PARKELL v. South Carolina

• Decision Date: 21 September 2009
• Docket Number: C.A. No. 4:07-3009-TLW-TER.
• Court: U.S. District Court — District of South Carolina
• Parties: Judith A. PARKELL, et al., Plaintiffs, v. The State of SOUTH CAROLINA, et al., Defendants.

687 F.Supp.2d 576

Judith A. PARKELL, et al., Plaintiffs, v. The State of SOUTH CAROLINA, et al., Defendants.

C.A. No. 4:07-3009-TLW-TER.

United States District Court, D. South Carolina, Florence Division.

September 21, 2009.

Judith A. Parkell, Nottingham, PA, pro se.

Blake H. Moore, Columbia, SC, pro se.

Patrick John Frawley, Nicholson Davis Frawley Anderson and Ayer, Lexington, SC, Brown William Johnson, Clarke Johnson Peterson and McLean, Jefferson Boone Aiken, III, Aiken Bridges Law Firm, Florence, SC, Kristian Melissa Cross, Susan Pedrick McWilliams, Nexsen Pruet Adams Kleemeier, Joey R. Floyd, Warren C. Powell, Jr., Bruner Powell Robbins Wall and Mullins, Columbia, SC, Clayton M. Custer, Jeffrey Pascoe, Michael J. Bogle, Womble Carlyle Sandridge and Rice, Greenville, SC, for Defendants.

ORDER

TERRY L. WOOTEN, District Judge.

The plaintiffs brought this pro se civil action against the defendants, raising a number of federal and state law claims. Previously, the state defendants were dismissed from this action. The remaining defendants have now moved for summary judgment.

This matter is now before the undersigned for review of the Report and Recommendation ("the Report") filed August 17, 2009, by United States Magistrate Judge Tom Rogers, to whom this case had previously been assigned pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2) (D.S.C.). In his Report, Magistrate Judge Rogers recommends that the motions for summary judgment be granted as to plaintiff's federal causes of action, that the court decline to exercise jurisdiction over the state law causes of action, and that this case be dismissed. On September 4, 2009, plaintiffs filed objections to the Report.

This Court is charged with reviewing the Magistrate's Report and the plaintiff's objections thereto. In conducting this review, the Court applies the following standard:

The magistrate judge makes only a recommendation to the Court, to which any party may file written objections.... The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination. The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case, the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or recommendations.

Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C. 1992) (citations omitted).

In light of this standard, the Court has carefully reviewed, de novo, the Report and the objections thereto and has concluded that the Report accurately summarizes this case and the applicable law. For the reasons articulated by the Magistrate Judge, it is hereby ORDERED that the Magistrate Judge's Report is ACCEPTED (Doc. # 270) and Defendants' motions for summary judgment are GRANTED. This case is dismissed.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

THOMAS E. ROGERS, III, United States Magistrate Judge.

I. INTRODUCTION

Plaintiffs, proceeding pro se, assert twenty causes of action in their Complaint, including federal causes of action under 42 U.S.C. § 1983, 28 U.S.C. § 2254, the Indian Child Welfare Act, the Immigration and Nationality Act, and the Racketeer Influenced and Corrupt Organizations Act. This Court has federal question jurisdiction over these claims pursuant to 28 U.S.C. § 1331. They also assert state law causes of action for wrongful death and survival, intentional infliction of emotional distress, defamation per se, tortious rape and conspiracy to commit sexual assault on a minor, tortious interference with existing and prospective contractual relationships, breach of contract, promissory estoppel, legal malpractice, medical malpractice, violation of S.C.Code Ann. § 20-7-690(A), and civil conspiracy. The Court has supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367. Plaintiffs also assert claims for "violation of kinship rights" and "class action."

Presently before the Court are Doby's Motion for Summary Judgment (Document # 190), Robertson's and Meyer's Motion for Summary Judgment (Document # 211), McFadden's Motion for Judgment on the Pleadings and/or Summary Judgment (Document # 213), Jarrett's and Jenkinson's Motion for Summary Judgment (Document # 214), Flesch's Motion for Summary Judgment (Document # 217), Sobti's Motion for Summary Judgment (Document # 218), Taggart's Motion for Summary Judgment (Document # 219), Wilson's and Dale's Motion for Summary Judgment (Document # 220), and Landrum's, Yvonne Davis', Hawkins, Culley's, Love's, Taylor's, Omelchenko's and Gloria Davis' Motion for Summary Judgment (Document # 221).¹

All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e),DSC. Because the pending motions are potentially dispositive, this Report and Recommendation is entered for review by the district judge.

