Doe-3 v. Horry County et al

Filing 82

MEMORANDUM OPINION AND ORDER denying 63 Motion for Summary Judgment. Signed by Honorable Mary Geiger Lewis on 2/28/2019.(cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
JANE DOE-3,

§
Plaintiff,
§
§
vs.
§
§
HORRY COUNTY, SOUTH CAROLINA,
§
HORRY COUNTY POLICE DEPARTMENT, §
SAUNDRA RHODES, SCOTT
§
RUTHERFORD, THOMAS DELPERCIO,
§
WILLIAM SQUIRES, and DALE
§
BUCHANAN,
§
Defendants.
§

CIVIL ACTION NO. 4:16-2576-MGL

MEMORANDUM OPINION AND ORDER
DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION
Plaintiff Jane Doe-3 (Doe-3) filed this lawsuit against Defendants Horry County, South

Carolina, the Horry County Police Department (HCPD), Troy Allen Large (Large), Saundra Rhodes
(Rhodes), Scott Rutherford (Rutherford), Thomas Delpercio (Delpercio), William Squires (Squires),
and Dale Buchanan (Buchanan), alleging violations of her constitutional rights, 42 U.S.C. § 1983,
and a state law claim of negligence/gross negligence. The Court has federal-question jurisdiction
over the federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state
claim under 28 U.S.C. § 1367.
Pending before the Court is Defendants Rhodes, Rutherford, Delpercio, Squires, and
Buchanan’s (collectively Defendants) motion for summary judgment. Having considered the

motion, Doe-3's response, Defendants’ reply, the record, and the relevant law, the Court will deny
Defendants’ motion for summary judgment.

II.

FACTUAL AND PROCEDURAL HISTORY
Doe-3 says she initially came into contact with Large, a detective with the HCPD, in 1996

when he was assigned to investigate her case after she made allegations her then-husband assaulted
her. Confidential Exhibit 1, Page 23, Lines 11-Page 24, Line 2. Doe-3 encountered him again in
March of 1998 when he was assigned to investigate another domestic violence incident in which she
was shot once through the hip and four times through the hand by her then-husband. Confidential
Exhibit 1, Page 24, Lines 12-20.
Doe-3 stated she had no real concerns regarding her contact with Large during this time
period, except he was “very flirty.” Confidential Exhibit 1, Page 26, Line 20-Page 27, Line 10.
According to Doe-3, after the court proceedings were finalized leading to her then-husband’s
conviction, she left South Carolina in 2001 and moved to Tennessee. Confidential Exhibit 1, Page
25, Lines 11-21.
After Doe-3 left South Carolina, she said she lost contact with Large for approximately ten
years. Confidential Exhibit 1, Page 33, Lines 16-21. She moved back to South Carolina in 2005;
but did not come into contact with him again until January 2015, after a third domestic violence
incident in which she accused her then-husband of threatening her and members of her family with
a firearm. Confidential Exhibit 1, Page 34, Line 19-Page 35, Line 12. Large came to her home in
light of this report of domestic violence. Confidential Exhibit 1, Page 35, Lines 2-8.

2

Doe-3 testified that Detective Large, after responding to the January 2015 domestic violence
incident, began to visit her between two and three times a week. Confidential Exhibit 1, Page 40,
Line 1-8. She stated that, between January of 2015 and December of 2015, Large assaulted her on
fifty occasions, which included multiple instances of sexual assault. Confidential Exhibit 1, Page
127, Line 18-Page 128, Line 7; Page 123, Line 24-Page 125, Line 9. Doe-3 also attested Large
coerced her into participating in a private wrestling match with another victim of domestic violence
at a law enforcement officer’s home in North Carolina. Confidential Exhibit 1, Doe-3 Depo. at Page
40, Line 22-Page 41, Line 3; Page 43, Lines 6-23; Page 118, Lines 21-24; Page 129, Lines 1-8.
Doe-3 stated she felt restrained from leaving because of the presence of armed law
enforcement officers at the fight. Confidential Exhibit 1, Page 118, Lines 21-24. Doe-3 testified
her encounters with Large were not consensual and that she was repulsed by him; but she felt forced
to engage in these activities as a result of his position of authority. Confidential Exhibit 1, Page 71,
Line 10-Page 72, Line 5.
The HCPD received a report in July 2015 of criminal sexual conduct by Large. Confidential
Exhibit 4.

