Jane Doe 202a v. McGowan et al
ORDER and OPINION adopting 33 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 8 Motion to Dismiss. The Court GRANTS the Senn Defendants' motion to dismiss. This Order has no effect on any claims in the parallel action (Jane Doe 202a v. Cannon et ai., 2: 16cv-00530-RMG-MGB). Signed by Honorable Richard M Gergel on 2/13/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Jane Doe 202a,
Leigh Ann McGowan, individually;
Charles Francis Wholleb, individually;
Anthony M. Doxey, individually;
Michael Kouris, individually;
City of North Charleston;
Sandra J. Senn;
Senn Legal, LLC; and
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. 33) recommending that the Court grant with prejudice Defendants
Sandra J. Senn and Senn Legal, LLC's motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (Dkt. No.8.) Plaintiff filed objections to the R. & R. on January 23,
2017, and Defendants Sandra 1. Senn and Senn Legal, LLC (the "Senn Defendants") filed a
reply. (Dkt. Nos. 35, 37.) This Court adopts the R. & R. as the order of the Court and grants
Defendants Sandra J. Senn and Senn Legal, LLC's motion to dismiss. (Dkt. No.8.)
Plaintiff has brought causes of action against the Senn Defendants under 42 U.S.C. §
1983 and for defamation under state law. (Dkt. No.1
227-232, 246-258.) Plaintiff has brought
a related case against the Senn Defendants and others (Jane Doe 202a v. Cannon et ai., 2: 16-cv00530-RMG-MGB) and concedes that the defamation claims brought against the Senn
Defendants here are the same as the claims in that suit. Plaintiff filed the same set of objections
referenced below to the Senn Defendants' motion to dismiss in that parallel case. Some of
Plaintiffs objections in that document are only applicable to Magistrate's Report and
Recommendation for the Senn Defendants' motion to dismiss in that case.
Plaintiff alleges that she was wrongfully arrested in her home for assaulting a police
officer in violation of a North Charleston City Ordinance after a warrantless intrusion into her
home on March 27, 2014. (Dkt. No.1.) Plaintiff alleges multiple violations of her constitutional
rights in connection with the warrantless entry and arrest.
Plaintiff alleges that Sandra J. Senn is a private citizen and Senn Legal, LLC is a
domestic for-profit limited liability corporation with Sandra 1. Senn as its principal. (ld. ~~5-7.)
In 2014, the City of North Charleston and Defendants McGowan, Wholleb, Doxey, and Kouris
hired the Senn Defendants to defend them in a legal action brought by the Plaintiffs mother. I
140.) After retaining the Senn Defendants, the City of North Charleston and Defendants
McGowan, Wholleb, Doxey, and Kouris "began a series of retaliatory acts against" the Plaintiff
and her mother. (ld.
141.) Plaintiff alleges that Sandra J. Sennjoined the other Defendants in
retaliation by defaming the Plaintiff in writing. (ld.) Plaintiff alternatively alleges that Defendant
Senn acted on her own behalf. (Id.
Plaintiff alleges that the Senn Defendants falsely accused her of criminal acts, falsely
denied that she sustained constitutional abuses, and disparaged Plaintiff to third persons in
143.) Plaintiff alleges that Sandra J. Senn defamed Plaintiff both personally and on
behalf of her clients. (ld.
246-58.) Plaintiff alleges that, because she asserted her rights,
Defendant Senn wrote to third parties accusing the Plaintiff of lying, falsely reporting a crime
Plaintiff's mother was left alone at the home when Plaintiff was arrested.
against her, felonious abuse of a vulnerable adult (her mother), and other misconduct. (ld. ~ 250.)
Plaintiff alleges Defendant Senn defamed Plaintiff with actual malice. (Id ~~ 255-256.) Plaintiff
alleges that Defendant Senn allowed Defendant McGowan to give false testimony in a
deposition. (ld. ~ 256.) Plaintiff also alleges Defendant Senn is liable under § 1983 for actions
she took on behalf of her clients that infringed on Plaintiffs constitutional rights. (ld. ~~ 227
On a motion to dismiss under Rule 12(b)(6), a "complaint must be dismissed if it does not
allege 'enough facts to state a claim to relief that 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,
570 (2007». "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) ... [a court]
must determine 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 F.3d 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.1993».
a. Defamation Claims
For the reasons listed in the R. & R., Plaintiffs defamation claims in this action are
precluded as impermissible claim splitting since they are duplicative. Plaintiff has conceded that
the defamation claims in this action are the same as the defamation claims in another lawsuit in
front of this Court. See Jane Doe 202a v. Cannon et al., 2: 16-cv-00530-RMG-MGB, Dkt. No. 31
at 11. 44[A] first lawsuit will bar a second lawsuit when there is: (i) 'an identity of the cause of
action in both the earlier and the later suit; and [(ii)] an identity of parties or their privies in the
two suits.'" Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014 WL 2434636, at *10 (D.S.C. May
28,2014) (quoting Pueschel v. United States, 369 F.3d 345, 354-55 (4th Cir.2004)).
i. Plaintiff's Objections to the Magistrate's Recommendation
Plaintiff has filed specific objections to the Magistrate's R. & R. Plaintiff has not
specifically objected to the Magistrate's recommendation that the Court dismiss the defamation
claims in this action because they are duplicative of the defamation claims in Jane Doe 202a v.
