Assa'ad-Faltas v. Richland County Sheriff's Department et al

Filing 169

ORDER adopting 120 Report and Recommendation, granting in part and denying in part 105 Motion for Summary Judgment. Signed by Honorable Mary Geiger Lewis on 2/17/2021. (cbru, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
MARIE ASSA’AD-FALTAS, MD, MPH,
Plaintiff,

§
§
§
vs.
§
§
RICHLAND COUNTY SHERIFF’S
§
DEPARTMENT, as employer of Deputy
§
Pierce/Pearce; LEON LOTT, officially as
§
Sheriff of Richland County, South Carolina for §
injunctive relief; FORMER RCSD DEPUTY §
PIERCE/PEARCE, individually for damages; §
and all their subordinates and/or agents who §
did and/or intended to injure Plaintiff,
§
Defendants.
§
§

Civil Action No. 3:18-00578-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION
Plaintiff Marie Assa’ad-Faltas (Assa’ad), proceeding pro se, filed this action seeking

damages and an injunction against Defendants Richland County Sheriff’s Department (RCSD),
Richland County Sheriff Leon Lott (Lott), Former RCSD Deputy Pierce/Pearce (Pearce), and “all
their subordinates and/or agents who did and/or intend to injure Plaintiff” (collectively,
Defendants), alleging a number of violations under 42 U.S.C. § 1983 and several state law claims
brought pursuant to the South Carolina Tort Claims Act (SCTCA). The matter is before the Court
for review of the Report and Recommendation (Report II) of the United States Magistrate Judge

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suggesting Defendants’ motion for summary judgment as to Assa’ad’s state law claims be granted
in part and denied in part. The Report II was made in accordance with 28 U.S.C. § 636 and Local
Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to the Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report to which a specific objection is made, and the Court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Court need not conduct a de
novo review, however, “when a party makes general and conclusory objections that do not direct
the court to a specific error in the [Magistrate Judge’s] proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

II.

FACTUAL AND PROCEDURAL HISTORY
The present action arises out of an interaction between Assa’ad and Pearce on February 29,

2016. Pearce, a senior deputy with the RCSD, traveled to Assa’ad’s apartment complex (Austin
Woods) to serve a court order directing her to show cause why she should not be evicted (show
cause notice). Pearce, in uniform and driving his marked patrol car, brought Officer Sean Kilcoyne
(Kilcoyne) as a witness.
Pearce parked his patrol car outside of Austin Woods and waited for Assa’ad to arrive.
Assa’ad entered Austin Woods and continued driving into a cul-de-sac past her apartment building.
Assa’ad contends she drove past her apartment building and into a cul-de-sac “to be sure there
[were] no drunk people or wild animals . . . .” Mot. to Am. Assa’ad’s Compl., Ex. 2 at p.12.

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Pearce followed Assa’ad into Austin Woods, parked his patrol car in front of her apartment
building and stepped out. Pearce did not follow Assa’ad into the cul-de-sac.
Assa’ad circled around the cul-de-sac and proceeded to drive back to the entrance of Austin
Woods to retrieve her mail at the communal mailboxes. As Assa’ad passed Pearce—who remained
in front of Assa’ad’s apartment building standing next to his patrol car—on her way to the entrance
of Austin Woods to retrieve her mail, Pearce purportedly called for her to stop. Assa’ad counters
she did not hear Pearce give the instruction to stop her car and properly and lawfully drove past
him. Pearce alleges Assa’ad drove her car directly at him in an attempt to strike him, an allegation
Assa’ad denies. As soon as Assa’ad passed Pearce on her way towards the entrance of Austin
Woods, Pearce returned to his patrol car, followed Assa’ad, and activated his blue lights. Assa’ad,
in response, pulled over her car.
Pearce asserts he stopped Assa’ad’s car for two traffic violations, arguing she attempted to
run over him with her car and her vehicle was in violation of a county noise ordinance. Assa’ad
disputes both allegations. During this traffic stop interaction, Pearce failed to give Assa’ad a
citation for either purported traffic violation, merely serving her with the show cause notice.
On April 25, 2016, the Richland County Magistrate Court (Magistrate Court) held a hearing
concerning Assa’ad’s show cause notice, and Pearce testified regarding the above-referenced
February 29, 2016, incident at Austin Woods and stated he effectuated a traffic stop on Assa’ad
due to her attempt to run him over at her apartment complex. At this hearing, Pearce declined to
opine as to the alleged noise related issues with Assa’ad’s vehicle. Accordingly, Assa’ad avers
Pearce perjured himself at the hearing by testifying she attempted to run him over with her car.
After the hearing, Assa’ad contacted the Magistrate Court and attempted to procure a video
recording of the hearing. According to Assa’ad, in response to her inquiry, “I received a