After investigating the July 2015 allegations, the HCPD Office of Internal Affairs

sustained the allegations. Id. The HCPD subsequently referred the case to the South Carolina Law
Enforcement Division in November 2015. Confidential Exhibit 2.
The Horry County Grand Jury indicted Large on September 15, 2016, bringing eleven counts
of criminal sexual conduct and misconduct in office against him. Confidential Exhibit 3. Two of
the eleven counts specifically address his alleged criminal interactions with Plaintiff. Id.
During the relevant period of time, “Rhodes was the duly appointed Chief of Police for the
Horry Count Police Department. As such, she was the commanding officer of . . . Large,”

3

Complaint ¶ 4; and “Rutherford, Delpercio, Squires, and Buchanan were the supervising officers of
. . . Large,” Id. ¶ 5.
Doe-3 filed this action in the Horry County Court of Common Pleas. Defendants thereafter
removed the case to this Court. Defendants subsequently filed this motion for summary judgement,
Doe-3 filed her response in opposition, and Defendants filed their reply. Afterwards, the case was
reassigned to this Court.
Large, who was initially a defendant in this case, died after Doe-3 filed this lawsuit. She
dismissed Large and Delpercio from the action after Defendants filed their motion for summary
judgment.

III.

STANDARD OF REVIEW
Summary judgment is appropriate only “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.” Fed. R. Civ. P.
56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving
party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party has the burden of proving that
summary judgment is appropriate. Once the moving party makes this showing, however, the
opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other
means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A party asserting that a fact is genuinely disputed must support the assertion by “citing to
particular parts of materials in the record, including depositions, documents, electronically stored
4

information, affidavits or declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). A litigant
“cannot create a genuine issue of material fact through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, “[m]ere
unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat’l
Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
“[W]here the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is appropriate.” Teamsters Joint Council No.
83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1996). “Summary judgment is proper only when it
is clear that there is no dispute concerning either the facts of the controversy or the inferences to be
drawn from those facts.” Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987).
The court must determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.

IV.

CONTENTIONS OF THE PARTIES
Defendants contend Doe-3's allegations of Defendants’ actions and/or inactions fail to rise

to the level of a violation of the constitution or federal law. In addition, according to Defendants,
they are entitled to sovereign and qualified immunity. Defendants also claim they have no liability
under 42 U.S.C. § 1983 as they are not “persons” as that term is defined in the statute.
Doe-3 refutes each of Defendants’ arguments.

5

V.

DISCUSSION AND ANALYSIS
A.

Whether Doe-3's claims rise to a violation of either the constitution or federal law

First, Defendants maintain Doe-3 has failed to demonstrate her claims amount to a violation
of either the constitution or federal law.
1.

Whether physical harm can constitute a constitutional violation

The Fourth Circuit clearly established in Jones v. Wellham, 104 F.3d 620 (4th Cir. 1997),
“an individual’s constitutional right . . . under the Fourteenth Amendment not to be subjected by
anyone acting under color of state law to the wanton infliction of physical harm.” Id. at 628. In
Jones, the defendant, a county police officer, allegedly raped the plaintiff during a traffic stop. Id.
at 622.
The Jones court held the district court did not err in instructing “the jury that if it found that
[the defendant] forcibly raped [the plaintiff] under the circumstances she claimed, this would
constitute a violation of her constitutional rights under the Fourteenth Amendment. Id. According
to the Fourth Circuit, the district court’s instruction “effectively defined the Fourteenth Amendment
right to bodily integrity specifically at issue in [the] case and accurately stated what had to be found
from the evidence in order to impose liability for its violation.” Id.
Defendants lead out the argument section of their motion with this: “The alleged
actions/inactions claimed by [Doe-3] do not rise to the level of a constitutional violation and she did
not suffer any infringement of constitutional and/or federal rights, privileges or immunities or
violations of law.” Defendants’ Motion 5 (emphasis omitted). Yet, they offer no argument

6

regarding Large’s alleged actions. Instead, their focus is on whether they, as Large’s supervisors,
have any liability for Large’s alleged misconduct.
2.