II. RELEVANT FACTS AND PROCEDURAL HISTORY

A. The Parties

Plaintiff Parkell is Plaintiff Moore's mother. Plaintiff Moore was the adoptive father of the minor children at issue in this case. He is a Board Certified General Surgeon and Fellow of the American College of Surgeons who practices medicine in Kingstree, South Carolina.

Defendant Doby is an attorney who represented Department of Social Services (DSS) in the Abuse and Neglect case and the Termination of Parental Rights (TPR) case. McFadden is an attorney who represented the Moores for a period of time (between March of 2003 and August 25, 2003) in the abuse and neglect case filed by DSS.

Robertson and Meyer are attorneys and, at all times relevant to this action, served as legal counsel to Williamsburg Regional Hospital. Jenkinson is an attorney who has and still does represent Williamsburg Regional Hospital on certain matters.

Jarrett is an attorney who is partnered with Jenkinson and who has represented Moore in the incorporation of his medical practice and to purchase a home. He also represented Plaintiff's wife in a property damage claim. He has also been retained by DSS from time to time as a contract attorney to prosecute abuse and neglect cases.

Taggart was an attorney who served as general counsel for the S.C. Guardian ad litem program beginning in 2005. She became involved with the DSS TPR case against Moore when Moore appealed the decision on June 27, 2005. A Suggestion of Death (Document # 267) was filed on June 3, 2009, indicating that Taggart passed away on April 2, 2009. Dale was the court-appointed Guardian ad Litem for the children at issue in this case for the first DSS case filed in March of 2003. She was replaced by Gloria (Deborah) Wilson² on July 9, 2003. Gloria (Deborah) Wilson remained as Guardian ad Litem for the children until the completion of the case on or about August 28, 2007.

Flesch is a licensed social worker who was retained by Managed Treatment Services (MTS), a division of DSS, in 2003 to treat the three minor children at issue in this case for previously-diagnosed posttraumatic stress disorder. Dr. Sobti is a psychiatrist who was employed by the South Carolina Department of Health between May of 2003 and October of 2003, and who treated one of the children at issue in this case. Landrum is the Program Director for MTS. Yvonne (Avone) Davis³ is a Human Services Coordinator I/Children's Services Coordinator III with MTS. Hawkins was a Clinical Services Program Director with MTS from 2003 until 2007. Culley is a psychologist who worked as the Director of Clinical Services for MTS in 2003.

Love is a Human Services Supervisor for DSS in Williamsburg County and was serving in that position at the times relevant to this action. Taylor was a Human Services Specialist II with DSS at all times relevant to this action. Omelchenko is a Human Services Specialist II with DSS in Clarendon County and was serving in that position at the times relevant to this action. Gloria Davis was a Foster Care Worker with DSS in Williamsburg County during 2003.

B. The South Carolina Family Court Actions

This action arises out of three South Carolina family court matters beginning in 2003. On March 7, 2003, DSS took Blake Moore, M.D. ("Dr. Moore") and Angelalynn Moore's three children⁴ into emergency protective custody. South Carolina Department of Social Services v. Blake Moore & Angelalynn Moore, 03-DR-45-140. Doby Aff. at ¶ 5. DSS took the children into emergency protective custody because of alleged abuse and/or neglect. Id. at ¶ 5-7. Thereafter, DSS elected to pursue the termination of the Moore's parental rights and a new action, an action for the termination of parental rights (TPR case), was filed by DSS on August 20, 2004. South Carolina Department of Social Services v. Blake Moore & Angelalynn Moore, 04-DR-45-357. Id. at ¶ 9.

The trial of the termination of parental rights lasted for five days (May 2, 2005-May 6, 2005). Id. at ¶ 11. The Honorable Berry L. Mobley issued an Order on June 27, 2005 terminating the parental rights of Blake Moore.⁵ Id. at ¶ 12 and Ex. 1 to Doby Aff. Moore appealed the June 27, 2005, Order of Judge Mobley to the South Carolina Court of Appeals. Id. at ¶ 13. In December of 2006, the South Carolina Court of Appeals Affirmed the June 27, 2005 Order of Judge Mobley. Id. at ¶ 14 and Ex. 2 to Doby Aff. No further appeals were taken and the parental rights of Moore were terminated.

In addition to the TPR case, DSS filed another action against Moore, alleging sexual abuse with one of the...