Morning v. Dillon County et al

Filing 60

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates by reference the R & R (ECF No. 47 ) to the extent it is consistent with this Order. The Court GRANTS IN PART AND DENIES IN PART the motion for summa ry judgment (ECF No. 30 ). Specifically, the Court GRANTS summary judgment as to all claims against Defendants Dillon County, Hulon, Jackson, and Miller, and DISMISSES these four defendants with prejudice. The Court DENIES summary judgment as to the § 1983 bystander liability claim against Day, and GRANTS summary judgment as to all other claims against Day. The Court DENIES summary judgment as to the assault, battery, and gross negligence claims against theDCSO brought under the SCTCA, and GRANTS summary judgment as to all other claims against the DCSO. To clarify, the only claims that remain pending are (1) a § 1983 bystander liability claim against Day, (2) assault, battery, and gross negligence claims against the DCSO brought u nder the SCTCA, and (3) all claims against Rogers. The Court finds the parties' Joint Motion to Hold in Abeyance the Second Amended Scheduling Order (ECF No. 34 ) is moot. The Court DIRECTS the parties to submit a proposed consent amended scheduling order within five days of the date of this Order.IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 09/27/2017. (dsto, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Robert Earl Morning,

)
)
Plaintiff,
)
)
v.
)
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Dillon County; Dillon County Sheriff’s
)
Office; Sheriff Major Hulon, in his official )
capacity; Ken Carlisle Rogers, in his
)
individual and official capacity; James
)
Jackson, in his individual and official
)
capacity; Andrew Miller, in his individual )
and official capacity; and Richard Day,
)
in his individual and official capacity,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 4:15-cv-03349-RBH

ORDER

Plaintiff Robert Earl Morning brought this action, which was removed from state court, against
the seven above-captioned defendants alleging claims under 42 U.S.C. § 1983 and state law. All
defendants except Defendant Ken Carlisle Rogers answered and filed a motion for summary judgment.
The matter is before the Court for consideration of the parties’ objections to the Report and
Recommendation (“R & R”) of United States Magistrate Judge Thomas E. Rogers, III.1 The Magistrate
Judge recommends that the Court grant in part and deny in part the motion for summary judgment, and
that the Court dismiss Defendant Rogers without prejudice.
Legal Standards
I.

Review of the R & R
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

1

The Magistrate Judge filed the R & R in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02(B)(2) (D.S.C.).

recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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 must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, 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 [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
II.

Summary Judgment
Summary judgment is appropriate when no genuine issue of material fact exists and the moving

party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407,
413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The facts and
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inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving
party, Reyazuddin, 789 F.3d at 413, but the Court “cannot weigh the evidence or make credibility
determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).
Moreover, “the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “A
dispute of material fact is ‘genuine’ if sufficient evidence favoring the non-moving party exists for the
trier of fact to return a verdict for that party.” Seastrunk v. United States, 25 F. Supp. 3d 812, 814
(D.S.C. 2014). A fact is “material” if proof of its existence or nonexistence would affect disposition
of the case under the applicable law. Anderson, 477 U.S. at 248.
At the summary judgment stage, “the moving party must demonstrate the absence of a genuine
issue of material fact. Once the moving party has met his burden, the nonmoving party must come
forward with some evidence beyond the mere allegations contained in the pleadings to show that there
is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992)
(internal citation omitted). Summary judgment is not warranted unless, “from the totality of the
evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the [C]ourt
believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment
as a matter of law.” Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Discussion
This case arises from an incident during which First Sergeant Ken Rogers of the Dillon County
Sheriff’s Office (“DCSO”) allegedly used excessive force when arresting Plaintiff by pepper spraying,
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slapping, leg-shackling, and tasing him, and when DCSO deputies James Jackson, Andrew Miller, and
Richard Day allegedly failed to protect Plaintiff from Rogers’ actions.2 Due to his alleged actions,
Rogers was arrested and charged with misconduct in office and assault and battery, and he ultimately
pleaded guilty to misconduct in office. Plaintiff has sued the aforementioned four officers in their
individual and official capacities, as well as Sheriff Major Hulon in his official capacity, the DCSO, and
Dillon County. In his amended complaint, Plaintiff asserts thirteen causes of action pursuant to 42
U.S.C. § 1983 and state law. All defendants except Rogers have answered and filed a motion for
summary judgment.
The Magistrate Judge recommends that the Court (1) deny summary judgment as to Plaintiff’s
§ 1983 bystander liability claim against Day and gross negligence claim against the DCSO, (2) grant
summary judgment as to all other claims against Dillon County, the DCSO, Hulon, Jackson, Miller, and
Day, (3) find the issue of the DCSO’s liability under the South Carolina Tort Claims Act (“SCTCA”)
should remain pending; and (4) dismiss Rogers pursuant to Federal Rule of Procedure 4(m). See R &
R [ECF No. 47] at p. 18. Thus, based on the Magistrate Judge’s recommendation, the only remaining
defendants would be Day and the DCSO. The parties have filed limited objections to the R & R.
Initially, the Court notes there is no objection to the dismissal of Dillon County, Hulon, Jackson,
and Miller. Finding no clear error in the R & R as to these four defendants, the Court will dismiss them
from this case with prejudice. The parties’ objections relate only to Day, the DCSO, and Rogers.
I.