Whether supervisory officials may be held liable for the constitutional
violations of their subordinates

It is also clearly established in the Fourth Circuit “that supervisory officials may be held
liable in certain circumstances for the constitutional injuries inflicted by their subordinates.” Shaw
v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). “[L]iability is not premised upon respondeat superior
but upon a recognition that supervisory indifference or tacit authorization of subordinates
misconduct may be a causative factor in the constitutional injuries they inflict on those committed
to their care.” Id. (citation omitted) (internal quotation marks omitted).
“Recognizing that supervisory liability can extend to the highest levels of state government,
[the Fourth Circuit has] noted that liability ultimately is determined by pinpointing the persons in
the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to
continue unchecked.” Id. (citation omitted) (internal quotation marks omitted). “[T]his issue is
ordinarily one of fact, not law.” Id at 799.
A plaintiff must satisfy three elements to establish supervisory liability under § 1983:
(1) that the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed a pervasive and unreasonable risk of constitutional
injury to citizens like the plaintiff; (2) that the supervisor’s response to that
knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices, and (3) that there was an affirmative
causal link between the supervisor’s inaction and the particular constitutional injury
suffered by the plaintiff.

7

Id. (citation omitted) (internal quotation marks omitted). “ Shaw v. Stroud, 13 F.3d 791, 798 (4th
Cir. 1994). The Court will, thus, apply the evidence Doe-3 has submitted to determine if she is able
to meet these three requirements.
a.

whether Defendants, as Large’s supervisors, had actual or
constructive knowledge Large was allegedly engaged in conduct
that posed a pervasive and unreasonable risk of constitutional
injury to citizens like Doe-3

“To satisfy the requirements of [this] element, a plaintiff must show the following: (1) the
supervisor’s knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a
pervasive and unreasonable risk of constitutional injury to the plaintiff.” Shaw, 13 F.3d at 799.
“Establishing a pervasive and unreasonable risk of harm requires evidence that the conduct is
widespread, or at least has been used on several different occasions and that the conduct engaged
in by the subordinate poses an unreasonable risk of harm of constitutional injury.” Id. (citation
omitted) (internal quotation marks omitted). Doe-3 has marshaled a mountain of evidence of
Large’s alleged misdeeds for the Court’s consideration, which she offers in granular detail.
First, the Court turns to the July 7, 2003, correspondence from Large’s father-in-law,
Kenneth M. Evans. Confidential Exhibit 5. The letter is addressed to Rutherford, with copies to,
among others, the HCPD Chief, a HCPD Captain, and the Chairman of the Horry County Council.
Id. The letter follows up on a meeting Evans had with members of the HCPD in which he raised his
concerns regarding Large’s interactions with crime victims. Id.
In the letter, Evans states Large spent several months nurturing a female crime victim in one
of his cases. Id. According to Evans’s letter, Large had moved her into his home while his wife was
out of town. Id. Evans also claims Large used county vehicles for stalking purposes. Additionally,
8