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threatening letter from that court and had to ask Legal Aid, which had closed my case, to get that
CD [of the video recording of the hearing] for me instead. . . . I sincerely believe Defendants were
behind the court’s threatening [me] with contempt for seeking that CD.” Assa’ad Aff., Assa’ad’s
Resp. in Opp’n to Defs.’ Mot. for Summ. J. Ex. 1 at ¶¶ 7–8.
Defendants previously filed a motion for summary judgement whereby they sought
dismissal of all of Assa’ad’s Section 1983 and state law claims. The Magistrate Judge, in her July
19, 2019, Report (Report I), recommended all Section 1983 claims be dismissed and the Court
decline to exercise supplemental jurisdiction over the state law claims.
Upon a review of Report I, the Court declined to adopt the Magistrate Judge’s
recommendation regarding Assa’ad’s Section 1983 claim against Pearce for allegedly violating
her Fourth Amendment rights by effectuating a traffic stop without legal justification and denied
Defendants’ motion for summary judgment as to that claim. The Court adopted the Magistrate
Judge’s recommendation as to Assa’ad’s other Section 1983 claims and granted Defendants’
motion for summary judgment as to those claims. Lastly, because Assa’ad’s Fourth Amendment
claim remained, the Court retained jurisdiction over the state law claims.
Defendants subsequently filed the instant motion and asked the Court for summary
judgment as to the following South Carolina state law claims asserted by Assa’ad: (1) false
detention, which the Magistrate Judge construed as false arrest or imprisonment, against Lott; (2)
civil conspiracy against all Defendants, (3) intentional infliction of emotional distress (IIED)
against all Defendants, (4) defamation against all Defendants, and (5) attempted malicious
prosecution and “tortious interference with [Assa’ad’s] civil rights and rights to obtain and give
evidence” against all Defendants. Compl. ¶ 19. Additionally, Defendants argued Lott is entitled

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summary judgment on all of the state law claims against him on the basis of absolute sovereign
immunity under the SCTCA.
The Magistrate Judge, in her August 3, 2020, Report II, recommended the Court (1) deny
Lott’s motion as to the false arrest or imprisonment claim, (2) grant Defendants’ motion as to the
civil conspiracy claim, (3) grant Defendants’ motion as to the IIED claim, (4) grant Defendants’
motion as to the defamation claim, (5) grant Defendants’ motion as to the attempted malicious
prosecution and “tortious interference with her civil rights and rights to obtain and give evidence”
claim, and (6) deny Lott’s motion as to the absolute sovereign immunity defense. Assa’ad filed
Objections on August 20, 2020, and Defendants filed a single Objection on August 24, 2020. The
Court has reviewed the Objections and holds them to be without merit. It will therefore enter
judgment accordingly.

III.

DISCUSSION AND ANALYSIS
The Court will address Defendants’ single Objection first. Defendants object to the

Magistrate Judge’s recommendation the false imprisonment claim against Lott should survive their
motion for summary judgment.

“False arrest in South Carolina is also known as false

imprisonment.” Carter v. Byrant, 838 S.E.2d 523, 527 (S.C. Ct. App. 2020).
Defendants, in their Objection, concede their previous argument regarding Assa’ad’s
alleged attempt to hit Pearce with her car is a disputed factual matter and instead raise a new legal
theory to justify Pearce’s pulling over of Assa’ad in Austin Woods. See Defs.’ Obj. at 2 fn.1
(“Defendants recognize that the issue of [Assa’ad] attempting to strike [Pearce] with her car is a
disputed factual matter. . . . [Defendants] instead [raise] a separate legal basis regarding reasonable
suspicion for the stop.”).