Day
The Magistrate Judge recommends denying summary judgment as to Plaintiff’s § 1983

2

The Magistrate Judge adequately summarizes the facts in the light most favorable to Plaintiff, and the Court
adopts that summary without repeating it here. See R & R at pp. 2–3.

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bystander liability claim against Day. R & R at pp. 8–14. Day makes two objections to this
recommendation. See Defs.’ Objs. [ECF No. 52] at pp. 2–8.
A.

Whether Plaintiff Adequately Pleaded a § 1983 Bystander Liability Claim Against
Day

In his first objection, Day argues Plaintiff’s complaint did not sufficiently plead a § 1983
bystander liability claim against him. See id. at pp. 2–6.
“In general, whether a complaint sufficiently states a claim upon which relief can be granted is
governed by the Supreme Court’s plausibility pleading framework.” Stevenson v. City of Seat Pleasant,
743 F.3d 411, 417 (4th Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007)). This framework “do[es] not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. In sum, the Twombly/Iqbal pleading standard requires a complaint to “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Twombly, 550 U.S. at 570).
The Fourth Circuit “recognizes a cause of action [under § 1983] for bystander liability premised
on a law officer’s duty to uphold the law and protect the public from illegal acts, regardless of who
commits them.” Stevenson, 743 F.3d at 416–17. “To succeed on a theory of bystander liability, a
plaintiff must demonstrate that a law-enforcement officer (1) knew that a fellow officer was violating
an individual’s constitutional rights; (2) had a reasonable opportunity to prevent the harm; and (3) chose
not to act.” Id. at 417 (internal quotation marks and alterations omitted); see also Randall v. Prince
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George’s Cty., 302 F.3d 188, 204 (4th Cir. 2002). “[P]laintiffs are ‘not required to use any precise or
magical words in their pleading’ to state a bystander liability claim.” Gunsay v. Mozayeni, __ F. App’x
__, 2017 WL 2684015, at *4 (4th Cir. June 21, 2017) (quoting Stevenson, 743 F.3d at 418).
The Magistrate Judge has determined Plaintiff’s third cause of action sufficiently pleads a
§ 1983 bystander liability claim against Day because (1) the third cause of action alleges “First Sergeant
Rogers and Deputy Day’s acts and omissions constituted an excessive use of force proximately causing
a violation of Plaintiff’s Fourth and Fourteenth Amendment rights”; and (2) other allegations in the
complaint more specifically allege bystander liability. See Am. Complaint at ¶ 82 (emphases added);
R & R at pp. 10–11. The Court agrees.
Although the third cause of action is entitled “42 U.S.C. § 1983 - Fourth Amendment Claim for
Excessive Force as to Sergeant Rogers,” see Am. Complaint at p. 12 (emphasis added), the substance
of this claim “pleads factual content that allows the court to draw the reasonable inference that [Day]
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Significantly, In the very first paragraph
of the third cause of action, “Plaintiff incorporates by reference all allegations in all of the previous
paragraphs as if stated verbatim herein.” Am. Complaint at ¶ 74. Those previous paragraphs allege that
Day was present when Rogers pepper sprayed, slapped, and tased Plaintiff, that Day observed all these
actions involving Rogers’ purported use of excessive force, and that Day is liable under “the alternative
theory of police officer/bystander liability” because he was “aware of those acts [of Rogers] and w[as]
in a position to prevent some or all of those acts and took no action to do so.” See id. at ¶¶ 10–17, 24,
60–61, 63, 69–70, 72. These allegations sufficiently allege Day (1) knew Rogers was violating
Plaintiff’s Fourth Amendment rights, (2) had a reasonable opportunity to prevent such violations, and
(3) chose not to act. See, e.g., Stevenson, 743 F.3d at 419 (explaining that based on the defendants’
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“undisputed presence at the scene of the altercation and the allegation that the officers ‘allow[ed] to be
committed . . . unreasonable seizure[s],’ it requires no legal gymnastics or finagling” to read the
plaintiffs’ complaint as alleging a bystander liability claim (alterations in original)).
In sum, Plaintiff has sufficiently pleaded a § 1983 bystander liability claim against Day. The
Court overrules Day’s first objection.
B.

