Rosendall et al v. Voigt et al
ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates the Magistrate's Report 36 . Voigt's Motion to Dismiss, Partial Motion to Dismiss, and Motion to strike 36 is GRANTED in part and DENIED in part as set out. IT IS SO ORDERED. Signed by Honorable Donald C Coggins, Jr on 05/07/2018. (dsto, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Hillery Rosendall, Tocara Smith, Shameka)
Haynesworth, Mokeia Hammond, Brittany)
Herman Voigt and South Carolina Department )
C/A No. 4:17-cv-00821-DCC-TER
This matter is before the Court on Defendant Herman Voigt’s Motion to Dismiss,
Partial Motion to Dismiss, and Motion to Strike. ECF No. 17. Plaintiffs filed a Response
in Opposition, and Voigt filed a Reply. ECF Nos. 32, 34. In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to United
States Magistrate Thomas E. Rogers, III, for pre-trial proceedings and a Report and
Recommendation (“Report”). On September 11, 2017, the Magistrate Judge issued a
Report recommending that the Motion be granted in part and denied in part. ECF No. 36.
Voigt filed objections to the Report. ECF No. 38
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See U.S.C. § 636(b). The Court will
review the Report only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of timely filed objection, a district court need not conduct a de novo review, but
instead must only satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.” (citation omitted)).
As an initial matter, neither Voigt nor Plaintiffs object to the portion of the Report
recommending that Plaintiffs’ claim pursuant to the South Carolina Constitution be
dismissed. Upon review of the record, the applicable law, and the Report, the Court finds
no clear error and agrees with the Magistrate’s recommendation that this claim should be
With respect to Voigt’s Motion to Strike certain portions of the Amended Complaint
as redundant, immaterial, impertinent, or scandalous pursuant to Federal Rule of Civil
Procedure 12(f), the Court overrules the objection and adopts the reasoning of the
Magistrate. Voigt rehashes the same arguments raised in his Motion and Reply. However,
as explained in the Report, the Fourth Circuit Court of Appeals has noted that Rule 12(f)
motions are generally viewed with disfavor “because striking a portion of the pleading is a
drastic remedy . . . .” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir.
2001) (internal quotations and citations omitted). Voigt continues to assert conclusory
statements that the language at issue in the Amended Complaint has no relation to
Plaintiffs’ claims without providing support or reasoning. Moreover, regarding Voigt’s
concerns that the allegations will poison the jury pool, the Court agrees with the
Magistrate’s conclusion that Voigt fails to state a compelling argument because the
complaint as a matter of course is not submitted to the jury and the jury pool is questioned
about any prior knowledge of the case prior to selection and striking. With respect to
Voigt’s concern that these allegations are published to the public, Voigt has failed to point
to any authority in support of his assertion that there is a possibility that these allegations
will make their way to media outlets as a reason to strike portions of pleadings.
Accordingly, Voigt’s Motion is denied with respect to this claim.
Voigt also objects to the Report’s application of the law regarding Voigt’s entitlement
to immunity under the South Carolina Tort Claims Act (“SCTCA”). Voigt argues that state
law causes of action against a state employee can only be brought pursuant to the SCTCA;
accordingly, Plaintiffs’ request for punitive damages, attorneys’ fees, and costs associated
with their intentional tort claims should be dismissed. The Court disagrees.
The Fourth Circuit Court of Appeals has held that the SCTCA “is not intended to
protect state employees from liability for intentional torts.” Anthony v. Ward, 336 F. App’x
311, 317 (4th Cir. 2009). Accordingly, the SCTCA is not applicable to Plaintffs’ intentional
tort claims and does not bar them from seeking punitive damages, attorneys’ fees, and
costs. See Yates v. Ozmint, C/A No. 2:11-cv-02289-CWH, 2015 WL 12910629 (D.S.C.
Apr. 23, 2015). While Voigt objects to this holding, he does not provide any support for his
objection. Accordingly, Voigt’s Motion is denied with respect to this claim.
Therefore, the Court adopts and incorporates the Magistrate’s Report. Voigt’s
Motion to Dismiss, Partial Motion to Dismiss, and Motion to strike  is GRANTED in part
and DENIED in part as set out.
IT IS SO ORDERED.
May 7, 2018
Spartanburg, South Carolina
s/ Donald C. Coggins, Jr.
United States District Judge
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