he writes Large had been tipped off that his in-laws were going to meet with the HCPD officials
regarding their concerns. Id.
Defendants maintain Evans’s letter constitutes inadmissible hearsay. The Court will put off
the issuance of a final ruling on that argument for another day. Suffice it to say, for purposes of this
motion, the Court interprets the letter is not being offered for the truth of the matter asserted, but
instead to demonstrate Defendants’ notice of Large’s alleged bad conduct.
Second, Doe-3 offers evidence Jane Doe-1 (Doe-1) contacted the HCPD and reported she
had been the victim of a sexual assault on or about December 24, 2013. The case was assigned to
Large, who contacted her on December 27, 2013. Confidential Exhibit 17. Doe-1 complains Large
engaged in inappropriate behavior over the next six months, which included unwanted sexual
advances and sexual assault. Confidential Exhibit 9.
Doe-3 introduces evidence of a March 2014 “in-house,” off-the-books investigation
concerning Large. The investigation, which commenced after a confidential informant report Large
was frequenting Doe-1's home, was conducted at the request of Buchanan and Squires. Doe-1's
home was under active investigation by the Horry County Drug Enforcement Unit. Confidential
Exhibit 10, Page 39, Lines 10-22; Confidential 11; Confidential Exhibit 15; Confidential Exhibit 17.
Large’s supervisors failed to conduct any interviews of Large, Doe-1, or the confidential
informant as part of the “in-house” investigation. They also neglected to report the incident to the
Office of Professional Standards/Internal Affairs. Confidential Exhibit 10, Page 40, Line 24-Page
43 Line 10.

9

As a result of the investigation, a GPS tracking device was placed on Large’s police vehicle.
Confidential Exhibit 12, Page 65, Lines 2-25. It appears the HCPD neglected to take any further
action concerning the allegations at the time. Doe’s law enforcement expert, Dr. Timothy Maher
(Maher), states the report of Large’s visits to Doe-1's residence should have initiated a formal
investigation by the Office of Professional Standards or the South Carolina Law Enforcement
Division. Confidential Exhibit 8.
Buchanan testified he later told Rutherford and Rhodes of the report from the confidential
informant. According to Buchanan, Rutherford was upset he was not made aware prior to the
placement of the GPS monitor on Large’s vehicle. Confidential Exhibit 12, Confidential Deposition
of Dale Buchanan, Page 59, Lines 18-25.
Third, Doe-3 submits evidence the HCPD conducted a formal Internal Affairs investigation
in June 2014 concerning Large after Doe-1's report to the HCPD of Large’s alleged sexual
misconduct subsequent to her arrest on drug-related charges. Confidential Exhibit 15. Rhodes
directed the HCPD close the investigation as unfounded. Id.
According to the investigative report, however: (1) Large admitted he had paid for Doe-1's
prescription medications several times; (2) Large was frequenting Doe 1's home after he closed her
case as unfounded; (3) Doe-1 told an Horry County employee Large attempted to touch her
inappropriately; and (4) between December 2013 and May 2014, Large had called Doe-1's mobile
phone approximately eighty times. Confidential Exhibit 15; Confidential Exhibit 16. Doe-3's expert
maintains the findings in the Internal Affairs Investigation were sufficient to put a reasonable
supervisory officer on notice (1) Large was abusing his authority as a law enforcement officer and
(2) the abuse of authority was most likely related to his sexual desires. Confidential Exhibit 8. The
10

evidence shows, in addition to Rhodes, Squires, and Rutherford were actually aware of this
investigation.
Fourth, Doe-3 submits evidence of reports regarding Large’s alleged inappropriate behavior
with Jane Doe-4 (Doe-4). Doe-4 states she had intermittent contact with Large from the fall of 2014
until February of 2015, when she entered a drug rehab facility. Confidential Exhibit 19, Page 54,
Lines 3-16. According to Doe-4, Large sexually assaulted her during the Fall of 2014. Confidential
Exhibit, Page 35, Lines 11-25. Prior to Doe-4 making that allegation, her mother had raised
concerns about Large with the HCPD. Confidential Exhibit 20, Page 51, Line 15-Page 52, Line 20.
Doe-4's mother attested she spoke with a male police officer who identified himself as
Large’s supervisor. She informed him Large had been picking up her daughter and bringing her
home high on drugs. Confidential Exhibit 20, Page 52, Line 20-Page 54, Line 25. She also
expressed concerns Large “liked” her daughter. Confidential Exhibit 20, Page 55, Lines 9-19.
Large’s supervisor took Doe-4's mother’s name and informed her he would look into the
matter. Confidential Exhibit 20, Page 55, Lines 20-23. Doe-4's mother is unable to state with
certainty the date she called Large’s supervisor. It appears from the evidence presented, however,
the call occurred between the fall of 2014 and February 2015, which is when Doe-4 checked into
a drug rehab facility.
Fifth, Doe-3 provides evidence to the Court the HCPD opened a formal Internal Affairs
investigation into Large on or about July 13, 2015, to investigate Jane Doe-2's (Doe-2) allegations
of Large’s misconduct. Confidential Exhibit 4. According to Doe-2, during the time Large was
assigned to investigate her case involving criminal sexual conduct, he offered to pay her if she would