Whether A Genuine Issue of Material Fact Exists

In his second objection, Day contends no evidence supports a cause of action for bystander
liability. See Defs.’ Objs. at pp. 6–8. Specifically, Day asserts there is no question of fact as to the
second and third elements necessary for a § 1983 bystander liability claim—i.e., a reasonable
opportunity to prevent the harm and a choice not to act.3 Id. at p. 7.
The Magistrate Judge divides Rogers’ use of force into two attacks, the first involving the
pepper spray and slapping and the second involving the leg irons and taser. See R & R at pp. 12–14.
Regarding the first attack, the Magistrate Judge has reviewed Day’s, Miller’s, and Jackson’s depositions
and concluded Day had no realistic opportunity to intervene because the pepper spray and slap happened
so close together (within a “matter of seconds,” according to Miller’s testimony). Id. at pp. 12–13. As
for the second attack, however, the Magistrate Judge notes that several minutes elapsed between the first
and second attacks and that Day was present and witnessed Rogers’ conduct, and therefore a question
of fact exists as to whether Day is liable for failing to intervene. Id. at pp. 13–14. The Court agrees.
Day argues “[t]here is absolutely no testimony that could give rise to a question of fact
that . . . Day . . . never had a reasonable opportunity to prevent the harm that Defendant Rogers inflicted

3

In his objections, Day does not challenge the first element, i.e., whether he knew Rogers was violating
Plaintiff’s constitutional rights. See Stevenson, 743 F.3d at 417.

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upon Plaintiff and willingly chose not to act.” Defs.’ Objs. at p. 7. However, as the Magistrate Judge
observes in the R & R—and Day himself acknowledges in his objections—Jackson testified “a couple
of minutes” elapsed between the time Rogers pepper sprayed and slapped Plaintiff and the time Rogers
tased Plaintiff. Jackson Dep. at pp. 18, 21. Notably, after Rogers committed the first attack, he left
Plaintiff, walked to his car, and then came back and tased Plaintiff. See Jackson Statement at p. 2;
Miller Statement at p. 2; Miller Dep. at pp. 25–26, 37–38; Pl.’s Dep. at pp. 64–65. Additionally, Day
saw “Rogers put the leg shackles on Robert Morning, after he was sprayed before he was tazed.” Day
Statement (emphasis added). Day testified that he saw Rogers pepper spray and slap Plaintiff; that he
thought Rogers’ actions amounted to an assault; and that if a private citizen had walked up to Plaintiff
and done the same, Day would arrest the private citizen for assault. Day Dep. at pp. 12–13, 20. This
evidence creates a genuine issue of material fact as to whether Day had a reasonable opportunity to
prevent Rogers’ subsequent tasing of Plaintiff, given the period of time between the first attack and the
second attack.
Moreover, Day testified that he “view[ed] . . . Robert Morning being pepper sprayed” and
slapped, that he “saw [Rogers] with the taser,” and that he “moved away from the incident after
[Plaintiff] was pepper sprayed” and slapped. Day Dep. at pp. 12–13; see also Day Statement at p. 2.
This evidence creates a genuine issue of material fact as to whether Day chose not to act. See, e.g.,
Norman v. Frederick, No. 8:09-CV-02479-JMC, 2011 WL 4008134, at *7 (D.S.C. Sept. 8, 2011)
(“Viewing the evidence in a light most favorable to Plaintiff, Defendants’ presence and participation
at the scene of the stop and arrest create genuine issues of material fact sufficient for a jury’s
determination as to whether Defendants had a reasonable opportunity to prevent Plaintiff’s injuries but
chose not to.”).
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Genuine issues of material fact exist as to Plaintiff’s § 1983 bystander liability claim against
Day, and therefore the Court overrules Day’s second objection and denies summary judgment on this
claim.
II.

