Childress v. City of North Charleston
| Decision Date | 06 December 2021 |
| Docket Number | 2:21-cv-02843-DCN-MGB |
| Parties | Tessa R.R.G.C. Childress, Plaintiff, v. City of North Charleston, et al., Defendants. |
| Court | U.S. District Court — District of South Carolina |
This is a civil action under 42 U.S.C. § 1983. Plaintiff appearing pro se, filed this action in state court and it was removed to federal court on September 2, 2021. (Dkt. No. 1.) This matter is before the Court on: (1) a Motion to Dismiss filed by Defendants Charleston County Sheriff's Office (“CCSO”) and Deputy Harger (Dkt. No. 6); (2) a Motion to Dismiss filed by Defendants City of North Charleston, P.O. John O'Connell, P.O. S Fortier, Sgt. Wilson, and P.O. Carwile (Dkt. No. 7); (3) Plaintiff's Motion to Stay (Dkt. No. 45); (4) Plaintiff's Motion for Protective Order (Dkt. No. 48) and (5) Plaintiff's Motion to Appoint Counsel (Dkt. No. 42).
Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge. Under this authority, the undersigned is authorized: (1) to review the Motions to Dismiss and submit a recommendation to the District Judge; (2) to review Plaintiff's Motion to Stay, Motion for Protective Order, and Motion to Appoint Counsel and to issue a final ruling on these motions. For the following reasons, the undersigned recommends denying in part and granting in part the Motions to Dismiss. The undersigned further grants in part and denies in part Plaintiff's Motion to Stay, grants Plaintiff's Motion for Protective Order, and denies Plaintiff's Motion to Appoint Counsel.
This lawsuit arises from Plaintiff's arrest for alleged misuse of 911. The Complaint alleges that on July 11, 2019, Defendants arrested Plaintiff “without Miranda Rights being issued and without a court order or a Court Warrant.” (Dkt. No. 1-1 at 10.) Plaintiff alleges Defendants dragged her out of her home in North Charleston in handcuffs “to be further violently brutalized by the Defendants, particularly Defendant North Charleston Police Officer John O'Connell.” (Id.) She alleges that she called the “local North Charleston emergency 911 telephone number because North Charleston police officer John O'Connell had begun to yell at Plaintiff and verbally threatened Plaintiff while he was inside Plaintiff's residence.” (Id. at 18.) She alleges Defendant O'Connell “administered undue force to handcuffed Plaintiff while violently thrusting Plaintiff into the backseat of a North Charleston Police Vehicle.” (Id. at 10-11.) Plaintiff alleges O'Connell did not administer her Miranda Rights when she entered his car and “continued oral communications via verbalized American English grammar invoking Plaintiff's responses without having an attorney present.” (Id.) Plaintiff alleges she was “ankle cuffed by Charleston County Sheriff without being informed of Plaintiff's Miranda rights” and was denied medical services “at the scene of the police brutality located at the employee parking lot entrance easement of Charleston County Public Library.” (Id. at 23-24.) Plaintiff alleges she was then sent to the Charleston County Sheriff Al Cannon Detention Center “without being informed of Plaintiff's Miranda Rights.” (Id. at 24.) She alleges the “intake staff of the detention center didn't have any warrant and said they would make the reason for me being it into one [sic].” (Id.) According to Plaintiff, she met with the detention center nurse, but the nurse did not take any photographs of Plaintiff's injuries. (Id.)
