Jane Doe 202a v. McGowan et al

Filing 105

ORDER AND OPINION adopting 81 Report and Recommendation of Magistrate Judge Mary Gordon Baker. Defendants' Partial Motion to Dismiss (Dkt. No. 57 ) is GRANTED as to Plaintiff's Eleventh and Sixteenth Causes of Action, DENIED as to Plaintiff's Fourth Cause of Action, and found to be MOOT as to the Plaintiff's First and Fifteenth Causes of Action. Signed by Honorable Richard M Gergel on 2/15/2018.(ssam, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Jane Doe 202a,
Plaintiff,
v.

Leigh Ann McGowan, individually;
Charles Francis Wohlleb, individually;
Anthony M. Doxey, individually;
Michael Kouris, individually;
City of North Charleston;
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No 2:16-cv-00777-RMG

ORDER AND OPINION

This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge (Dkt. No . 81) recommending that the Court grant in part, deny in part, and find
moot in part Defendants' Partial Motion to Dismiss (Dkt. No. 57). Plaintiff filed objections to the
R. & R., and Defendants filed a reply. (Dkt. Nos. 83 , 86.) For the reasons set forth below, the
Court adopts the R. & R. as the order of the Court. Defendants' Partial Motion to Dismiss (Dkt.
No. 57) is GRANTED as to Plaintiffs Eleventh and Sixteenth Causes of Action, DENIED as to
Plaintiffs Fourth Cause of Action, and found to be MOOT as to Plaintiffs First and Fifteenth
Causes of Action.
I.

Background and Relevant Facts
The Court adopts the relevant facts as outlined in the R. & R. (Dkt. No. 81 at 1-4.)

II.

Legal Standard
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

-1-

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, "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).

III.

Discussion
A.

First and Fifteenth Causes of Action

Plaintiffs First and Fifteenth Causes of Action seek injunctive and declaratory relief,
respectively, against the City of North Charleston under Title 42, United States Code, Section
1983. Plaintiff has clarified that her requests for injunctive and declaratory relief pertain to "postverdict relief." (Dkt. No. 61 at 1.) The Magistrate Judge has therefore recommended that the
Court deny Defendants' Partial Motion to Dismiss as moot with respect to Plaintiffs First and
Fifteenth Causes of Action. No party has objected to the Magistrate Judge' s recommendation,
and the Court finds that the Magistrate Judge has correctly applied the controlling law to the
relevant facts . Defendants' Partial Motion to Dismiss is therefore denied as moot with respect to
Plaintiffs First and Fifteenth Causes of Action.

B.

Fourth Cause of Action

Plaintiffs Fourth Cause of Action alleges that Defendants McGowan, Doxey, Wohlleb,
and the City of North Charleston are liable for invasion of privacy under Section 1983 and under
state law for their warrantless entry into Plaintiff's residence. 1 Defendants argue in their Partial

1

For reasons explained in Footnote 5 of the R. & R. (Dkt. No. 81 at 7), the Magistrate Judge and this
Court have analyzed Plaintiff's federal invasion of privacy claim in the context of the Fourth Amendment.

-2-

Motion to Dismiss that Plaintiffs Fourth Cause of Action is duplicative because it is subsumed
within Plaintiffs Second Cause of Action, which is a Section 1983 claim against Defendants
McGowan, Wohlleb, and Doxey for warrantless entry into her home. As the Magistrate Judge
explained, while Plaintiffs Second and Fourth Causes of Action may be duplicative, that is not
sufficient grounds to dismiss the Fourth Cause of Action, and allowing both claims to proceed at
this time will not lead to excess discovery. (Dkt. No. 81 at 8.)

The Magistrate Judge also

explained that Plaintiffs allegations about Defendants' warrantless entry into her home are
sufficient to state a state law claim for invasion of privacy. (Dkt. No. 81 at 16.) The Magistrate
Judge therefore recommended that this Court deny Defendants' Partial Motion to Dismiss as to
Plaintiffs Fourth Cause of Action. No party has objected to the Magistrate Judge's
recommendation, and the Court finds that the Magistrate Judge has correctly applied the
controlling law to the relevant facts. Defendants' Partial Motion to Dismiss is denied as to
Plaintiffs Fourth Cause of Action.

