Jane Doe 202a v. McGowan et al

Filing 178

ORDER AND OPINION denying 177 Defendants' Motion for Reconsideration. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 10/26/2018.(sshe, )

RECEIVED USOC
IN THE UNITED STATES DISTRICT C6~• CHARLESTON, SC
DISTRICT OF SOUTH CAROLIN1io1e OCT
CHARLESTON DIVISION

Parker Meyer,
Plaintiff,

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

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26 AH II: 26

Civil Action No. 2:16-cv-00777-RMG

ORDER AND OPINION

This matter is before the Court on Plaintiffs motion for reconsideration (Dkt. No. 177).
For the reasons set forth below, the Court denies the motion.
I.

Background

In brief, Plaintiff alleged that on March 27, 2014, Defendants McGowan, Doxey and
Wohlleb entered her house without a warrant and then proceeded to assault and arrest her in her
own home. Plaintiff further alleges that Defendant Kouris, also an officer, transported Plaintiff to
jail and defamed the Plaintiff by telling jail staff that she had abused her mother, who has dementia.
In two orders, the Court granted in part and denied in part Defendants' motion for summary
judgment. (Dkt. Nos. 171, 174.) In relevant part, the Court denied summary judgment on
Plaintiffs fifth, sixth and seventh causes of action for negligent hiring, supervision and retention.
(Dkt. No. 174 at 7 - 10.) Defendants now move for reconsideration of the Court's denial of
summary judgment on Plaintiffs negligence claims, arguing that the Court made errors of fact and
law. (Dkt. No. 177)

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II.

Legal Standard
Rule 59(e) of the Federal Rules of Civil Procedure governs motions to alter or amend a

judgment; however, the rule does not provide a legal standard for such motions. The Fourth Circuit
has articulated "three grounds for amending an earlier judgment: (1) to accommodate an
intervening change in controlling law; (2) to account for new evidence not available at trial; or (3)
to correct a clear error of law or prevent manifest injustice." Pac. Ins. Co. v. Am. Nat'l Fire Ins.
Co., 148 F.3d 396,403 (4th Cir. 1998) citing EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112

(4th Cir. 1997); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). "Rule 59(e) motions
may not be used, however, to raise arguments which could have been raised prior to the issuance
of the judgment, nor may they be used to argue a case under a novel legal theory that the party had
the ability to address in the first instance." Id. at 403 (internal citations omitted). Rule 59(e)
provides an "extraordinary remedy that should be used sparingly." Id. (internal citation omitted).
The decision to alter or amend a judgment is reviewed for an abuse of discretion. Id. at 402.

III.

Discussion
Defendants argue that the Court's ruling is based on a "misguided interpretation of the

import" of an interim report recommending a finding that Defendant McGowan previously
arrested an individual without probable cause. (Dkt. No. 177 at 4.) Defendants are incorrect, and
instead the Court's ruling is based on its determination that a jury should be the one to interpret
the import of the report.
As detailed in the Court's prior order, negligent hiring, supervision and retention cases
"generally tum on two fundamental elements-knowledge of the employer and foreseeability of
harm to third parties." Kase v. Ebert, 392 S.C. 57, 63, 707 S.E.2d456, 459 (Ct. App. 2011) (citation

omitted). See also Callum v. CVS Health Corp., 137 F. Supp. 3d 817, 860 (D.S.C. 2015);
Degenhart v. Knights of Columbus, 309 S.C. 114,115,420 S.E.2d 495,496 (1992).
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Prior to being hired by the Defendant City, Defendant McGowan was subject to four
investigations by the Office of Professional Standards while serving in the Charleston Police
Department ("CPD"). (Dkt. No. 120 at 38.) One of the investigations looked into a complaint that
Defendant McGowan lacked probable cause to enter a residence without a warrant, pushed a
handcuffed resident down a flight of stairs, and lacked probable cause to arrest an individual in the
residence for disorderly conduct. (Dkt. No. 79-8 at 6 - 7.) Importantly, during the internal
investigation, Captain Gary Tillman prepared an interim report ("Tillman Memo"), which found
that there was no evidence that Defendant McGowan pushed the resident down the stairs while
handcuffed, but did find that Defendant McGowan lacked probable cause when she arrested the
resident for disorderly conduct. (Id. at 7 - 8.) Importantly, Tillman made a recommendation that
Defendant McGowan receive a "one day suspension without pay" for the "arrest without probable
cause." 1 (Id.) Ultimately, Defendant McGowan was "exonerated" of the charge upon review by
a higher ranking officer. 2
Defendants focus excessively on the fact that Defendant McGowan was exonerated in the
internal review and the Tillman Memo was not adopted by the police department. However, while
the Tillman Memo was not the final decision and Defendant McGowan was not disciplined, the
Tillman Memo is still relevant to whether the Defendant City had, or should have had, knowledge
and the foreseeability of similar harm. The Court relied on Watson v. Adams, No. CV 4:12-3437BHH, 2017 WL 1001122 (D.S.C. Mar. 15, 2017) and Doe-4 v. Horry Cty., S.C., No. 4:16-CV-