DCSO
The DCSO and Plaintiff object to the Magistrate Judge’s recommendations4 concerning

Plaintiff’s state law claims for assault, battery, and gross negligence brought against the DCSO pursuant
to the South Carolina Tort Claims Act (“SCTCA”).5 See Defs.’ Objs. at pp. 8–10; Pl.’s Objs. at pp.
4–6; Defs.’ Reply [ECF No. 57] at pp. 1–2.
The SCTCA “governs all tort claims against governmental entities and is the exclusive civil
remedy available in an action against a governmental entity or its employees.” Shirley’s Iron Works,
Inc. v. City of Union, 403 S.C. 560, 571, 743 S.E.2d 778, 783 (2013) (emphasis added); see S.C. Code
Ann. § 15–78–40 (2005) (“The State, an agency, a political subdivision, and a governmental entity are
liable for their torts in the same manner and to the same extent as a private individual under like
circumstances . . . .”). “An employee of a governmental entity who commits a tort while acting within
the scope of his official duty is not liable and the plaintiff must sue the governmental agency itself.”
Newkirk v. Enzor, 240 F. Supp. 3d 426, 436 (D.S.C. 2017).

4

The Court notes the R & R is somewhat unclear as to what exactly should happen to the state law claims
against the DCSO made under the SCTCA, as evidenced by Plaintiff’s objections. See Pl.’s Objs. [ECF No. 54] at
pp. 4–5. Plaintiff objects to the R & R only to the extent it could be read as granting summary judgment on the
assault, battery, and gross negligence claims against the DCSO; and the DCSO has filed a reply to Plaintiff’s
objection. For the sake of simplicity, and because the parties have presented their respective arguments via their
objections (and the DCSO’s reply), the Court will simply consider de novo whether summary judgment is warranted
on these three claims. See generally Samples v. Ballard, 860 F.3d 266, 272 (4th Cir. 2017) (“[A]s part of its
obligation to determine de novo any issue to which proper objection is made, a district court is required to consider
all arguments directed to that issue, regardless of whether they were raised before the magistrate.” (emphases
removed) (quoting United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992))).

5

S.C. Code Ann. §§ 15–78–10 through –220 (2005 & Supp. 2016).

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A.

