Opinion
C. A. 4:22-1746-JD-KDW
01-19-2024
Terrell Herbert, Plaintiff, v. D.S.S.; Tiffany Brooke Allen; Rosa Agnes; and Shauntegia Rivers, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Plaintiff Terrell Herbert (“Herbert” or “Plaintiff”), proceeding pro se, filed this action against “D.S.S.,” identified by Defendants as South Carolina Department of Social Services (“SCDSS” or “DSS”); Darlington County SCDSS counsel Tiffany Brooke Allen (“Allen”); and SCDSS workers: Rosa Agnes (identified by Defendants as Agnes Rosa (“Rosa”)), a former Darlington County DSS investigator; and Shauntegia Rivers (“Rivers”), the current Darlington County SCDSS foster care case manager [collectively “Defendants”; Allen, Rosa, and Rivers are sometimes referred to herein as the “Individual Defendants”]. Plaintiff alleges he was falsely charged with abusing his minor son (T.H.), his son was placed in foster care for “no reason,” his son was abused in foster care, and his son was moved to care in Pennsylvania against Plaintiff's will. Pl. Suppl. Compl. 5, ECF No. 1-1. Plaintiff submits this court has jurisdiction based on diversity of citizenship, indicating he is a citizen of Pennsylvania,Defendants are citizens of South Carolina, and he seeks more than $75,000 in damages. Id. at 3-5. Subsequent to Defendants' filing an Answer to the Supplemental Complaint, ECF No. 30, the court issued a scheduling order permitting discovery, ECF No. 43. After the discovery period ended, Defendants filed a Motion for Summary Judgment, ECF No. 69, see also sealed documents available to authorized users at ECF No. 68;in which they seek summary judgment as to all of Plaintiff's claims. Plaintiff filed a response, ECF Nos. 73, 78; to which Defendants filed a Reply, ECF No. 76. Having reviewed the parties' submissions and the applicable law, the undersigned recommends that Defendants' Motion for Summary Judgment, ECF No. 69, be granted and this matter be ended.
The undersigned notes that, although Plaintiff avers he is a citizen of Pennsylvania (Philadelphia), ECF No. 1-1 at 4, he also provided a South Carolina address when bringing this action, id. at 2. Defendants do not dispute jurisdiction.
Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the undersigned submits this Report and Recommendation (“Report”) on this pending dispositive motion.
The sealed documents, which include the bulk of the DSS court file in the underlying matter, are available to authorized users at ECF No. 68.
As it must, the court considers material facts in the light most favorable to Plaintiff, the nonmoving party. Because Plaintiff's filings include scant discussion of the facts, much of the factual background is derived from Defendants' memorandum and exhibits. Plaintiff's dispute of certain facts is noted. The court acknowledges Plaintiff's general disagreement with many portions of and actions taken in the family court matter. However, the court will not disturb the findings of the family court herein. The factual recitation of what transpired in that matter is provided for completeness.
On November 16, 2020, SCDSS received a report from a resource officer (“SRO”) at the school Plaintiff's then-eight-year-old son, “T.H.,” attended. The SRO reported to SCDSS then-investigator Agnes Rosa that Plaintiff had “punched the child in the chest and pushed him on the school grounds before the beginning of school that day.” Aff. of former SCDSS Investigator Defendant Rosa ¶ 1 (“Rosa Aff.”), ECF No. 69-3. When the SRO and Rosa interviewed T.H. at school that day T.H. “reported that his father punched him in the left side of his chest with a closed fist because he forgot to bring his computer tablet to school.” Id. ¶ 3. T.H. further reported that Plaintiff previously had hit his stepmother and seven-month-old stepbrother. T.H. also indicated there was marijuana use in the home and “‘the family'” had taught him “how to roll and smoke a joint.” Id. The SRO and Investigator Rosa interviewed Plaintiff; Plaintiff denied having hit T.H. at school that morning but noted he had pushed him. Plaintiff denied reports of use of marijuana in the home. Id. ¶ 4; see also Compl. for Removal, ECF No. 68 at 5-13 (sealed); Dec. 2, 2020 Dictation re: Child and Family Team Meeting (“Case Dictation”), ECF No. 68 at 16-17 (sealed); September 2022 Merits Order, ECF No. 68 at 42-48 (sealed).
