Washington v. Wilson et al

Filing 44

ORDER RULING ON REPORT AND RECOMMENDATION: the Court adopts the R&R 35 of the Magistrate Judge in part and rejects it in part. IT IS THEREFORE ORDERED that Defendants Alan Wilson, Wayne Allen Myrick, Jr., Megan Burchstead, a nd the Office of the South Carolina Attorney General's motion to dismiss (ECF No. 8 ) is GRANTED and that Plaintiff's claims again against those defendants are hereby DISMISSED with prejudice. Plaintiff's motion for leave to amend her complaint (ECF No. 10 ) is GRANTED IN PART and DENIED IN PART. Plaintiff shall have leave to file her amended complaint against Defendants John E. Follin, III, and the South Carolina Law Enforcement Division within FIFTEEN days. Signed by Honorable R Bryan Harwell on 9/24/2014. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Wilhelmina Washington,

)
)
Plaintiff,
)
)
v.
)
)
Alan Wilson, in his individual
)
capacity as Attorney General of the )
State of South Carolina, Wayne
)
Allen Myrick, Jr., in his individual )
capacity as Senior Assistant Deputy )
Attorney General, Megan Wines
)
Burchstead, in her individual
)
capacity as Assistant Attorney
)
)
General, John E. Follin, III, in his
individual capacity as Special Agent )
)
with the South Carolina Law
Enforcement Division, the Office of )
the South Carolina Attorney General, )
)
and the South Carolina Law
)
Enforcement Division,
)
)
Defendants.
)

Civil Action No.: 4:14-cv-00416-RBH

ORDER

This matter is before the Court after the issuance of a Report and Recommendation (“R&R”)
by United States Magistrate Judge Kaymani D. West.1 Plaintiff Wilhelmina Washington brought
this action for damages against numerous defendants alleging several claims pursuant to 42 U.S.C.
§ 1983 and the South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-10 to 220 (“SCTCA”).
Defendants Alan Wilson, Wayne Allen Myrick, Jr., Megan Burchstead, and the Office of the South
Carolina Attorney General (collectively, “SCAG Defendants”) filed a motion to dismiss pursuant
Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 8. Plaintiff, moreover, filed a

1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.),
this matter was referred to the Magistrate Judge for pretrial handling.

motion for leave to amend her complaint as to all Defendants, including the additional defendants,
Defendants John E. Follin, III and the South Carolina Law Enforcement Division (collectively,
“SLED Defendants”). ECF No. 10. The Magistrate Judge recommends that the Court grant the
motion and dismiss the SCAG Defendants on the basis that they are absolutely immune from suit.
As a result of this recommendation, the Magistrate Judge reports that Plaintiff’s motion for leave to
amend her complaint is moot and should, therefore, be dismissed. After a review of the Magistrate
Judge’s R&R in light of Plaintiff’s objections, the Court adopts the recommendation in part and
denies it in part.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed her complaint in the Court of Common Pleas of Florence County, South
Carolina, in January 2014. Defendants jointly removed the action to this Court on February 18,
2014. In her complaint, Plaintiff alleges fourteen separate causes of action, arising under both
federal constitutional law and South Carolina tort law. The motion to dismiss now before the Court
concerns the several causes of action filed against the SCAG Defendants—eight claims in all.
Plaintiff’s four SCTCA claims include abuse of process, intentional infliction of emotional distress,
civil conspiracy, and gross negligence/negligent supervision. Her four § 1983 claims are grounded
in the Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States.
Specifically, her constitutional claims allege misconduct of Defendant Burchstead relevant to two
trials of Plaintiff’s, both of which ended in a mistrial. The constitutional claims against the
remaining SCAG Defendants—Defendants Myrick, Wilson, and the Attorney General’s office
itself—cite their failure to train and to supervise properly Defendant Burchstead in the performance
of her prosecutorial duties as a result of prior allegations of prosecutorial misconduct.

2

The Magistrate Judge’s recitation of the facts in her R&R is sufficient; however, for the
purpose of this order, some facts are helpful.