C.

Sixteenth Cause of Action

Plaintiffs Sixteenth Cause of Action alleges that the City is liable under Section 1983 or,
in the alternative, under state law for unauthorized surveillance of Plaintiff and her home through
attorney Sandra J. Senn. Plaintiff claims that Senn' s actions violated the City's official policy
which forbids police from conducting surveillance that is not directly related to suspected
criminal activity. As the Magistrate Judge explained in the R. & R. , the law is well-settled that a
breach of internal policy alone cannot be the basis for a Section 1983 claim. (Dkt. No. 81at14.)
The Magistrate Judge therefore recommended that Plaintiffs Section 1983 claim for
unauthorized surveillance in the Sixteenth Cause of Action be dismissed because Plaintiff has

not sufficiently pleaded that the City has a policy or custom to unconstitutionally surveil the
Plaintiff through its attorney, Sandra Senn.
-3-

The Magistrate Judge also recommended that this Court dismiss the state law invasion of
privacy claim within Plaintiff's Sixteenth Cause of Action because Plaintiff's vague allegations
about Sandra Senn's surveillance of her residence do not include factual allegations sufficient to
maintain a claim against the City for unlawful surveillance, not least because Senn was not an
employee of the city, and Plaintiff has not alleged that any Defendant in this case intentionally
committed

an

invasion

of privacy.

No

party

objected

to

the

Magistrate

Judge's

recommendations, and the Court finds that the Magistrate Judge has correctly applied the
controlling law to the relevant facts. Defendants' Partial Motion to Dismiss is granted with
respect to Plaintiff's Sixteenth Cause of Action.
D.

Eleventh Cause of Action

In her Eleventh Cause of Action, Plaintiff alleges that Defendants McGowan, Wohlleb,
Kouris, and the City are liable under Section 1983 for retaliating against the Plaintiff for her
mother's state court lawsuit to intimidate Plaintiff from filing her own lawsuit. The details of
Plaintiff's retaliation allegations are described at length in the R. & R. (Dkt. No. 81at9.)

I.

Individual Defendants McGowan, Wohlleb, and Kouris

The Magistrate Judge recommended that the Eleventh Cause of Action be dismissed as to
individual Defendants McGowan, Wohlleb, and Kouris because Plaintiff's only allegations
against these individual Defendants concern their actions on March 27, 2014, the night of her
arrest, long before Plaintiff's mother' s lawsuit was filed . (Dkt. No. 81 at 11.) The Magistrate
Judge explained that Plaintiff's argument that these individual defendants are liable for
retaliation against the Plaintiff through the actions of their lawyer, Sandra J. Senn, is contrary to
law because vicarious liability cannot form the basis for liability in Section 1983 lawsuits. (Id. at
11-12.) The Magistrate Judge therefore concluded that the Plaintiff had failed to allege that
Defendants McGowan, Kouris, and Wohlleb personally retaliated against the Plaintiff and
-4-

recommended that Plaintiffs Eleventh Cause of Action be dismissed as to these individual
Defendants. (Id. at 12.) No party objected to the Magistrate Judge's recommendation as to these
individual defendants, and the Court finds that the Magistrate Judge has correctly applied the
controlling law to the relevant facts . Defendants' Partial Motion to Dismiss is granted with
respect to Plaintiffs Eleventh Cause of Action against individual defendants McGowan,
Wohlleb, and Kouris.

2.