1

Defendants argue that the Tillman Memo did not find that "McGowan lacked probable cause."
(Dkt. No. 177 at 7.) However, the Tillman Memo explicitly ended with the recommendation for
suspension based on the arrest without probable cause.
2

Attached to this motion, Defendants submit the full file of the internal investigation disposition
forms, including notes from the higher ranking officer, that were not before the Court on summary
judgment. There is no argument these are "new evidence" as they date from 2010, and the Court
notes that they do not affect its summary judgment ruling.

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03136-AMQ, 2018 WL 3227277 (D.S.C. July 2, 2018) to support this point. As Defendants note,
neither is binding on this Court. (Dkt. No. 8-9.) However, both courts denied summary judgment
on claims of negligent supervision where the only prior complaints against an officer were
determined to be "not sustained" or "unfounded," just as with the prior complaints against
Defendant McGowan. 3
Notably, in Watson, the court was struck by the similarity of the prior complaints and the
case before it. Watson, 2017 WL 1001122 at *18 ("The complaints ... describe [the officer] using
his position ... to harass others through, inter alia, traffic stops. The misconduct alleged in the
instant matter is, essentially, that [the officer] used his position as an officer to harass [plaintiffJ
by fabricating a tip that would result in a traffic stop."). Here as well, the Court is struck by the
similarity of the conduct in the prior complaint and the facts before the Court. Defendant
McGowan was investigated by the CPD for entering a home without a warrant, injuring a resident,
and arresting that resident for disorderly conduct without probable cause. Here, the Plaintiff
alleges that Defendant McGowan entered her home without a warrant, injured her, and then
arrested her without probable cause. Furthermore, here, as opposed to Watson and Doe-4, Plaintiff
presented not only the prior complaints but also a detailed internal interim report, the Tillman
Memo, that recommended finding that Defendant McGowan had arrested an individual without
probable cause. 4

3

Defendants argue that in both Doe and Watson there was more than one prior complaint, whereas
here the Court focused on the single complaint regarding the alleged unlawful entry and arrest.
However, Defendant McGowan's file included four prior complaints, including the investigation
discussed at length above. (Dkt. No. 120 at 38.) While two of the complaints dealt with misuse
ofleave, Plaintiff was also suspended by the CPD for improperly altering a ticket to a higher charge

based on a driver's attitude. (Dkt. No. 79-19.)
4

Defendants further argue that the Tillman Memo is irrelevant since it did not find any evidence
to support the allegation that McGowan pushed the resident down stairs. However, the Tillman
Memo did recommend finding that Defendant McGowan arrested the resident without probable
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Finally, Defendants argue that the Defendant City had no knowledge of these misconduct
complaints because they were with a prior employer, the CPD, and the Defendant City met state
and national standards in hiring McGowan. Defendants, however, ignore the fact that their internal
hiring policies, North Charleston Police Department Policy # A - 28, titled "Selection Process,"
requires the Defendant City to conduct a background investigation, which includes "verification
of work history and evaluation of work record ...." (Dkt. No. 141-2 at 2) (emphasis added).
Defendants have not presented any evidence demonstrating that the policy, requiring "evaluation
of work record," did not require the Defendants to actually review her work record from prior
employers, and there is no evidence in the record that the Defendant City actually retrieved or
evaluated any prior work records. Therefore, there is a dispute of material facts regarding whether
the Defendant City, based on their hiring policy, should have known about the Tillman Memo and
the prior complaints, and therefore summary judgment remains inappropriate for Plaintiffs fifth,
sixth and seventh causes of action for negligent hiring, supervision and retention

IV.

Conclusion
For the reasons above, Defendant's motion for reconsideration (Dkt. No. 177) is DENIED.

AND IT IS SO ORDERED.

Richard Mark Ge gel
United States Dist ·ct Court Judge
October 2-l,, 2018
Charleston, South Carolina

cause, which is relevant to the false imprisonment claim against Defendant McGowan that
survived summary judgment. (Dkt. No. 171 at 11.)

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