Plaintiff, who was clerk for the Town of

Timmonsville municipal court, was accused by the State of South Carolina of forging the signature
of a municipal judge on several occasions, and the matter was prosecuted by the Office of the South
Carolina Attorney General (“Office”), specifically Defendant Burchstead.2

The gravamen of

Plaintiff’s complaint is alleged misconduct during a retrial of Plaintiff after a hung jury led to a
mistrial of the first trial. Specifically, Plaintiff avers several instances of misconduct manifesting
itself with the indictment of two additional counts resulting from what Defendant Burchstead
claimed to be new evidence.

Plaintiff, however, disputed the existence of new evidence,

characterized the prosecution as vindictive, and ultimately prevailed in an effort to quash the two
additional charges. The retrial also led to a hung jury and mistrial, after which the prosecution was
abandoned. Plaintiff now claims in this action that Defendant Burchstead and her supervisors
(Defendants Wilson and Myrick) used the prosecution as a means to coerce her to cooperate in a
larger investigation by the SLED Defendants. She alleges that the second trial was a retaliation by
Defendant Burchstead for Plaintiff’s asserting her right to a first trial and for attacking the
thoroughness of the investigation. And she supports those allegations with several statements
attributed to Defendant Burchstead, an allegation that the evidence to support the additional charges
was available prior to the original indictment, an allegation that a new investigation only
commenced when Plaintiff accused the prosecution of vindictiveness, and a previous lawsuit against
Defendant Wilson and the Office alleging a vindictive prosecution.
The SCAG Defendants argued, in large part, in their motion to dismiss that all of the claims
against them accuse them of misconduct in the prosecution of the case—their role as advocates.
2

While Defendant Burchstead conducted the lion’s share of the prosecution, Plaintiff alleges
that Defendant Myrick, at one time, made an appearance at a hearing on a motion.
3

For that reason, they argue that all of Plaintiff’s claims against them individually should be
dismissed because they are entitled to absolute immunity. Plaintiff responded to their argument,
characterizing the prosecution as an “admitted” investigative tactic. Plaintiff, moreover, argued that
her claims were adequately pled under federal pleading standards. Plaintiff, regardless, moved to
amend her complaint to clarify her claims, specifically her civil conspiracy claim. The Magistrate
Judge subsequently issued her R&R, reporting that the SCAG Defendants conduct was
prosecutorial and required the application of absolute immunity. She recommended granting the
motion and dismissing the eight claims applicable to the SCAG Defendants. Furthermore, the
Magistrate Judge reported that Plaintiff’s motion for leave to amend her complaint was moot.
Plaintiff filed timely objections to the Magistrate Judge’s R&R, and the SCAG Defendants
submitted a reply. The motions and the recommendation are now before this Court.
STANDARD OF REVIEW
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, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which 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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The right to
de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a party makes only
“general and conclusory objections that do not direct the [C]ourt to a specific error in the
[M]agistrate’s proposed findings and recommendations.” Id.

Moreover, in the absence of

objections to the R&R, the Court is not required to give any explanation for adopting the

4

recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
The Magistrate Judge recommends granting the SCAG Defendants’ motion to dismiss.
Specifically, the Magistrate Judge reports that the SCAG Defendants are each absolutely immune
from the § 1983 and the SCTCA claims alleged against them.

Moreover, because of her

recommendation, the Magistrate Judge recommends that the Court deny Plaintiff’s motion for leave
to amend her complaint on the basis that it is moot. In her objections, Plaintiff argues that the
Magistrate Judge erred in finding that Defendants Wilson, Myrick, and the Office are entitled to
absolute immunity.3 Plaintiff also argues that, in light of the erroneous recommendation, it is
premature for the Magistrate Judge to report that the determination of whether Defendants were in
fact acting in a prosecutorial or administrative capacity is not for the jury to decide. Plaintiff’s
objections, therefore, turn largely on whether Defendants Wilson and Myrick4 are absolutely

