), Thomasina Dyer
("Dyer"), Andrew T. Grant ("Grant"), Lindsay Fickett ("Fickett"), Brandon Calvert ("Calvert"),
Elijah

Sanders

("Sanders"),

Patrice

Washington

("Washington"),

Tracey

Matthewes

("Matthewes"), Steven Durbin ("Durbin"), Bernard Keyes ("Keyes"), Michael Tice ("Tice"),
Willis L. Beatty ("Beatty"), Christopher McLauchlan ("McLauchlan"), and Michael A. Walters
("Walters") (collectively, the "CCSO Defendants") have filed a motion to dismiss under Rule 12
(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 46.) This matter is before the Court on
the Report and Recommendation ("R. & R.") of the Magistrate Judge recommending that the
Court grant in part and deny in part the CCSO Defendants' motion to dismiss. (Dkt. No. 58.)

Plaintiff has brought a related case against the Senn Defendants and others (Jane Doe 202a v. Leigh
Anne McGowan, et aI., 2:16-cv-00777-RMG-MGB).
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Plaintiff filed objections to the R. & R. on January 23, 2017, and the CCSO Defendants filed a
reply. (Dkt. Nos. 68, 72.) This Court partially adopts the R. & R. as the order of the Court,
granting in part and denying in part the CCSO Defendants' motion to dismiss. (Dkt. No. 46.)
The Court ADOPTS the R. & R. with regard to (1) all of Plaintiffs claims against
Defendant Sanders; (2) Plaintiff's conspiracy claims against the CCSO Defendants in the Second
cause of action under 42 U.S.C. § 1983; and (3) Plaintiff's defamation claims against the CCSO
Defendants in the Eleventh cause of action.
The Court DOES NOT ADOPT the R. & R. with regard to (1) Plaintiffs claims for
permanent injunctive relief against the CCSO Defendants in the First cause of action under 42
U.S.C. §§ 1981 & 1983, and (2) Plaintiffs claims for post-verdict declaratory relief against the
CCSO Defendants in the Eighth cause of action under 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C
§§ 1983 and 1986.

II.

Facts

The Court adopts the facts as outlined in the R. & R. (Dkt. No. 58 at 2-4.)

III.

Legal Standard
On a motion to dismiss under Rule 12(b)(6)2, a "complaint must be dismissed if it does not

allege 'enough facts to state a claim to reliefthat is plausible on its face.'" Giarratano v.
Johnson, 521 F.3d 298,302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

The court construes the CCSO Defendants' Motion to Dismiss as a Motion for Judgment on the
Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure which is filed after the Answer, while
a motion to dismiss is filed before or contemporaneously to the Answer. "A motion for judgment on the
pleadings under Rule 12(c) is assessed under the same standards as a motion to dismiss under Rule
12(b)(6)." Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir.1999».
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570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) ... [a court]
must detennine whether it is plausible that the factual allegations in the complaint are 'enough to
raise a right to relief above the speculative level. '" Andrew v. Clark, 561 F3d 261, 266 (4th Cir.
2009) (quoting Twombly, 550 U.S. at 555). "In considering a motion to dismiss, [the court]
accept [s] the complainant's well-pleaded allegations as true and view[ s] the complaint in the light
most favorable to the non-moving party." Stansbury v. McDonald's Corp., 36 F. App'x 98, 98-99
(4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.l993)).

IV.

Discussion
a. Claims Against Defendant Sanders
The Complaint does not name Defendant Sanders as a defendant in any cause of action or

otherwise seek any relief against Defendant Sanders. For these reasons, and with Plaintiffs
consent as articulated in her objections to the R. & R. (Dkt. No. 68 at 2), all claims against
Defendant Sanders are dismissed without prejudice.

b. First Cause of Action: 42 U.S.c. §§ 1981 & 1983 Claims for Injunctive Relief
As adequately explained in the R. & R., any claim for preliminary injunctive relief is
moot because it is undisputed that Plaintiff has been released from jail. (Dkt. No. 58 at 7-8.)
Plaintiff has objected to the Magistrate's recommendation, arguing that she has not made any
request for preliminary relief but rather seeks post-verdict pennanent injunctive relief. (Dkt. No.
68 at 2.) This Court reviews de novo any part of the R. & R. to which there has been proper
objection. Fed. R. Civ. P. 72(b)(2). 42 U.S.C. § 1983 Claim. Plaintiff has represented that she is
not seeking preliminary injunctive relief, and this Court need not consider at this time whether
post-verdict pennanent injunctive relief may be appropriate. For this reason, the CCSO

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Defendants' motion to dismiss is denied as to Plaintiffs claims for post-verdict injunctive relief
under 42 U.S.C. §§ 1981 & 1983.