According to Plaintiff, she “had previously called the non-emergency telephone number, on July 11, 2019, due to violations of a South Carolina State Law labeled South Carolina Underground Facility Damage Prevention Act [Prevention Act].”[1] (Id. at 18.) She alleges a Charleston County Sheriff's officer instructed her to call this number after she “emailed photographs of the violations of the [Prevention Act] to the Charleston County Sheriff and to the City of North Charleston Police Department.” (Id.) Plaintiff alleges she “had been verbally harassed and threatened, with threats of death, by one of the people who had for several days previous to July 11, 2019, been violating and who was continuing to violate the [Prevention Act] on July 11, 2019.” (Id. at 18-19.) Plaintiff alleges “local law enforcement agencies . . . still have not contacted Plaintiff to appropriately manage the violations of the [Prevention Act] nor regarding the threats of death reported via email directly to the local law enforcement agencies of Charleston County, South Carolina and the City of North Charleston.” (Id. at 19.)
Plaintiff alleges that prior to July 11, 2019, she had “been attacked by local law enforcement on four (4) different dates of incident.” (Id. at 19.) She alleges that the July 11, 2019 “police officers' brutality” “re-injured” injuries she suffered from a prior police brutality incident on March 4, 2015. (Id. at 20-21.) Plaintiff alleges she was “still recovering from an outpatient procedure from the previous day July 10, 2019 wherein Plaintiff was fully sedated . . . for injuries of Plaintiff's left hip that was completely dislocated by police officers of the same North Charleston Police Department on March 4, 2015, at the same residential property of Plaintiff.” (Id. at 23.)
Plaintiff appears to allege that Defendants' actions violated the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. (Id. at 11-15.) She brings claims under 42 U.S.C. § 1983 for violation of her constitutional rights as well as a claim for kidnapping under 18 U.S.C. § 1201 and a claim for “conspiracy against rights” under 18 U.S. Code § 241. (Id. at 1516.) With respect to the alleged constitutional violations, the undersigned liberally construes the Complaint as alleging claims for excessive force, unlawful search and seizure,[2] and general due process violations for failure to provide Plaintiff with her Miranda rights. Plaintiff also appears to bring state law claims for kidnapping, conspiracy, false imprisonment, and assault and battery under South Carolina law. (Id. at 8.)
Defendants removed this civil rights action to federal court on September 2, 2021. (Dkt. No. 1.) On September 9, 2021, a Motion to Dismiss was filed by Defendants CCSO and Deputy Harger (Dkt. No. 6) and a Motion to Dismiss was filed by Defendants City of North Charleston (“City”), P.O. John O'Connell, P.O. S. Fortier, Sgt. Wilson, and P.O. Carwile (Dkt. No. 7). On September 10, 2021, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if she failed to adequately respond to the motions. (Dkt. No. 23.) From October 4-12, 2021, Plaintiff filed three response briefs to the pending Motions to Dismiss. (Dkt. Nos. 18; 20; 21.) On October 26, 2021, the Court granted Plaintiff's Motion for an Extension of Time to respond to the Motions to Dismiss. (Dkt. Nos. 15; 16; 31; see also Dkt. No. 20 at 8.) Specifically, the Court found that to the extent Plaintiff wished to file any additional material in response to Defendants' Motions to Dismiss, her response was due by November 15, 2021. (Dkt. No. 31 at 11.) Plaintiff filed another response brief to the Motions to Dismiss on November 12, 2021. (Dkt. No. 43.) Defendants have not filed any reply briefs to their motions. The motions are ripe for review.
On November 15, 2021, Plaintiff filed a Motion to Appoint Counsel (Dkt. No. 42) and on November 17, 2021, Plaintiff filed a Motion to Stay (Dkt. No. 45). Defendants responded to both motions on November 22, 2021 (Dkt. Nos. 46; 47). Plaintiff has not filed reply briefs to these motions. On November 23, 2021, Defendants filed a Motion for Protective Order. (Dkt. No. 48.) Plaintiff's motions are ripe for review.
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
Because Plaintiff is representing herself, these standards must be applied while liberally construing her filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Motion to Dismiss filed by Defendants CCSO and Deputy Harger argues for dismissal of the claims against them based on the following: (1) Deputy Harger in his official capacity and CCSO are entitled to Eleventh Amendment immunity; (2) Plaintiff failed to plead...
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