Mayo et al v. South Carolina, State of et al

Filing 48

ORDER denying Plaintiffs' 43 MOTION to Amend/Correct Complaint and Plaintiff's 45 MOTION to Amend/Correct Complaint. Signed by Magistrate Judge Shiva V Hodges on 5/13/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Mr. Ray Mayo, #363744, and Mrs.
Certoya Mayo,
Plaintiffs,
vs.
State of South Carolina; Sumter County
Sheriff’s Dept.; Officer Sgt. Jason
Tassone; and Officer Sgt. Treyor
Brown,
Defendants.

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

C/A No.: 3:15-2698-JMC-SVH

ORDER

Ray Mayo (“Mayo”), an inmate incarcerated at the Manning Correctional
Institution, and his wife, Certoya Mayo (“Mrs. Mayo) (together “Plaintiffs”), proceeding
pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983. In their
original complaint, Plaintiffs sued the State of South Carolina (the “State”), Sumter
County Sheriff’s Department (“SCSD”), and SCSD officers Sgt. Jason Tassone
(“Tassone”) and Sgt. Treyor Brown (“Brown”), alleging a violation of their constitutional
rights. This matter is before the court on Plaintiffs’ motions to amend the complaint.1
[ECF Nos. 43, 45]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ.
Rule 73.02(B)(2)(d) (D.S.C.), all pretrial proceedings have been assigned to the
undersigned.
1

Although the motions are signed only by Mayo, the undersigned refers to the motions as
brought by both Plaintiffs in this order for ease of reference. Plaintiffs are hereby advised
that any motion brought on both of their behalves should be signed by both. While 28
U.S.C. § 1654 allows individuals to “plead and conduct their own cases personally,” the
statute does not extend that right to represent other parties.

I.

Factual and Procedural Background
In their original complaint, Plaintiffs alleged that on June 23, 2013, Tassone

stopped their vehicle for traveling 76 mph in a 70 mph zone. [ECF No. 1 at 3]. Plaintiffs
claimed Tassone ordered them to exit their vehicle, asked a series of improper questions,
and conducted a full search of their persons and vehicle, including searching passenger
Mrs. Mayo’s personal effects. Id. Plaintiffs alleged Tassone unlawfully seized a gold
necklace worth $2800 and a gold watch worth $3000 during his search. Id. at 4. Plaintiffs
argued the search was unlawful and without probable cause. Id. at 3. Plaintiffs alleged
they continued to be detained after the completion of the traffic stop and argue this was a
violation of their right to privacy. Id. at 4. Plaintiffs claimed Brown unlawfully obtained a
warrant for Plaintiffs’ arrest without probable cause. Id. In a Report and
Recommendation dated November 17, 2015 (“R&R”), the undersigned recommended the
complaint be dismissed as to the State and SCSD. That R&R remains pending.
II.

Discussion
On March 21, 2016 and March 28, 2016, Plaintiffs submitted motions to amend

the complaint [ECF Nos. 43, 45]. The first motion to amend seeks to add Sr. Cpl
Rulongs (“Rulongs”). [ECF No. 43]. The motion noted that a K-9 searched the car and
drugs were found in the back seat of Plaintiffs’ car, id. at 2, and that Mayo was arrested
for “Drugs/Trafficking in Heroin, Morphine, etc 28 grams or more,” id. at 5. The motion
contains the following allegations against Rulongs: “[Plaintiffs] were then placed in a
police cruiser driven by Sr. Cpl. Rulongs. During the transport to SLRDC, Sr. Cpl.
Rulongs made several comments of criticism toward Mrs. Mayo.” Id. The motion states

2

that public defender Elaine Cook (“Cook”) was initially appointed to represent Mayo and
that she was replaced by public defender Jacob E. McFadden (“McFadden”). In the
motion, Mayo notes that he pled guilty to the charge and accepted a three-year sentence,
with no charges against Mrs. Mayo. Id. at 7.
Plaintiffs’ second motion to amend seeks to add Sumter County Sheriff’s
Department supervisor Anthony Dennis (“Dennis”) and Sumter County Public
Defender’s Office supervisor Jack Howell (“Howell”) to assert claims against them for
supervisory liability. [ECF No. 45].
“[L]eave [to amend] shall be freely given when justice so requires.” Fed. R. Civ.
P. 15(a). “A motion to amend should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving party,
or the amendment would be futile.” HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th Cir.
2001) (internal quotation marks omitted).
Plaintiffs seeks to assert a claim against Rulongs. Fed. R. Civ. P. 8(a)(2) provides
that a complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Although the court must liberally construe a pro se
complaint, the Supreme Court has made clear that a plaintiff must do more than make
conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677–78
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, a plaintiff
must affirmatively show that a defendant acted personally in the deprivation of his
constitutional rights. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). The
complaint must contain sufficient factual matter, accepted as true, to state a claim that is

3

plausible on its face and the reviewing court need only accept as true the complaint’s
factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678–79; Twombly, 550
U.S. at 555, 570. The motion to amend the complaint provides no factual allegations to
demonstrate any personal involvement by Rulongs in Mayo’s search or arrest. The
motion merely notes that Rulongs drove a police cruiser in which Plaintiffs were placed
and allegedly made several comments of criticism toward Mrs. Mayo. Having failed to
articulate any plausible claim against Rulongs, amendment of the complaint to add him as
a defendant would be futile. Therefore, Plaintiffs’ motion to amend is denied as to
Rulongs.
To the extent that Plaintiffs attempt to state claims against Cook and McFadden in
their capacity as public defenders, such an attempt is futile. To state a cause of action
under 42 U.S.C. § 1983, a plaintiff must allege that: (1) the defendants deprived him of a
federal right, and (2) did so under color of law. See Gomez v. Toledo, 446 U.S. 635, 640
(1980). However, a criminal defense attorney, whether retained or appointed, does not act
under color of state law, which is a jurisdictional prerequisite for any civil action brought
under § 1983. See Polk County v. Dodson, 454 U.S. 312, 317–24 nn. 8–9, 12–14 (1981).
Thus, as public defenders, Cook and McFadden are not amenable to suit and would be
entitled to summary dismissal. Therefore, Plaintiffs’ motion to amend is denied as to
Cook and McFadden.
Plaintiffs’ claims against Dennis and Howell are based on respondeat superior in
their roles as supervisors in the sheriff’s department and the public defender’s office,
respectively. Such claims are futile, as they do not give rise to a § 1983 claim. Monell v.

4

Dep’t of Soc. Servs., 436 U.S. 658, 691‒94 (1978). Moreover, “[b]ecause vicarious
liability is inapplicable to [] § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiffs provide insufficient
factual allegations to demonstrate that Dennis and Howell were aware of, or deliberately
indifferent to, any constitutional risk of injury to Plaintiffs. See Carter v. Morris, 164
F.3d 215, 221 (4th Cir. 1999) (outlining the requirements to hold a supervisor liable for
constitutional injuries inflicted by their subordinates). Plaintiffs’ motion to amend is
denied as to Dennis and Howell.
III.

Conclusion
For the foregoing reasons, the undersigned denies Plaintiffs’ motions to amend the

complaint [ECF Nos. 43, 45].
IT IS SO ORDERED.

May 13, 2016
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

5