c. Second Cause of Action: Conspiracy under 42 U.S.C. § 1983
The CCSO Defendants have argued that Plaintiff s conspiracy claims should be
dismissed under the intra-corporate conspiracy doctrine which says that a corporation cannot
conspire with itself. The Fourth Circuit has recognized two exceptions to the intra-corporate
conspiracy doctrine. Buschi v. Kirven, 775 F.2d 1240, 1252-53 (4th Cir. 1985) (quoting Nelson

Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952), cert. denied, 345 U.S.
925 (1953». The first exception is "when the officer has an independent personal stake in
achieving the corporation's illegal objective." Id. at 1252 (citation and internal quotation
omitted). The second exception is when an agent commits an "unauthorized act." Id. at 1253
(citation and internal quotation omitted) (emphasis in original).
Plaintiff has not made any concrete allegations that one of the Defendants acted in
accordance with his independent personal stake, so the first exception is not applicable here. The
second exception to the doctrine may apply because the Complaint alternatively alleges that the
CCSO Defendants' actions were consistent with and contrary to the Sheriff's policy. Because it
is not clear from the record whether the CCSO Defendants acted within the scope of their
authority, there is a genuine issue of material fact regarding whether the second exception to the
doctrine of intra-corporate conspiracy applies. For this reason, the CCSO Defendants' motion to
dismiss is denied as to Plaintiffs conspiracy claims under 42 U.S.C. § 1983.

d. Eighth Cause of Action: Declaratory Relief
The Magistrate has recommended that this Court dismiss Plaintiff's Eighth cause of
action for declaratory relief because Plaintiff improperly seeks declaration that the CCSO

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Defendants violated her rights at some time in the past. (Dkt. No. 58 at 11-12.) In the same vein
as her objection to the Magistrate's recommendation about Plaintiffs claims for injunctive relief,
Plaintiff argues that she is not seeking a declaration that Defendants violated her rights in the
past but may seek declaratory relief post-verdict. This Court need not determine at this time
whether post-verdict declaratory relief may be appropriate. For this reason, the CCSO
Defendants' motion to dismiss is denied as to Plaintiffs claim for post-verdict declaratory relief.

e. Eleventh Cause of Action: Defamation
Plaintiff concedes that the complaint does not presently contain any defamation claims
against the CCSO defendants. (Dkt. No. 68 at 5.) Plaintiff has been given the opportunity (in a
separate order) to amend her Complaint to cure pleading deficiencies in her defamation claims
against the Senn Defendants. Plaintiff may take that opportunity to cure deficiencies in her
defamation claims against the CCSO defendants as well. For this reason, Plaintiffs defamation
claims against the CCSO Defendants are dismissed without prejudice.
Plaintiff persistently argues that this Court should forgive her deficient defamation
pleadings because discovery could reveal that the Senn Defendants (a private attorney and that
attorney's law firm) may have been acting in some as yet undisclosed representative (or non­
representative) capacity that would render the Senn Defendants and others liable for defamation.
Plaintiff bears the burden of stating a viable claim for defamation in her amended complaint. The
Court is not convinced at this time that it will need any information in addition to a well-pleaded
defamation claim to determine whether a defamation privilege applies to the Senn Defendants.
This Court will not allow either party to use discovery as a fishing expedition. If Plaintiff
continues to urge this Court to allow discovery on the issue of the Senn Defendants' capacities,
the Court expects Plaintiffs counsel to present a clear argument with legal support.

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V.

Conclusion

For the reasons above, the Court GRANTS IN PART and DENIES IN PART the CCSO
Defendants' motion to dismiss.
The motion to dismiss is GRANTED with regard to the following claims which are
DISMISSED WITHOUT PREJUDICE: (1) all claims against Defendant Sanders and (2)
Plaintifrs defamation claims against the CCSO Defendants in the Eleventh cause of action.
The motion to dismiss is DENIED with regard to (1) Plaintifrs claims for post-verdict
injunctive relief against the CCSO Defendants in the First cause of action under for 42 U.S.C. §§
1981 & 1983; (2) Plaintiffs conspiracy claims against the CCSO Defendants in the Second
cause of action under 42 U.S.C. § 1983; (3) Plaintifrs claims for post-verdict declaratory relief3
against the CCSO Defendants in the Eighth cause of action. This Order has no effect on any
claims in the parallel action (Jane Doe 202a v. Leigh Anne McGowan, 2:16-cv-00777-RMG­
MGB).
AND IT IS SO ORDERED.

Richard
rgel
United States Di trict Court Judge
February I ~-, 2017
Charleston, South Carolina

42 U.S.c. § 1986 is only actionable when acts under 42 U.S.C. § 1985 are alleged. Plaintiff has not
made any allegations under 42 U.S.c. § 1985, so the declaratory relief claims proceed only under 28
V.S.C. §§ 2201 and 2202 and 42 V.S.C § 1983.
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