Barnes v. Seigler et al

Filing 73

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts Magistrate Judge Rogers' Report and Recommendation and incorporates it herein. Plaintiff's claims against Defendant Seigler are dismissed without prejudice. The case is recommitted to the Magistrate Judge for additional pretrial handling. Signed by Chief Judge Margaret B Seymour on 1/30/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Steven Louis Barnes,

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Plaintiff,
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vs.
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Attorney Gregory William Seigler;
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Lt. Mark Howard,
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Defendants.
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____________________________________)

Civil Action No. 5:11-1156-MBS-KDW
ORDER AND OPINION

On or about March 3, 2011, Plaintiff Steven Louis Barnes, a South Carolina state
prisoner proceeding pro se, filed this action in the Court of Common Pleas for McCormick
County, South Carolina. ECF No. 1-1 at 5. Plaintiff asserted claims for professional negligence
and “fraud via breach of fiduciary duty” against Attorney Gregory William Seigler and a claim
for fraudulent concealment against Lieutenant Mark Howard. Id. at 6-15. Plaintiff subsequently
filed an amended complaint asserting an additional claim of gross negligence against Defendant
Howard. Id. at 30-32. Plaintiff’s amended complaint also alleged additional 42 U.S.C. § 1983
claims against Defendant Howard based on “violation of access of the court,” a “due process
violation via government interference in Plaintiff[‘s] defense at trial,” and “spoilation of
evidence.” Id. at 32-39. Plaintiff’s claims arise out of his being charged, tried, and ultimately
convicted of throwing bodily fluids upon an officer. Plaintiff alleges that Defendant Seigler,
who represented Plaintiff in this matter, breached his professional duty by failing to hire a
private investigator and an expert, by failing to file a “Rule 5 Brady motion,” by failing to keep
Plaintiff reasonably informed about the status of his case, by failing to render competent service,

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and by “breach of fiduciary duty.” Id. at 9. On May 13, 2011, Defendant Howard, with the
consent of Defendant Seigler, removed Plaintiff’s action to this Court. ECF No. 1. Pursuant to
28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the matter was referred to United
States Magistrate Judge Thomas E. Rogers, III, for pretrial handling.
On July 27, 2011, Defendant Seigler filed a motion for judgment on the pleadings as to
Plaintiff’s claims against him. ECF No. 20; see Fed. R. Civ. P. 12(c). Defendant Seigler
contends that Plaintiff has failed to state a claim against him on which relief can be granted, and
that Plaintiff’s complaint does not comply with the requirements of S.C. Code § 15-36-100 in
asserting a claim for professional negligence. Defendant Seigler further contends that because
he was acting as an agent of the state of South Carolina at all relevant times, he cannot be sued
personally under the South Carolina Tort Claims Act. On September 29, 2011, Plaintiff filed a
response in opposition. ECF No. 36.
On October 21, 2011, the Magistrate Judge issued a Report and Recommendation in
which he recommended that Defendant Seigler’s motion to dismiss be granted.1 ECF No. 48.
The Magistrate Judge first noted that a court-appointed criminal defense attorney does not act
under color of state law in providing traditional functions as counsel, and held that Plaintiff had
not stated a valid § 1983 claim against Defendant Seigler.2 Id. at 5. As to Plaintiff’s state law
claim for legal malpractice, the Magistrate Judge noted that under South Carolina Code section

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Plaintiff filed an amended complaint on October 24, 2011. ECF No. 50. Because
Plaintiff’s claims and allegations as to Defendant Seigler have not been altered, the Court
will treat Defendant Seigler’s motion to dismiss as applying to the current amended
complaint.