Rather than have T.H. placed in emergency protective custody immediately Rosa made arrangements for T.H. to go into kinship care with an aunt while the investigation continued. Rosa Aff. ¶ 5. Plaintiff had identified his aunt as a possible kinship caregiver. She was contacted and agreed to let T.H. stay in her home under a kinship care agreement. Plaintiff signed the agreement allowing T.H. to go into kinship care with his aunt. See Kinship Care Agreement, ECF No. 68 at 15 (sealed); see also Rosa Aff. ¶¶ 5-6. Rosa indicates part of the kinship care agreement required Plaintiff to take T.H. for a forensic interview, but Plaintiff missed the appointment. Rosa Aff. ¶ 6; see also Compl. for Removal, ECF No. 68 at 5-13 (sealed), Case Dictation, ECF No. 68 at 16-17 (sealed); September 2022 Family Court Merits Order, ECF No. 68 at 42-48 (sealed).
On Monday, November 30, 2020, the kinship caregiver advised SCDSS she could no longer care for T.H. Rosa attempted to contact Plaintiff to discuss alternate placements for T.H.; however, Plaintiff did not answer his phone or return her calls. Rosa Aff. ¶ 7; See Case Dictation, ECF No. 68 at 16-17 (sealed); December 2020 Family Court Probable Cause Order, ECF No. 68 at 18-22 (sealed). At that time, T.H. was taken into emergency protective custody by a deputy with the Darlington County Sheriff's Office and placed by SCDSS in a licensed foster care home. Rosa Aff. ¶ 7; Compl. for Removal ¶ 4, ECF No. 68 at 8 (sealed). Pursuant to South Carolina law, when a child is taken into emergency protective custody by law enforcement, SCDSS must immediately take legal custody of the child, which it did. S.C Code Ann. § 63-7-700. Legal custody includes the right to determine where the child shall live. S.C. Code Ann. §§ 63-7-660 and 63-7-20(13).
On December 2, 2020, SCDSS filed a Complaint for Removal in Darlington County family court. Defendant Allen, the Darlington County SCDSS attorney, signed the Complaint, which was supported by an Affidavit of Reasonable Efforts signed by Defendant Rosa. See Compl. for Removal, ECF No. 68 at 5-13 (sealed).
Also on December 2, 2020, SCDSS convened a Child and Family Team meeting; Plaintiff also attended this meeting. See Case Dictation, ECF No. 68 at 16-17 (sealed). At the meeting, Rosa explained to Plaintiff why the kinship care placement had ended and why T.H was taken into emergency protective custody and placed in a foster home. Alternative future placements were also discussed. Plaintiff requested that SCDSS look into placing T.H. at the home of his father, David Herbert, in Florence, South Carolina and at the home of his sister, Tamika Madison, Glenolden, Pennsylvania. See id.; see also Rosa Aff. ¶ 9; Affidavit of SCDSS Investigations Supervisor Shaunya Miller Bright ¶¶ 2-4, ECF No. 69-6 (discussing the December 2, 2020 meeting and indicating she was Rosa's supervisor at the time). Both placements would require preplacement investigation and approval because neither was a licensed foster home; DSS began that process.
As required by S.C. Code Ann. § 63-7-210, the Darlington County family court conducted a probable cause hearing within 72 hours of T.H.'s foster-care placement. At the December 3, 2020 hearing, which Plaintiff attended, the family court judge found probable cause for taking T.H. into emergency protective custody and ordered that T.H. continue in the legal custody of SCDSS while its investigation continued. See 2020 Probable Cause Order, ECF No. 68 at 18-22 (sealed). That order was not appealed. Because Plaintiff requested a trial a Darlington County family court judge found exceptional circumstances warranted a continuance of the merits hearing scheduled for December 17, 2020. T.H. remained in foster care. See Order of Continuance, ECF No. 68 at 23-24 (sealed). The merits hearing was rescheduled for March 4, 2021, in Darlington County family court. Plaintiff and his appointed attorney appeared and requested another continuance so that time could be set aside for a trial. The continuance was granted. T.H. remained in foster care. See March 4, 2021 Order of Continuance, ECF No. 68 at 25-27 (sealed).