Assault and Battery

Plaintiff argues the DCSO is liable under the SCTCA for the assault and battery committed by
Rogers. See Pl.’s Objs. at pp. 5–6.
Under South Carolina law, “an assault occurs when a person has been placed in reasonable fear
of bodily harm by the conduct of the defendant, and a battery is the actual infliction of any unlawful,
unauthorized violence on the person of another, irrespective of its degree.” Jones by Robinson v.
Winn-Dixie Greenville, Inc., 318 S.C. 171, 175, 456 S.E.2d 429, 432 (Ct. App. 1995). “[A] law
enforcement officer who uses reasonable force in effecting a lawful arrest is not liable for assault or
battery. However, if the officer uses excessive force, or ‘force greater than is reasonably necessary
under the circumstances,’ the officer may be liable for assault or battery.” McCoy v. City of Columbia,
929 F. Supp. 2d 541, 567 (D.S.C. 2013) (internal citations omitted).
Under the SCTCA, a governmental entity is immune from “employee conduct outside the scope
of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime
involving moral turpitude.” S.C. Code Ann. § 15–78–60(17) (2005). “Although the SCTCA generally
is not intended to protect state employees from liability for intentional torts, it does not automatically
grant state entities categorical immunity from any intentional tort committed by an employee acting
within the scope of his official duties.” Newkirk, 240 F. Supp. 3d at 436–37 (internal quotation marks
and citation omitted). The terms “actual fraud, actual malice, intent to harm, or a crime involving moral
turpitude” must be liberally construed in favor of the governmental defendant, but these terms “cannot
be fairly construed to encompass every instance of any intentional tort.” Id. at 437. See, e.g., McBride
v. Sch. Dist. of Greenville Cty., 389 S.C. 546, 563–66, 698 S.E.2d 845, 854–55 (Ct. App. 2010) (finding
causes of action for abuse of process and malicious prosecution are not barred by § 15–78–60(17)
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simply because of their elements); Newkirk, 240 F. Supp. 3d at 435–37 (finding § 15–78–60(17) did
not automatically bar the plaintiff’s SCTCA claims for assault, battery, malicious prosecution, and false
imprisonment simply because they were intentional torts, and noting “each tort [the plaintiff] alleges
could be committed without actual malice or intent to harm”). “Whether immunity applies therefore
depends upon the facts of the case, and, where material facts are disputed, summary judgment is
inappropriate and ‘[i]mmunity under the statute is an affirmative defense that must be proved by the
defendant at trial.’” Newkirk, 240 F. Supp. 3d at 437 (quoting Frazier v. Badger, 361 S.C. 94, 101, 603
S.E.2d 587, 590 (2004)).
Here, factual questions exist as to the reasonableness of Rogers’ use of force. Jackson, Miller,
and Day all indicated through their deposition testimony that they believed Rogers’ actions were
unjustified in light of Plaintiff’s compliant behavior. See Jackson Dep. at pp. 24–25; Miller Dep. at pp.
22–24, 36–39; Day Dep. at pp. 20, 23. Specifically, each of these three deputies testified they would
have had the right to arrest a private citizen for the conduct used by Rogers. Jackson Dep. at p. 24;
Miller Dep. at pp. 24, 36–39; Day Dep. at p. 20. Most notably, Rogers was charged with second-degree
assault and battery due to his actions, and he pleaded guilty to misconduct in office in exchange for the
assault and battery charges being dropped. Am. Compl. at ¶¶ 32–34; Hulon Dep. at p. 24. Because
Plaintiff has a viable § 1983 excessive force claim against Rogers, there is a genuine issue of material
fact as to whether the DCSO is liable under the SCTCA for the alleged assault and battery committed
by Rogers. See, e.g., Barfield v. Kershaw Cty. Sheriff’s Office, 638 F. App’x 196, 201–03 (4th Cir.
2016) (“[I]n the case of a viable excessive force claim under § 1983, Barfield’s SCTCA battery claim
against the KCSO also survives [summary judgment].”). The Court denies summary judgment as to
Plaintiff’s SCTCA assault and battery claims against the DCSO.
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B.

Gross Negligence

The DCSO argues “Plaintiff cannot show how Defendant DCSO was grossly negligent by its
failure to exercise even the slightest care.” Defs.’ Objs. at p. 10.
The SCTCA provides that a governmental entity can be held liable for a loss resulting from a
“responsibility or duty including but not limited to supervision, protection, control, confinement, or
custody of any . . . prisoner [or] inmate . . . of any governmental entity . . . when the responsibility or
duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15–78–60(25) (2005) (emphasis
added). “Gross negligence is the intentional conscious failure to do something which it is incumbent
upon one to do or the doing of a thing intentionally that one ought not to do. It is the failure to exercise
slight care.”6 Jinks v. Richland Cty., 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003) (internal citation
omitted).

“The term is relative and means the absence of care that is necessary under the

circumstances.” Moore by Moore v. Berkeley Cty. Sch. Dist., 326 S.C. 584, 591, 486 S.E.2d 9, 13 (Ct.
App. 1997). “Normally, the question of what activity constitutes gross negligence is a mixed question
of law and fact.” Bass v. S.C. Dep’t of Soc. Servs., 414 S.C. 558, 571, 780 S.E.2d 252, 259 (2015).
Viewing the evidence in the light most favorable to Plaintiff, there are genuine issues of material
fact as to whether the DCSO was grossly negligent, i.e., whether it failed to exercise slight care.
Miller’s, Jackson’s, and Day’s testimony indicates none of these officers separated Rogers from
Plaintiff after the first attack involving pepper spray and slapping. See Miller Dep. at pp. 15–21;
Jackson Dep. at pp. 17–21; Day Dep. at pp. 12–16. Although the DCSO argues “the actions of
Defendant Rogers occurred so rapidly and without warning as to not allow anyone time to react,” the

6

“Negligence is the failure to exercise due care, while gross negligence is the failure to exercise slight care.”
Clyburn v. Sumter Cty. Sch. Dist. No. 17, 317 S.C. 50, 53, 451 S.E.2d 885, 887 (1994).