3

Notably, Plaintiff does not specifically object to the report of the Magistrate Judge
regarding Defendant Burchstead—that absolute immunity is applicable to her conduct prosecuting
Plaintiff. In fact, Plaintiff, in her objections, implies that Burchstead’s alleged misconduct is
prosecutorial in nature and would be absolutely immune under Imbler v. Pachtman, 424 U.S. 409
(1976). That is, Plaintiff recognizes her failure to train or to supervise claims against Defendants
Wilson and Myrick would likely fail under Van de Kamp v. Goldstein, 555 U.S. 335 (2009), but for
an allegation of similar prosecutorial misconduct raised in a previous civil action not involving
Plaintiff. Pl.’s Objs. 5, ECF No. 37. The Court shall explain the holding in Van de Kamp below.
4

The SCTCA claims involving the SCAG Defendants are all alleged against the Office in
light of S.C. Code Ann. § 15-78-70, which immunizes individual state officials acting within the
scope of their official duties. Along those lines, Plaintiff claims that the Office is vicariously liable
for the acts of Defendants Burchstead, Wilson, and Myrick. Additionally, Plaintiff asserts a § 1983
claim against the Office (Plaintiff’s Thirteenth Cause of Action). Although not addressed by the
Magistrate Judge in her R&R, this Court notes that the Office, an arm of the State of South
5

immune from the supervisory liability claims. Furthermore, Plaintiff argues that her motion for
leave to amend her complaint is not moot because, regardless of the dismissal of the SCAG
Defendants, the SLED Defendants remain.
I.

The SCAG Defendants’ Motion to Dismiss
The Magistrate Judge’s recommendation that the SCAG Defendants must be dismissed is

based on the doctrine of absolute immunity. Her recommendation specific to the conduct of
Defendants Wilson and Myrick relies on the United States Supreme Court’s decision in Van de
Kamp v. Goldstein, 555 U.S. 335 (2009). That case specifically touches on Plaintiff’s supervisory
claims alleged against Defendants Wilson and Myrick in their individual capacities as Defendant
Burchstead’s supervisors (and Defendant Wilson as Defendant Myrick’s). The Magistrate Judge
reports that Van de Kamp contemplates the precise facts alleged here, where a Plaintiff attempts to
attribute a prosecutor’s misconduct to a failure in training or in supervision by supervisors on the
basis that training and supervision are administrative in nature and fall outside of the sphere of the
prosecutorial conduct protected by absolute immunity. In her objections, Plaintiff acknowledges
that Van de Kamp is a clear obstacle to “end-run[s] around the absolute immunity of the actual
prosecutor in a case by asserting a general failure to supervise/trial claim against that individual
prosecutor’s supervisors for the conduct of a particular trial.” Pl.’s Objs. 4, ECF No. 37. Plaintiff,
however, uses her objections to distinguish the facts of Van de Kamp from the facts alleged here.
The difference here, Plaintiff contends, is that she has alleged that Defendant Burchstead
(and, perhaps, other prosecutors in the Office) had previously been accused of similar prosecutorial
Carolina, is immune from a § 1983 claim for damages pursuant to the Eleventh Amendment of the
United States Constitution. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Order, Field
v. McMaster, No. 6:09-cv-01949-HMH, 2010 WL 1076060, at *1 (D.S.C. March 18, 2010) (noting
that the Office of the Attorney General of South Carolina is immune from suit for damages).
Plaintiff’s § 1983 claim against the Office must, therefore, be dismissed, and the Court need not
discuss the Office’s damages liability under § 1983 further.
6

misconduct (specifically, vindictive prosecution). Plaintiff points to her allegations that Defendants
Wilson and Myrick, as a result of a previous civil action (“Odom”) allegedly involving Defendant
Burchstead and the Office, “had knowledge of prior misconduct, failed to discipline that
misconduct, tacitly authorized such misconduct and created a custom of such misconduct.” Pl.’s
Objs. 4. Plaintiff argues that the distinction that she makes shows a sufficient contrast between the
facts in Van de Kamp and the facts alleged here, where Defendants Myrick’s and Wilson’s failure
“to address the conduct from Odom after it came to light is purely administrative and is not directly
connected with any trial advocacy function in [Plaintiff’s] case.” Id. at 5. Specifically, Plaintiff
claims that her injuries were really the result of the prosecution errors in other trials, not just those
in hers, which Van de Kamp recognizes as the key to immunity. Id. The Court, however, is not
persuaded by this reading of Van de Kamp.
The Magistrate Judge correctly applied Van de Kamp to the facts alleged by Plaintiff.
Plaintiff’s standing to assert her claims against the SCAG Defendants rests fundamentally on the
injuries she alleges that she received in the midst of the prosecution of her trial. For that reason, the
Court finds that there is no meaningful distinction5 between Van de Kamp and this action and that
the reasoning by the Supreme Court must be followed here. Indeed, the threat of damages liability