During an April 5, 2021, visitation with T.H. at the SCDSS office in Hartsville, S.C., Plaintiff reported to the assigned foster care manager for T.H. from March 12, 2021 through June 14, 2021, Defendant Shauntegia Rivers, that T.H. had been struck by his foster parents. Rivers reported this allegation to her supervisor, Shauntelle Coe. Rivers Aff. ¶¶ 2-4, ECF No. 69-4. Rivers went to the foster home that day; interviewed the foster mother, foster father, and T.H.; and concluded no physical abuse had occurred in the foster home. Rivers Aff. ¶ 4. At that time, however, the foster parents requested that the child be moved to another foster home. Id. Later on April 5, 2021, Rivers returned to the office, began dictation to report the situation, and began the Universal Application to change T.H.'s placement. Rivers completed the Universal Application and provided it to her supervisor, Coe, for review and finalization at approximately 5:00 p.m. on April 6, 2021. Id. ¶¶ 5, 6. As Rivers was scheduled for annual leave beginning on April 6, 2021, additional steps were to be taken by Coe. Coe Aff. ¶¶ 5-6, ECF No. 69-5. Coe reviewed and approved the Universal Application on April 7, 2021, and forwarded it to the Pee Dee Placement Unit so that alternative placement could be located for T.H. Coe. Aff. ¶ 6. Coe was advised on April 8, 2021 that a new placement had been located; T.H. was moved to the new placement on April 9, 2021. Coe. Aff. ¶ 7. There are no allegations or evidence of any abuse between April 5 and April 9, 2021.
On May 4, 2021, SCDSS moved to transfer venue of the child protective services action from Darlington County to Lee County. The grounds for the motion were that “. . . Terrell Herbert has engaged in a campaign of harassment and complaint filing against every employee he has encountered at Darlington County DSS, to include but not limited to the County Director and the undersigned [Defendant Allen, Darlington County DSS attorney].” Mot. Transfer Venue 1, ECF No. 68 at 28; see id. at 28-29 (sealed). Based on Plaintiff's expressed belief in a conspiracy against him by Darlington County DSS and complaints that created a conflict of interest, SCDSS requested that venue be transferred to Lee County so Plaintiff could “feel like he [was] being given a fair trial.” Id. at 28-29.
The motion was granted after a May 13, 2021 hearing. Venue was transferred to Lee County family court. Order Transferring Venue, ECF No. 68 at 30-31 (in which the court found it was “clear that [Plaintiff] believes there is a conspiracy set forth by all parties involved in this matter [and] [i]t would not be prudent to allow the case to continue in Darlington County.”) (sealed). That order was not appealed. T.H. remained in foster care.
On July 20, 2021, a hearing was held in Lee County family court. Plaintiff was present and appeared pro se. Also present were Tamika Madison, T.H.'s paternal aunt and Plaintiff's sister who had been approved for placement of T.H. at her home in Glenolden, Pennsylvania; and David Herbert, T.H.'s paternal grandfather; who had been approved for placement of T.H. at his home in Florence, SC The court noted that further information was required to determine regarding eligibility for board payments if T.H. were placed with Plaintiff's sister in Pennsylvania. Legal custody of T.H. remained with SCDSS; T.H. was placed in David Herbert's home in Florence. Plaintiff requested an attorney, and one was appointed for him. The merits hearing on the case was continued. The order provided for supervised visitation between Plaintiff and T.H. and indicated there was to be no discussion of the case during any visitation with T.H. See Order of Continuance, ECF No. 68 at 33-34. That order was not appealed.
At a December 7, 2021 hearing, SCDSS sought to have the placement of T.H. changed from the home of David Herbert in Florence to the home of Tamika Madison in Pennsylvania. SCDSS further sought the court's order that Plaintiff only communicate with SCDSS personnel through counsel. Plaintiff and his attorney were present. Plaintiff wanted to have T.H. returned to him and objected to sending T.H. to Pennsylvania. The court granted SCDSS's motion. Custody of T.H. remained with SCDSS. SCDSS was permitted to place T.H. with his paternal aunt, Tamika Madison in Glenolden, Pennsylvania whose home had been approved under the Interstate Compact on the Placement of Children (“ICPC”). Plaintiff was ordered to communicate with SCDSS through his attorney. Plaintiff was permitted virtual visitation at the discretion and supervision of Madison. Order, ECF No. 68 at 38-41 (sealed). That order was not appealed.
A merits hearing took place on February 15, 2022 in the Lee County family court. The court determined that SCDSS had failed to prove by a preponderance of the evidence that Plaintiff had “used excessive corporal punishment or that he abused or neglected.” Order 7, ECF No. 68 at 48 (sealed). The court ordered that SCDSS was to return T.H. to Plaintiff's custody. That order was not appealed.
This action followed.