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Although Plaintiff asserts various § 1983 claims against Defendant Howard, his
complaint does not appear to assert any § 1983 claim against Defendant Seigler.
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15-36-100, “in an action for damages alleging professional negligence against [an attorney] . . .
the plaintiff must file as part of the complaint an affidavit of an expert witness which must
specify at least one negligent act or omission claimed to exist and the factual basis for each claim
based on the available evidence at the time of the filing of the affidavit.” Id. at 6 (quoting S.C.
Code § 15-36-100(B)). Because Plaintiff filed no such contemporaneous affidavit, the
Magistrate Judge recommended that Plaintiff’s claims against Defendant Seigler be dismissed.
On November 2, 2011, Plaintiff submitted a number of objections to the Magistrate
Judge’s Report and Recommendation. ECF No. 55. As relevant here, Plaintiff argues that the
state law expert affidavit requirement is “procedural” rather than “substantive,” and that under
Hanna v. Plumer, 380 U.S. 460 (1965), a federal court should not apply it to the extent that it
conflicts with federal law. Plaintiff further argues that, even assuming the expert affidavit
requirement is considered “substantive,” it does not apply to a claim for constructive fraud, and
that therefore his constructive fraud claim should not be dismissed. Plaintiff also contends that
Defendant Seigler has waived his argument concerning Plaintiff’s failure to file a
contemporaneous affidavit by failing to file an answer after being ordered by the Magistrate
Judge on June 13, 2011, to do so.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). This Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit
the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). This Court is
obligated to conduct a de novo review of every portion of the Magistrate Judge’s report to which
objections have been filed. Id.
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DISCUSSION
The Court initially notes that, contrary to Plaintiff’s assertion, Defendant Seigler did in
fact file an answer on July 13, 2011. ECF No. 16. Furthermore, this filing reveals that
Defendant Seigler had previously filed answers to Plaintiff’s original complaint and amended
complaint in state court. Accordingly, there is no basis for Plaintiff’s argument that Defendant
Seigler had waived any defense.
Plaintiff’s argument that this Court should not apply the state law expert affidavit
requirement is likewise without merit. In cases involving diversity or pendent jurisdiction, a
federal court should apply state substantive law and federal procedural law. See Felder v. Casey,
487 U.S. 131, 151 (1988); Hanna v. Plumer, 380 U.S. 460, 465 (1965). In determining whether
a rule of law should be considered substantive or procedural, the question is whether it would
“significantly affect the result of a litigation for a federal court to disregard a law of a State that
would be controlling in an action upon the same claim by the same parties in a State court.”
Hanna, 380 U.S. at 466 (citation omitted). This inquiry must be conducted in light of the two
aims of the Erie doctrine: to avoid inequitable administration of the law and to discourage forum
shopping. Id. at 467-68. Every district court in the District of South Carolina to consider this
question has held that South Carolina Code section 15-36-100 is substantive state law. See, e.g.,
Alexander v. Rite Aid Corp., 2012 WL 80458 at *2 (D.S.C. Jan. 11, 2012); Millmine v. Harris,
2011 WL 317643 at *2 (D.S.C. Jan. 31, 2011). This Court agrees that to disregard such a law
would significantly affect the result of litigation and encourage forum shopping, and therefore
finds that section 15-36-100 must be applied in the present case. Accordingly, Plaintiff’s claim

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for professional negligence must be dismissed due to his failure to file an expert affidavit
contemporaneously with his complaint.3
Finally, although Plaintiff correctly states that a claim for constructive fraud need not be
accompanied by an expert affidavit, he has not alleged any such claim. Plaintiff’s second cause
of action against Defendant Seigler is for “fraud via breach of fiduciary duty,” which does not
exist under South Carolina law. However, further inspection reveals that Plaintiff’s allegations
are based on breaches of professional duty. Plaintiff alleges that Defendant Seigler “owed
Plaintiff a legal responsibility” to file various motions and that Defendant Seigler breached this
duty by failing to file them and representing to Plaintiff that they were filed. ECF No. 1-1 at 1213. Because Plaintiff’s second cause of action is merely a restatement of his claim for
professional negligence, it must be dismissed for the reasons stated above. Furthermore, even
assuming that Plaintiff intended to state a cause of action for fraud, he has not alleged facts
sufficient to satisfy the elements of fraud under South Carolina law. See Cheney Bros., Inc. v.
Batesville Casket Co., Inc., 47 F.3d 111, 114 (4th Cir. 1995).

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The Court notes that South Carolina Code section 15-36-100(C)(2) states that
“[t]he contemporaneous filing requirement . . . is not required to support a pleaded
specification of negligence involving subject matter that lies within the ambit of common
knowledge and experience, so that no special learning is needed to evaluate the conduct
of the defendant.” However, because the breaches of professional duty alleged by
Plaintiff deal with Defendant Seigler’s exercise of legal judgment, more than “common
knowledge” is required to evaluate whether his actions violate the standard of care owed
by members of his profession.
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CONCLUSION
After a de novo review of the record in this case, the Court determines that Plaintiff’s
objections to the Magistrate Judge’s Report and Recommendation are without merit.
Accordingly, the Court adopts Magistrate Judge Rogers’ Report and Recommendation and
incorporates it herein. Plaintiff’s claims against Defendant Seigler are dismissed without
prejudice. The case is recommitted to the Magistrate Judge for additional pretrial handling.
IT IS ORDERED.
s/ Margaret B. Seymour
Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
January 30, 2012

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