City of North Charleston

The Magistrate Judge also concluded that Plaintiff had failed to state a retaliation claim
against the City of North Charleston and recommended that this Court grant Defendants' Partial
Motion to Dismiss as to Plaintiffs Eleventh Cause of Action against the City. Plaintiff objects2
to this recommendation, claiming that the Magistrate Judge "misconstrued and ignored
allegations in the amended complaint, so has failed to construe the complaint in the light most
favorable to the plaintiff." (Dkt. No. 83 at 2.) The Magistrate Judge's analysis is excerpted in full
here:
The City argues it cannot be held liable under § 1983 "unless action pursuant to
official municipal policy of some nature caused a constitutional tort." (Dkt. No.
57 at 10 (quoting Monell v. Dep 't of Soc. Servs., 436 U.S. 658, 690-91 , (1978).) A
city "is only liable under section 1983 if it causes 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). Carter stated four ways that a city may be
found liable through official policy or custom. "Municipal policy may be found in
written ordinances and regulation ... in certain affirmative decisions of individual
policymaking officials ... or in certain omissions on the part of policymaking
officials that manifest deliberate indifference to the rights of citizens." Carter,
164 F.3d at 218. A municipal custom may be established " [o]utside of such
formal decisionmaking channels ... if a practice is so 'persistent and widespread'

2

This was Plaintiffs only substantive objection to the R. & R. Plaintiff also asked the Court to note the
following : (I) that there is no dispute about whether the purse/bag was present at the scene, but there is a
dispute about whether the blood stains on the bag supported the officers' entry into the home; and (2) that
the defense verdict in Plaintiffs mother' s state court case has been appealed . (Dkt. No. 83 at 1-2.)

-5-

and 'so permanent and well settled as to constitute a 'custom or usage' with the
force of law."' Id. (quoting Monell, 436 U.S. at 691).
The doctrines of vicarious liability and respondeat superior are generally not
applicable in § 1983 actions. Vinn edge v. Gibbs, 550 F.2d 926, 927-29 (4th Cir.
1977); see also Monell, 436 U.S . at 691 (holding "that a municipality cannot be
held liable solely because it employs a tortfeasor-or, in other words, a
municipality cannot be held liable under § 1983 on a respondeat superior
theory"). "Where a plaintiff claims that the municipality has not directly inflicted
an injury, but nonetheless has caused an employee to do so, rigorous standards of
culpability and causation must be applied to ensure that the municipality is not
held liable solely for the actions of its employee." Bd. of Cnty. Comm 'rs of Bryan
Cnty., Oki. v. Brown, 520 U.S. 397, 405 (1997).
The Plaintiff argues that the city is liable through the actions of Senn acting as the
City' s attorney in the mother' s state court case. (Dkt. No . 61at17-19.) The
Plaintiff argues that the City is liable for the constant harassment alleged in
paragraph 248 of the Amended Complaint. The Plaintiff does not allege that the
City had any official policy to retaliate against the Plaintiff. The Plaintiff argues
that the city had an "ad hoc policy" by an authorized decision maker in Ms. Senn.
(Dkt. No . 61 at 17.)
" While municipal ' policy' is found most obviously in municipal ordinances,
regulations and the like which directly command or authorize constitutional
violations, it may also be found in formal or informal ad hoc ' policy' choices or
decisions of municipal officials authorized to make and implement municipal
policy .... " Spell v. McDaniel, 824 F .2d 13 80, 13 85 (4th Cir. 1987) (internal
citations omitted). "' Policy' in this context implies most obviously and narrowly a
' course of action consciously chosen from among various alternatives ' respecting
basic governmental functions, as opposed to episodic exercises of discretion in the
operational details of government." Id. A policy maker has "authority to set and
implement general goals and programs of municipal government, as opposed to
discretionary authority in purely operational aspects of government." Id.
As alleged by the Plaintiff, Ms. Senn was a lawyer retained to represent the City
and individual police officers in a lawsuit brought by the Plaintiff s mother. (Dkt.
No. 54 if 138.) The Plaintiff has not alleged that Senn held "authority to set and
implement general goals and programs of municipal government" for the City.
The Plaintiff has not sufficiently pleaded that the City has an official policy or
custom or an ad hoc policy or custom to retaliate against the Plaintiff. Therefore,
the undersigned recommends that the Plaintiffs Eleventh Cause of Action be
dismissed.
(Dkt. No. 81at12-14.)