Cannon et al., 2:16-cv-00530-RMG-MGB. For this reason, the Court dismisses Plaintiff's
defamation claims in this action. 2
b. 42 U.S.C. § 1983 Claim
To state a claim pursuant to 42 U.S.C. § 1983, Plaintiff must allege (1) that he or she "has
been deprived of a right, privilege or immunity secured by the Constitution or laws of the United
States," and (2) "that the conduct complained of was committed by a person acting under color
of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th
Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635,540 (1983); Hall
v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In a § 1983 action, "liability is personal,
based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402
(4th Cir. 2001).
For the reasons listed in the R. & R., Plaintiff has failed to state a claim against Sandra J.
Senn under 42 U.S.C. § 1983 because Defendant Senn was not a state actor when she acted on
At footnote 3 of her objections, Plaintiff objects to the Magistrate's claim splitting findings as to the
Senn Defendants' § 1983 liability, but the Magistrate only recommended that this Court dismiss the
defamation claims against the Senn Defendants in this action based on claim splitting.
behalf of her clients. Plaintiff has not alleged facts to show that Defendant Senn acted under
color of state law in any way. A private attorney representing state actors does not act under
color of state law for § 1983 purposes. Jenkins v. McDonald Patrick Poston Hemphill & Roper
LLC, et al., No. 5:14-cv-04498-RMG-KDW at *3 (D.S.C. Feb. 5, 2015) Rep't &
Recommendation adopted, No. 5: 14-cv-04498-RMG-KDW at *3 (D.S.C. Mar. 3, 2015) (citing
Limehouse v. Delaware, 144 F. App'x 921, 923 (3d Cir. 2005)).
i. Plaintiffs Objections to the Magistrate's Recommendation
Plaintiff has filed objections to the R. & R. (Dkt. No. 35.) 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).
Plaintiff has objected to the R. & R. insofar as it detennined that Defendant Senn was not a state
actor or acting under color of state law. Plaintiff reminds the court that the Complaint only
alleges that Defendant Senn's "capacity to act may have been on behalf of state actors, and to
that extent, she can be a state actor by acting on behalf of those state actors." (Dkt. No. 35 at 6.)
The law is too blunt to split that hair.
Plaintiff acknowledges that she has made no § 1983 claims against Defendant Senn in her
individual capacity. (Dkt. No 35 at 6.) To the extent Plaintiff is asking the Court to keep the
Defendant Senn in this lawsuit on a conspiracy theory (and Plaintiff has provided no legal
support for any other theory\ she has failed to meet her pleading burden to do so. Plaintiff
argues that if this litigation reveals that Defendant Senn played a role in destroying evidence, she
may have done so "in a representative capacity for state actors" so her actions "will bear on the
Second Cause of Action as part of the conspiracy allegations." (Dkt. No. 35 at 6.) Plaintiff can
bring a private attorney into a civil rights law suit on a conspiracy theory, Tower v. Glover, 467
Plaintiff cites only to Banks v. M u.s. C., 444 S.E.2d 519,521 (S.C. 1994) in her objections here. Banks
provides no support for Plaintiff's position.
U.S. 914, 919-20 (1984), but Plaintiff must allege that the private attorney was "a willful
participant in joint action with the state or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101
S.Ct. 183, 66 L.Ed.2d 185 (1980) (allegation that private persons conspired with judge in judicial
bribery scheme sufficient for § 1983 purposes). Plaintiff also must "assert facts from which this
Court could infer a conspiratorial agreement." Wiggins v. 11 Kew Garden Court, 497 F. App'x
262, 264 (4th Cir. 2012). A bare assertion of conspiracy is insufficient. Id. Plaintiff has not
alleged facts sufficient to indicate that Defendant Senn had an agreement with other defendants
acting under the color of state law to deprive Plaintiff of her rights. Plaintiff's allegation at, 256
of the Complaint that the Senn Defendants allowed Defendant McGowan to falsely testify that
she had not been deposed before when they had deposed her in a previous case does not indicate
to the Court that the Senn Defendants conspired with Defendant McGowan to deprive Plaintiff of
her constitutional rights in this case. (Dkt. No.1.)
For the reasons above, the Court GRANTS the Senn Defendants' motion to dismiss. This
Order has no effect on any claims in the parallel action (Jane Doe 202a v. Cannon et ai., 2: 16
AND IT IS SO ORDERED.
Richard Mark ergel
United States District Court Judge
February LS ,2017
Charleston, South Carolina
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