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Defendants argue Pearce had reasonable suspicion to effectuate the traffic stop and
probable cause to charge Assa’ad with violating S.C. Code Ann. § 16-9-320(A). S.C. Code Ann.
§ 16-9-320(A) provides “It is unlawful for a person knowingly and willfully to oppose or resist a
law enforcement officer in serving, executing, or attempting to serve or execute a legal writ or
process . . . .”
In support of Defendants’ argument, they posit Assa’ad’s act of driving past Pearce towards
the exit of Austin Woods once she saw him in uniform in front of her apartment with papers in
hand and allegedly calling on her to stop—in addition to her lengthy and well-documented history
with the South Carolina Court system over the last twenty years—subjectively demonstrated to
Pearce “that [Assa’ad] had no intention of stopping her car to be served with the show cause
notice.” Defs.’ Obj. at 7.
Consequently, Defendants “submit that at the moment [Ass’ad] failed to stop and continued
driving [towards the exit of Austin Woods and away from Pearce], Pearce had articulable,
reasonable suspicion to believe that she was knowingly disregarding his instructions and
circumventing being served with process [in violation of S.C. Code Ann. § 16-9-320(A)].” Defs.’
Obj. at 6 (footnote omitted).
Although the Magistrate Judge, in Report II, noted “the Court has [previously] rejected
Defendants’ arguments, holding whether Pearce had legal justification to stop Assa’ad is a ‘factual
dispute to be resolved by a jury’”, her reasoning concerned Defendants’ at-the-time argument as
to the alleged vehicular noise violation of Assa’ad’s car. Report II at 10 (quoting Mar. 19, 2020,
Order). Because Defendants’ failed to raise this new S.C. Code Ann. § 16-9-320(A) argument in
their motion for summary judgment as to Assa’ad’s false imprisonment claim, Report II provides
no analysis on this new legal theory.

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To prevail in a false imprisonment claim in South Carolina, a plaintiff must prove “(1) the
defendant restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was
unlawful.” Law v. South Carolina Dep’t of Corrections, 629 S.E.2d 642, 651 (S.C. 2006).
Assa’ad’s false imprisonment claim turns on the third element of the tort, whether her
restraint was lawful. Accordingly, the dispositive issue before the Court is whether Pearce had
reasonable suspicion to believe Assa’ad knowingly and intentionally resisted his efforts and
attempts to serve the show cause notice in violation of S.C. Code Ann. § 16-9-320(A).
At this summary judgment stage, Assa’ad’s and Pearce’s vastly different statements as to
the events at Austin Woods create questions of fact for a jury to decide. See Jones v. City of
Columbia, 389 S.E.2d 662, 663 (S.C. 1990) (“South Carolina follows the minority rule that the
issue of probable cause is a question of fact and ordinarily one for the jury.”). Accordingly, the
Court overrules Defendants’ single Objection.
Assa’ad raises four Objections, and the Court will now turn to them. In Assa’ad’s first
Objection, she objects to the wording of the Magistrate Judge’s recommendation the Court deny
Defendants’ request Lott be entitled to absolute sovereign immunity from Assa’ad’s tort claims
because his deputy’s actions were not within the type of exceptions to the general waiver of
governmental immunity found in the SCTCA.
In particular and notwithstanding the fact the Magistrate Judge’s recommendation is
favorable to Assa’ad, she requests the Court “issue a public-policy-incorporating reasoning for
accepting or rejecting political-subdivision immunity beyond the R&R summary ‘rejection’ of
[Assa’ad]’s position [that the SCTCA is not applicable to her state-law claims because South
Carolina is constitutionally powerless to make Richland County sovereign].” Assa’ad’s Obj. at 5.

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In this Objection, Assa’ad fails to direct the Court to a specific error in the Magistrate
Judge’s Report II as to her analysis on this issue. See Orpiano, 687 F.2d at 47 (“Courts have also
held de novo review to be unnecessary in analogous situations when a party makes general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.”).