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere 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). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a cognizable claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
III. Analysis
A. Plaintiff's Complaint On June 3, 2022, Plaintiff, proceeding pro se, initiated this action. ECF No. 1. After responding to several proper-form orders from the undersigned, Plaintiff submitted a Supplemental Complaint, ECF No. 1-1, as well as other necessary documents for this matter to be served on DSS, Allen, Agnes Rosa, and Rivers as Defendants. Both his initial Complaint, ECF No. 1, and his Supplemental Complaint, ECF No. 1-1, are completed on a court-provided Complaint form. In both ECF No. 1 and 1-1, Plaintiff checked the box indicating his basis for jurisdiction in this court is “Diversity of citizenship,” under 28 USC § 1332. ECF No. 1 at 3; ECF No. 1-1 at 3.
Plaintiff's “Statement of the Case” follows:
Tiffany Allen - filed false charges on me on 12/2/2020.
Rosa Agnes - Took my son from school and placed him in foster care for no reason. 11/30/2020 at 2:00 p.m. from Pate Elementary.
Ms. Rivers took my son back to a foster home after my son was abused [there] ¶ 4/5/2021.
ECF No. 1-1 at 5. In the portion of his Complaint in which he is to set out the relief requested, Plaintiff set forth the following:
My son was held in foster care for two years then taken out, and sent to Glendon, Pa against my will. My son was also abused twice, and DSS switched the venue to Lee County. My son still wakes up from his sleep crying from nightmares.
ECF No. 1-1 at 5. Plaintiff also indicates, “I lost my job, and was forced to pay hotel fees for two years because I'm not a citizen of this State. I also lost my $114,000 house due to lack of income by the loss of my job.” Id.
B. Defendants seek summary judgment as to all claims
Other than to indicate he was pursuing claims based on diversity of citizenship-as opposed to federal-law-based claims-Plaintiff does not delineate what causes of action he is pursuing. Defendants seek judgment as a matter of law as to all claims. A portion of Defendants' Motion treats Plaintiff's claims as being based on federal law, particularly a denial of constitutional rights in violation of 42 U.S.C. § 1983.
1. Claims Plaintiff asserts on behalf of his minor son
Defendants first move for summary judgment as to any damages Plaintiff seeks that are attributable to his son, rather than to himself. Defs. Mem. 7-8. As noted by Defendants Plaintiff alleges his son was “placed [] in foster care for no reason” and placed back in a foster home after he had been abused there. ECF No. 1-1 at 5. Plaintiff also asserts that his son was abused and still has nightmares. Id. Citing case law, Defendants argue summary judgment is appropriate as to claims Plaintiff attempts to bring on behalf of his minor son.
Plaintiff does not respond to this portion of Defendants' argument.
The undersigned agrees with Defendants. The law is clear that a pro se litigant such as Plaintiff may pursue only damages he allegedly incurred, not damages his minor child incurred. As he is proceeding pro se, Plaintiff may pursue damages that he allegedly incurred. Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005) (holding that “non-attorney parents generally may not litigate the claims of their minor children in federal court.”).
Summary judgment should be granted as to any claims Plaintiff, a non-attorney, purports to bring on behalf of T.H. In any event, the court also considers the additional grounds for summary judgment as argued by Defendants.
2. Claims arguably brought pursuant to 42 U.S.C. § 1983
Although Plaintiff's Complaint indicates it is bringing only claims based on diversity of citizenship-that is, state-law-based claims-Defendants' Motion considers Plaintiff to have brought claims pursuant to 42 U.S.C. § 1983, including a constitutional claim as to the alleged abuse Plaintiff's son, T.H., incurred while under foster care. Defs. Mem. 8-11. As an initial matter, the court notes that Plaintiff does not purport to bring federal-law-based claims. To the extent Plaintiff's Complaint is construed as including claims brought pursuant to Section 1983, and to the extent Plaintiff is permitted to pursue such claims on behalf of his minor child, the undersigned agrees with Defendants' analysis and argument that summary judgment is appropriate.
As to Plaintiff's claim that T.H. was returned to a foster-care home where he had been placed despite an allegation of abuse at that home, Defendants assert that, even if such a claim were raised summary judgment is appropriate because there is no evidence of deliberate indifference on the part of DSS, Rivers, or anyone affiliated with DSS. Defs. Mem. 8-9. As acknowledged by Defendants, under certain situations in which a state has involuntarily removed a child from his home, the protections of the Due Process Clause are triggered. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989). As the Fourth Circuit held in Doe ex rel. Johnson v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 175 (4th Cir. 2010),
however, this includes a duty not to make a foster care placement that is deliberately indifferent to the child's right to personal safety and security. This does not mean that social workers will be duty-bound to protect the child from unknown harm or dangers. Nor “does [it] mean that every child in foster care may prevail in a section 1983 action against state officials based on incidental injuries or infrequent acts of abuse.”