11

allow him watch her fight with other women; and he talked about paying her for oral sex, among
other things. Id. Rhodes and Rutherford were directly involved in this investigation.
On August 19, 2015, The HCPD sustained the allegations. Id. It referred the case to the
State Law Enforcement Division for further investigation. Confidential Exhibit 2. On September
15, 2016, a grand jury indicted Large on eleven counts of criminal sexual conduct and misconduct
in office. Of the eleven accounts, two specifically address his criminal interactions with Doe-3.
If a jury is presented with all this evidence, the Court is of the firm opinion it might well
conclude Defendants “had actual or constructive knowledge that [Large] was engaged in conduct
that posed a pervasive and unreasonable risk of constitutional injury to citizens like [Doe-3].” Shaw,
13 F.3d at 799. As to their constructive knowledge, given the extent of Large’s alleged misbehavior,
along with the opportunities and duty Defendants had to be informed of his actions, a jury could
conclude Defendants, at a minimum, had constructive knowledge of Large’s conduct. See Spell v.
McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987) (“Constructive knowledge may be inferred from the
widespread extent of the practices, general knowledge of their existence, manifest opportunities and
official duty of responsible policymakers to be informed, or combinations of these.”).
b.

whether Defendants’ response was so inadequate as to show
deliberate indifference to or tacit authorization of the alleged
offensive practices

“A plaintiff may establish deliberate indifference by demonstrating a supervisor’s continued
inaction in the face of documented widespread abuses.”

Shaw, 13 F.3d at 799 (citation omitted)

(internal quotation marks omitted). The plaintiff’s burden of proof in establishing deliberate
indifference is a heavy one because:

12

[o]rdinarily, [the plaintiff] cannot satisfy his burden of proof by
pointing to a single incident or isolated incidents, for a supervisor
cannot be expected to promulgate rules and procedures covering
every conceivable occurrence within the area of his responsibilities.
Nor can he reasonably be expected to guard against the deliberate
criminal acts of his properly trained employees when he has no basis
upon which to anticipate the misconduct. A supervisor’s continued
inaction in the face of documented widespread abuses, however,
provides an independent basis for finding he either was deliberately
indifferent or acquiesced in the constitutionally offensive conduct of
his subordinates.
Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984) (citation omitted).
It is not a stretch to say a jury might also determine Doe-3 has established “deliberate
indifference by demonstrating a supervisor’s continued inaction in the face of documented
widespread abuses.” Id. (citation omitted) (internal quotation marks omitted). The evidence
detailed above is not of a single or isolated incident. It is for that reason a jury could conclude
Large’s supervisors “continued inaction in the face of documented widespread abuses . . . provides
an independent basis for finding [they] either [were] deliberately indifferent or acquiesced in the
constitutionally offensive conduct of his subordinates.” Slakan, 737 F.2d at 373) (citation omitted).
Therefore, Doe-3 has also satisfied the second element required to establish supervisor liability.
c.

whether there was an affirmative causal link between the
Defendants’ inaction and the particular constitutional injury
suffered by Doe-3

“Causation is established when the plaintiff demonstrates an affirmative causal link between
the supervisor’s inaction and the harm suffered by the plaintiff.” Shaw, 13 F.3d at 799 (citation
omitted) (internal quotation marks omitted). “This concept encompasses cause in fact and proximate
cause.” Id. “Proof of causation may be direct . . . where the policy commands the injury of which