Consequently, inasmuch as the Court agrees with the

Magistrate Judge’s recommendation Lott be unentitled, under the SCTCA, to absolute sovereign
immunity from Assa’ad’s tort claims because his liability arises “from Pearce allegedly stopping
[Assa’ad] without legal justification and thereafter” intentionally misstating his reasons for doing
so, the Court will overrule this Objection. Report II at 9.
Turning to Assa’ad’s second Objection, she disagrees with the Magistrate Judge’s
recommendation the Court grant Defendants’ motion for summary judgment as to her civil
conspiracy claim. Specifically, Assa’ad contends she “ha[s] no duty to counter [Defendants’] total
absence of evidence [proving the lack of a conspiracy] with evidence of her own, [e]specially that
she ha[s] been denied discovery.” Id.
As noted by the Magistrate Judge, “[Assa’ad’s] conspiracy claim is grounded in two
allegations.” Report II at 11. First, Assa’ad contends “[Pearce] conspired with others to falsely
testify [at the April 25, 2016, hearing in Magistrate Court] that he had absolutely informed
[Assa’ad] that he had stopped her [at Austin Woods] because she had tried to run him over with
her car.” Compl. ¶ 10 (internal quotations omitted). And, second, Assa’ad argues “[Pearce]
conspired with other[s] to deny/delay [Assa’ad] access to a copy of the defendant-made video and
a copy of the court-made audio of his [April 25, 2016][,] testimony [at Magistrate Court].” Id.
¶ 11.

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The Magistrate Judge, in Report II, noted Assa’ad “has failed to carry her burden to defeat
Defendants’ motion for summary judgment [as to her first civil conspiracy claim]” and “[s]imilar
to [Assa’ad]’s previous allegation [of civil conspiracy], the record is devoid of any evidence
supporting this [second] allegation.” Report II at 12–13.
Here, in this Objection, Assa’ad fails to present any evidence supporting her conspiracy
allegations, and she is unable, as a matter of law, to carry her burden as a plaintiff asserting civil
conspiracy claims against Defendants. See generally Vaught v. Waites, 387 S.E.2d 91, 95 (S.C.
Ct. App. 1989) (“Lastly, there is no genuine issue of material fact involved because the record is
devoid of any evidence suggesting a conspiracy.”). Inasmuch as the Court agrees with the
Magistrate Judge’s recommendation the Court should grant Defendants’ motion for summary
judgment as to Assa’ad’s conspiracy claim, it need not address Assa’ad’s contention Defendants’
use of the intracorporate conspiracy defense is improper.
Accordingly, summary judgment as to Assa’ad’s civil conspiracy claim is appropriate.
Therefore, the Court will overrule this Objection.
In Assa’ad’s third Objection, she posits the Magistrate Judge improperly determined
evidence in the record “does not support a finding of intentional infliction of emotional distress.”
Assa’ad’s Obj. at 6 (quoting Report II at 15). Assa’ad maintains Defendants knew of her fear of
law enforcement and intentionally tried to exploit those fears during the Austin Woods incident.
Also, Assa’ad argues she lives in constant fear of being “falsely arrested and prosecuted” for a
multitude of crimes arising from the traffic stop, including the attempted murder of Pearce,
resisting arrest, reckless driving, noise ordinance violations, and “any other crimes [Defendants]
may dream up in [their] unending pursuit of non-existent probable cause.” Id. (internal quotation
omitted).