5

Interestingly, there is no discussion by Plaintiff about whether Odom’s alleged vindictive
prosecution claim had any merit in the first place. While she alleges the South Carolina Supreme
Court granted a writ of certiorari, the court ultimately affirmed the lower court’s dismissal of the
action. Odom v. Wilson, No. 2013-MO-022, 2013 WL 8596566 (S.C. July 17, 2013). The result of
Odom and Plaintiff’s reliance on the case, of course, begs the following question: how would an
action in which a criminal defendant failed to obtain a favorable outcome against a prosecutor for
alleged misconduct enable other criminal defendants, downstream, to bring failure to train or to
supervise claims against individual supervisors in light of Van de Kamp? Should a plaintiff simply
be able to allege a previous civil action against a prosecutor to bypass a motion to dismiss on the
basis of absolute immunity? This Court is very aware of the multitude of complaints lodged against
prosecutors by criminal defendants for misconduct. Certainly, to allow an action such as this to go
forward merely on an allegation of a previous complaint against that prosecutor would eviscerate
Van de Kamp.
7

throughout a prosecutorial office for an error during trial would lead a trial prosecutor and other
office prosecutors to take account of such a risk when making trial-related decisions. Van de Kamp,
555 U.S. at 346–47. As the Supreme Court reasoned, it was the purpose of absolute immunity to
prevent this type of decisionmaking in the first place, as well as to prevent criminal defendants from
claiming damages for injuries that are trial-related. Id. at 347 (citing Imbler v. Pachtman, 424 U.S.
409, 424 (1976)). Permitting Plaintiff to bring this action would create a “practical anomaly” no
different than the scenario discussed in Van de Kamp, where a prosecutor would be immune yet her
supervisor would not. Id. Lawsuits of this kind would require prosecutors to defend their difficult
and most-times-honest decisions—many against the backdrop of complex constitutional law—years
after they were made. Id. Thus, despite her acknowledgement of the “end-run” addressed in Van de
Kamp, Plaintiff’s seeks to make it; her claims against Defendants Wilson and Myrick alleging
failures in training and in supervision, at their core, seek redress for alleged prosecutorial errors
committed during her trial.6
Of course, Van de Kamp applied specifically to immunity in § 1983 constitutional claims
against supervisors individually. Plaintiff also objects that the Magistrate Judge erred in applying
the holding of Van de Kamp to her SCTCA claims. Indeed, the Magistrate Judge cited to South

6

It must be noted that Plaintiff, in her objections, cites the opinion in Connick v. Thompson,
131 S. Ct. 1350 (2011), which unquestionably assumes that there are situations in which a § 1983
claim alleging prosecutorial misconduct may be brought. Connick involved a Monnell (v. New York
City Department of Social Services, 436 U.S. 658 (1978)) claim against the defendants acting in
their official capacities as prosecutors in the Orleans Parish District Attorney’s Office in Louisiana
(a municipal agency), and the plaintiff there alleged that a deficient training policy led to violations
of his rights under Brady v. Maryland, 373 U.S. 83 (1963). The Orleans Parish District Attorney’s
Office was not, however, protected by Eleventh Amendment immunity. As this Court noted in
footnote 4, however, Plaintiff’s complaint here concerns a state agency protected by the Eleventh
Amendment. Connick is, therefore, not helpful to the Court’s analysis of absolute immunity for
supervisory liability. Van de Kamp is controlling because Plaintiff’s claims against Defendants
Wilson and Myrick were brought against them for their individual conduct.
8