-6-

In her objections to the R. & R., Plaintiff first argues that the Magistrate Judge ignored
the following allegations in the amended complaint:
a. Paragraph 138, that the defendants hired Senn to represent them,
b. Paragraph 139, that after hiring Senn, "the City and the defendants began a
series of retaliatory acts" against the plaintiff,
c. Paragraph 167, that the City's officers acted "under color of state law and
pursuant to City policy, in affirmatively acting so as to violate the plaintiffs
Constitutional rights,"
d. Paragraph 173 , that "[t]he City's custom or policy deprived the plaintiff' of her
Constitutional rights.

(Dkt. No. 83 at 2.) The Magistrate Judge did not ignore these allegations; she found that these
facts and allegations were insufficient to support a retaliation claim against the City. (Dkt. No. 81
at 8-14, including references to each of the allegations (a- d) above)).
Plaintiff also argues that "[t]he Magistrate's error is in viewing those allegations [as] a
means of alleging vicarious liability for the city. (Dkt. No. 83 at 3.) Plaintiff claims that the "City
is not alleged to be liable because its agents retaliated, but because it authorized retaliatory
actions by its agents." (Id.) Plaintiff claims that "what the complaint alleges is a program of
retaliation, approved by the City and other defendants, aimed at the plaintiff with the expressed
intention to "shake" her after the case on behalf of the mother was filed. Not, as the Magistrate
concluded, allegations of municipal liability because agents acted in a retaliatory manner." (Id. at
3-4.)
Plaintiff mischaracterizes the Magistrate Judge's analysis. The Magistrate Judge noted
that "the doctrines of vicarious liability and respondeat superior are generally not applicable in §
1983 actions." She went on to explain that the City may be liable if its policy or custom caused
tortious conduct. She concluded that Plaintiff had failed to allege that the City had an official

-7-

policy or custom that caused retaliation against Plaintiff or that attorney Senn had the policymaking authority to effectuate an ad hoc policy of retaliation against Plaintiff for which the City
could be held liable.
Plaintiff goes on to argue that the determination of whether an official had final
policymaking authority is a question of state law, Pernbaur v. City of Cincinnati, 4 75 U.S. 469,
483, (1986), and that "under state law, counsel effectuates clients' decisions, and acts for the
client, and when the agent acts it is the client's actions" (Dkt. No. 83 at 3). Plaintiff assert that
attorney Senn' s statement in an email about being unable to "shake" the Plaintiff is evidence of a
municipal policy sufficient to hold the City liable under Monell. For reasons outlined in Monell,
which the Magistrate Judge discussed in the R. & R., there are policy consideration behind
limiting the extent to which a municipality can be held liable under Section 1983 for the actions
of an individual, in this case a private attorney retained to defend the City in the Plaintiff's
mother's state court lawsuit. The Supreme Court' s decision in Monell and the Fourth Circuit's
decision in Spell are controlling law, and the Court finds that the Magistrate Judge correctly
applied the law to the facts of this case. Plaintiff's contention is that the City of North Charleston
may be held liable for a Section 1983 retaliation claim based on the following statement of its
attorney, Sandra Senn, in an email: "I really like the Sadlers and they have gotten tangled up
with a crazy lady and we can't seem to shake her. This case is too convoluted to put in a single
email but your clients did the right thing by calling the police." (Dkt. No. 114 at 6.) This email
from Sandra Senn falls fall short of what is needed, under Monell and Spell, to show that Senn
had undertaken a program of retaliation against the Plaintiff and that Senn had the decisionmaking authority under Spell to effectuate that program of retaliation as a policy, such that the

City can be held liable for Senn' s actions. For these reasons, the Court adopts the Magistrate

-8-

Judge's recommendation with respect to Plaintiffs Eleventh Cause of Action against the City of
North Charleston.

IV.

Conclusion

For the reasons set forth above, this Court adopts the R. & R. as the order of the Court.
Defendants' Partial Motion to Dismiss (Dkt. No . 57) is GRANTED as to Plaintiffs Eleventh
and Sixteenth Causes of Action, DENIED as to Plaintiffs Fourth Cause of Action, and found to
be MOOT as to the Plaintiffs First and Fifteenth Causes of Action.

AND IT IS SO ORDERED.

Richard Mark
/'

February 1~ , 2018
Charleston, South Carolina

-9-