12

Court has previously explained there was a time gap of “a couple of minutes” between the first and
second attacks. See Jackson Dep. at pp. 18, 21. The Court has also noted Day testified he thought
Rogers’ actions amounted to an assault; and that if a private citizen had walked up to Plaintiff and
pepper sprayed him, Day would arrest the private citizen for assault. Day Dep. at pp. 12–13, 20.
Moreover, as the Magistrate Judge points out, Miller and Day testified they would have separated an
aggressor from a victim under similar circumstances not involving an officer as the aggressor; and Day
testified that in the jail context, it was “common sense” to separate a detainee who was assaulting
another person and that failure to do so would be “reckless.” See R & R at p. 17 (citing Miller Dep. at
p. 23 & Day Dep. at p. 23). Viewing the evidence in the light most favorable to Plaintiff, the Court
finds there is a genuine issue of material fact as to whether the DCSO was grossly negligent based on
Jackson’s, Miller’s, and Day’s alleged inaction, in light of Rogers’ alleged actions involving the use of
excessive force. The Court denies summary judgment as to Plaintiff’s SCTCA gross negligence claim
against the DCSO.
III.

Rogers
Plaintiff objects to the Magistrate Judge’s recommendation to dismiss Rogers pursuant to

Federal Rule of Civil Procedure 4(m). Pl.’s Objs. at pp. 6–7; see R & R at pp. 1 & 18. Plaintiff has
attached to his objections a process server’s affidavit indicating Rogers was timely served on October
16, 2015, and Plaintiff has separately filed a certificate of service (along with said affidavit) with the
Court. See ECF Nos. 53 & 54-9. Plaintiff requests that the Court consider service on Rogers to be
timely pursuant to Rule 4(l)(3).
The Court will sustain Plaintiff’s objection. Rule 4(1)(3) provides that “[f]ailure to prove
service does not affect the validity of service.” Fed. R. Civ. P. 4(1)(3). Although Plaintiff did not file
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the certificate of service until he filed his objections, his belated filing did not affect the validity of his
timely service on Rogers. See generally Mann v. Castiel, 681 F.3d 368, 373 (D.C. Cir. 2012)
(“Although the district court cannot be assured that it has jurisdiction over a defendant until the plaintiff
files proof of service, the defendant ‘becomes a party officially, and is required to take action in that
capacity . . . upon service.’ Murphy Bros., 526 U.S. at 350. That is, a defendant must answer the
complaint ‘within 21 days after being served,’ Fed. R. Civ. P. 12(a)(1)(A), even if the plaintiff fails
timely to prove service by filing a server’s affidavit . . . .”). Thus, Rogers will remain a defendant in
this action, and Plaintiff may seek an entry of default against Rogers in accordance with Rule 55(a).7
Conclusion
Based on the foregoing, the Court adopts and incorporates by reference the R & R [ECF No. 47]
to the extent it is consistent with this Order. The Court GRANTS IN PART AND DENIES IN PART
the motion for summary judgment [ECF No. 30]. Specifically, the Court GRANTS summary judgment
as to all claims against Defendants Dillon County, Hulon, Jackson, and Miller, and DISMISSES these
four defendants with prejudice. The Court DENIES summary judgment as to the § 1983 bystander
liability claim against Day, and GRANTS summary judgment as to all other claims against Day. The
Court DENIES summary judgment as to the assault, battery, and gross negligence claims against the
DCSO brought under the SCTCA, and GRANTS summary judgment as to all other claims against the
DCSO. To clarify, the only claims that remain pending are (1) a § 1983 bystander liability claim against
Day, (2) assault, battery, and gross negligence claims against the DCSO brought under the SCTCA, and
(3) all claims against Rogers.

7

Rule 55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s
default.” Fed. R. Civ. P. 55(a) (emphasis added).

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The Court finds the parties’ Joint Motion to Hold in Abeyance the Second Amended Scheduling
Order [ECF No. 34] is moot. The Court DIRECTS the parties to submit a proposed consent
amended scheduling order within five days of the date of this Order.
IT IS SO ORDERED.

Florence, South Carolina
September 27, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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