Carolina caselaw that applied Imbler’s concept of prosecutorial immunity to tort claims against
prosecutors who acted in their individual capacities. See Williams v. Condon, 555 S.E.2d 496, 506–
09 (S.C. Ct. App. 2001).7 Accordingly, the Magistrate Judge properly applied South Carolina law
to her recommendation that Plaintiff’s SCTCA claims must be dismissed. The Court finds no basis
to hold that Van de Kamp would not apply to Plaintiff’s SCTCA claims for the very reasons given
by the Supreme Court in Van de Kamp and the South Carolina Court of Appeals in Williams. Van
de Kamp, again, is an extension of the holding in Imbler, assuring that it would not be eviscerated
simply by general failure to train or to supervise claims. Van de Kamp, 555 U.S. at 347.
Accordingly, Plaintiff’s objections to the Magistrate Judge’s recommendation to dismiss the SCAG
Defendants’ motion to dismiss are overruled.8
II.

Plaintiff’s Motion to Amend
The Magistrate Judge recommends denying Plaintiff’s motion for leave to amend her

complaint as moot in light of the dismissal of the SCAG Defendants. Plaintiff objects to this
recommendation, arguing that, even if the SCAG Defendants are dismissed, her claims against the
SLED Defendants remain. Plaintiff moved for leave, in part, to address her civil conspiracy claims.
Moreover, Plaintiff contends that “South Carolina law recognizes that a civil conspiracy cause of
action may be maintained against only one conspirator.” Pl.’s Objs. 12 (citing Exchange Bank of

7

Williams was equally clear that, under the SCTCA, state agencies were not liable for
money damages for a loss occurring as a result of a prosecutor performing her typical duties.
Williams, 553 S.E.2d at 508.
8

Plaintiff, finally, contends at several points in her objections that there are genuine issues
of fact regarding whether Defendants Wilson’s and Myrick’s supervisory conduct was
administrative or prosecutorial in nature. Pl.’s Objs. 6, 9–10. Plaintiff notes, “[a]t a minimum, it is
a question for the jury to decide.” Id. at 6. The Court’s ruling, however, disposes of this objection
in light of its interpretation of Van de Kamp. Indeed, the damages liability of all of the SCAG
Defendants turns on Plaintiff’s allegations of Defendant Burchstead’s conduct, which, for the
reasons noted by the Magistrate Judge in her R&R, was prosecutorial under Imbler.
9

Meggett v. Bennett, 8 S.E.2d 515 (S.C. 1940)). She explains that the alleged civil conspiracy would
remain actionable against the SLED conspirators even though the SCAG conspirators may be
immune from suit. After a review of Plaintiff’s proposed amended complaint, the Court takes note
of the several claims remaining against the SLED Defendants, who neither joined in the SCAG
motion to dismiss nor opposed Plaintiff’s motion for leave to amend her complaint. The Court,
therefore, finds that leave for Plaintiff to amend her complaint is appropriate; however, only for
Plaintiff to amend her claims against the SLED Defendants. See Fed. R. Civ. P. 15(a)(2) (“The court
should freely give leave when justice so requires.”). But as a result of this order and the Magistrate
Judge’s R&R, the portions of Plaintiff’s proposed amended complaint relating to the SCAG
Defendants are moot.
CONCLUSION
The Court has thoroughly reviewed the record, including Plaintiff’s complaint, the motions,
the R&R, the objections to the R&R, and applicable law. For the reasons stated above and by the
Magistrate Judge, the Court hereby overrules Plaintiff’s objections, except to the extent the Court
sustains the objections. Accordingly, the Court adopts the R&R of the Magistrate Judge in part and
rejects it in part.
IT IS THEREFORE ORDERED that Defendants Alan Wilson, Wayne Allen Myrick, Jr.,
Megan Burchstead, and the Office of the South Carolina Attorney General’s motion to dismiss
(ECF No. 8) is GRANTED and that Plaintiff’s claims against those defendants are hereby
DISMISSED with prejudice. Plaintiff’s motion for leave to amend her complaint (ECF No. 10) is
GRANTED IN PART and DENIED IN PART. Plaintiff shall have leave to file her amended
complaint against Defendants John E. Follin, III and the South Carolina Law Enforcement Division
within FIFTEEN days.

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IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
September 24, 2014
Florence, South Carolina

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