13

the plaintiff complains . . . [or] may be supplied by [the] tort principle that holds a person liable for
the natural consequences of his actions.” Slakan, 737 F.2d at 376 (citation omitted).
Based on the evidence Doe-3 has offered, a jury could reasonably find Large’s alleged
constitutional violations were a natural and foreseeable consequence of Defendants’ failure to
address his purported pervasive propensities of the misconduct detailed above. Because there is
ample evidence supporting Doe-3's claims Defendants were aware, or should have been aware, of
Large’s frequent misconduct, it follows that they knew Large’s continued unchecked service on the
force posed a constant and dangerous threat to women such as Doe-3. As such, a reasonable jury
could find Defendants acted with deliberate indifference and that a causal link exists between
Defendants’ inaction and the alleged harm. Thus, Doe-3 has satisfied the third element necessary
to establish supervisor liability, too.
For all these reasons, the Court holds there is sufficient evidence in the record for a jury to
find Defendants, as Large’s supervisors, are liable for the alleged constitutional injuries inflicted by
Large.
B.

Whether Defendants are entitled to sovereign immunity

Defendants, employees of Horry County, argue they are entitled to sovereign immunity.
“[A] judgment against a public servant in his official capacity imposes liability on the entity
that he represents.” Kentucky v. Graham, 473 U.S. 159, 169 (1985) (citation omitted) (internal
quotation marks omitted). And, “the Eleventh Amendment bars a damages action against a State
in federal court.” Id. Doe-3, however, sued Defendants in their individual capacities, not in their
official capacities.

14

But, even if she had sued Defendants in their official capacities, sovereign immunity would
be inapplicable inasmuch as “the bar of the Eleventh Amendment to suit in federal courts . . . . does
not extend to counties and similar municipal corporations.” Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 280 (1977). Therefore, Defendants are not entitled to sovereign immunity.
C.

Whether Defendants are entitled to qualified immunity

Defendants also contend they are entitled to qualified immunity.
“When confronting a claim of qualified immunity, [the Court] asks two questions. First, the
court considers whether the officer in fact violated a constitutional right. Mullenix v. Luna, 136 S.
Ct. 305, 313–14 (2015). “Second, the court asks whether the contours of the right were sufficiently
clear that a reasonable official would have understood that what he is doing violates that right.” Id.
at 314 (citation omitted) (internal quotation marks omitted) (alterations omitted).
Defendants state they “had no reason to know that any of their actions violated the Plaintiff’s
constitutional rights.” Defendants’ Motion 10. As already noted, however, the Jones case
demonstrates it is clearly established sexual misconduct by an officer such as Large while acting
under the color of state law is forbidden by the constitution. See Jones, 104 F.3d at 628. And the
Shaw court shows it is clearly established a supervisor can be found to be liable for a subordinate’s
constitutional infractions in a situation such as is presented here. See Shaw, 13 F.3d at 798.
Defendants also claim they are entitled to qualified immunity because they were unaware
of Large’s alleged conduct. As provided above, however, there is sufficient evidence in the record
for a jury to conclude Defendants knew or should have known of Large’s alleged misconduct.
Consequently, the Court holds Defendants are not entitled to qualified immunity.
15

D.

Whether Defendants are “persons” under 42 U.S.C. § 1983

Finally, Defendants state they cannot have any liability under 42 U.S.C. § 1983 as they are
not “persons” as that term is defined in the statute.
Defendants’ argument is made on the mistaken premise Doe-3 is suing them in their official
capacities. As already noted, however, she is suing them in their individual, or personnel, capacities.
And “officers sued in their personal capacity come to court as individuals.” Hafer v. Melo, 502 U.S.
21, 27 (1991). And, “[a] government official in the role of personal-capacity defendant . . . fits
comfortably within the statutory term ‘person.’” Id.
Therefore, the Court rejects this argument, too.

VI.

CONCLUSION
Based on the foregoing discussion and analysis, Defendants’ motion for summary judgment

is DENIED.
IT IS SO ORDERED.
Signed this 28th day of February, 2019, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

16