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To prove a prima facie case of IIED, a plaintiff must establish four elements:
(1) the defendant intentionally or recklessly inflicted severe
emotional distress, or was certain, or substantially certain, that
such distress would result from his conduct;
(2) the conduct was so extreme and outrageous so as to exceed all
possible bounds of decency and must be regarded as atrocious,
and utterly intolerable in a civilized community;
(3) the actions of the defendant caused plaintiff’s emotional distress;
and
(4) the emotional distress suffered by the plaintiff was severe and
such that no reasonable man could be expected to endure it.
Hansson v. Scalise Builders of South Carolina, 650 S.E.2d 68, 70 (S.C. 2007) (quoting Ford v.
Hutson, 276 S.E.2d 776, 778 (S.C. 1981)) (internal quotations omitted). A heightened burden of
proof exists for the second and fourth elements. See id. at 71 (quoting Ford, 276 S.E.2d at 778)
(“In Ford, the Court emphasized the heightened burden of proof articulated in the second and
fourth elements of the tort, insisting that in order to prevail in a tort action alleging damages for
purely mental anguish, the plaintiff must show that both the conduct on the part of the defendant
was “extreme and outrageous,” and that the conduct caused distress of an “extreme or severe
nature.”).
Additionally the Hansson court opined:
Under the heightened standard of proof for emotional distress claims
emphasized in Ford [which draws heavily from the Restatement
(Second) of Torts], a party cannot establish a prima facie claim for
damages resulting from a defendant’s tortious conduct with mere
bald assertions. To permit a plaintiff to legitimately state a cause of
action by simply alleging, “I suffered emotional distress” would be
irreconcilable with this Court’s development of the law in this area.
Id. at 72.
The Magistrate Judge, in Report II, proclaimed no evidence provided by Assa’ad supports
her contention Defendants knew of her alleged fear of law enforcement and perpetually acted to
exacerbate those fears during Pearce’s visit to Austin Woods (element one). Also, the Magistrate
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Judge noted Assa’ad fails to provide evidence that Defendants’ conduct at Austin Woods rises to
the level of conduct so extreme and outrageous so as to exceed all possible bounds of decency
(element two).
Here, Assa’ad’s mere bald assertions Defendants knew of her alleged fear of law
enforcement and attempted to rekindle those fears through service of the show cause notice is
insufficient to demonstrate conduct so extreme and outrageous so as to exceed all possible bounds
of decency. And, Assa’ad’s contention she lives in constant fear of future charges relating to her
traffic stop may also be categorized as mere bald assertions.
Furthermore, Assa’ad also “fail[s] to provide any legally sufficient evidence in this case to
show that [her] emotional distress was ‘severe’ within the contemplation of [South Carolina’s]
mental anguish jurisprudence.” Hansson, 650 S.E.2d at 72.
Accordingly, summary judgment is appropriate as to Assa’ad’s claim of IIED, and the
Court will overrule this Objection.
Lastly, in Assa’ad’s fourth Objection, she argues the Magistrate Judge “incorrectly reads
the text, spirit[,] and purpose of [S.C. Code Ann.] § 16-9-50 [as it relates to her defamation claim].”
Assa’ad’s Obj. at 6 (capitalization and emphasis modified). In particular, Assa’ad, in her response
in opposition to Defendants’ motion for summary judgment, argues Section 16-9-50 provides her
a right to monetary recovery for allegedly defamatory statements made by Pearce under oath in
the April 25, 2016, Magistrate Court hearing.
The Magistrate Judge, in Report II, opined:
[Assa’ad]’s invocation of S.C. Code Ann. § 16-9-50 does not assist
her. This statute concerns disposition of fines related to a finding of
perjury and provides that a “person as shall be aggrieved, hindered
or molested by reason of the offense [of perjury] will sue for the
same by action in any court of competent jurisdiction.” [Assa’ad]’s

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instant claim is one for defamation, she is not able to bring a claim
for perjury, and Defendants have not been found guilty of perjury.
Report II at 18, fn 11. Inasmuch as Defendants have not been found guilty of perjury, the
Court, as a matter of law, must overrule this Objection.
After a thorough review of Report II and the record in this case pursuant to the standards
set forth above, the Court overrules Defendants and Assa’ad’s Objections, adopts Report II, and
incorporates it herein.
Therefore, it is the judgment of the Court Defendants’ motion for summary judgment is
GRANTED IN PART and DENIED IN PART. Specifically, Defendants’ motion is GRANTED
as to Assa’ad’s civil conspiracy, IIED, defamation, attempted malicious prosecution and tortious
interference with her civil rights and rights to obtain and give evidence claims; and the motion is
DENIED as to Assa’ad’s false imprisonment claim and Lott’s absolute sovereign immunity
defense.
IT IS SO ORDERED.

Columbia, South Carolina
February 17, 2021

s/Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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