Doe, 597 F.3d at 175 (quoting Taylor by and through Walker v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987)).
Importantly, the court held that “negligence, and even carelessness, on the part of such officials that results in harm to the child will not support a claim.” 597 F.3d at 175. Rather, only situations in which “it is alleged and the proof shows that the state officials were deliberately indifferent to the welfare of the child,” may liability be imposed. Doe, 597 F.3d at 175 (quoting Taylor, 818 F.2d at 797. Such “[a] claim of deliberate indifference, unlike one of negligence, implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice.” White ex rel. White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997)). Here, there is no indication T.H. suffered an actual injury while in DSS custody. Further, the facts indicate that, as soon as DSS and its workers learned of an allegation of abuse by a foster family Rivers went to investigate the matter. Her investigation found no credible evidence of abuse. She promptly reported her findings. Further, within four days T.H. was moved to a different location. There are no allegations of abuse during the interim period.
Similarly, Plaintiff cannot establish any constitutional violation based on DSS's removal of T.H. from Plaintiffs custody in the first place. The court found probable cause for the removal. See White by White v. Chambliss, 112 F.3d 731, 735-36 (4th Cir. 1997) (noting constitutionality of South Carolina law permitting removal of children when “there is probable cause to believe that by reason of abuse or neglect there exists an imminent danger to the child's life or physical safety.” S.C. Code § 20-7-610(F)(2); see also S.C. Code § 20-7-610(A)(1)).
In his brief opposition to summary judgment Plaintiff reiterates his claims that T.H. was abused while in foster care, including a “Victim's Information Report” from the Darlington County Sheriff's Office that seems to be related to the inquiry into T.H.'s treatment in foster care. Pl. Mem. 1, ECF No. 73; Victim's Information Report, ECF No. 73-1 at 1. This Report offers no information as to the substance of any claim of abuse or investigation of alleged abuse. Plaintiff simply has not provided any evidence to support an argument that Defendants acted with “deliberate indifference” to his or T.H.'s rights. Nor can he dispute that the court made a finding of probable cause when the case began. Similarly, Plaintiff's attachment of a report he made to Pennsylvania authorities concerning his son's placement, ECF No. 78, does not bolster any claim of deliberate indifference on the part of the SCDSS. At this juncture, the court is not looking behind the findings of the family court; rather, it is examining the information provided to determine whether facts support a claim of “deliberate indifference” to rise to the level of a constitutional violation. Nothing presented by Plaintiff rises to that level. Summary judgment is appropriate.
Finally, to the extent Plaintiff alleges a violation of procedural due process based on the length of time between when T.H. was taken into protective custody and the time T.H. was returned to Plaintiff, such a claim fails. The records show that Plaintiff was made aware of hearings, that his counsel sought continuances at times, and that his conduct precipitated the transfer of venue from Darlington to Lee County. Finally, to the extent Plaintiff now complains that T.H. should not have been transferred to his sister in Pennsylvania, such complaint is not of constitutional magnitude. The sister's home was approved using the appropriate process, and SCDSS had legal custody of T.H. at the time. This gave it the right to determine where T.H. should be placed. Again, the court will not revisit the family court's findings.
In this case the facts construed in the light most favorable to Plaintiff do not present an actionable claim of a violation of any constitutional right. Simply put, Plaintiff has not demonstrated deliberate indifference and cannot demonstrate a Section 1983 claim against Defendants. Further, this court will not look behind final, unappealed orders of the family court in this matter. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (holding that a federal district court lacks authority to review final determinations of state or local courts); Jordahl v. Democratic Party, 122 F.3d 192, 199 (4th Cir. 1997). This prohibition on review of orders or findings made in connection with state court proceedings is implicated when to rule in favor of a plaintiff would necessarily require the federal court to overrule, or otherwise find invalid, various orders, rulings, and findings made in connection with the state court proceedings. See Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293-94, (2005); see also Davani v. Va. Dep't of Transp., 434 F.3d 712, 713 (4th Cir. 2006) (“Exxon requires us to examine whether the state-court loser who files suit in federal district court seeks redress for an injury caused by the state-court decision itself.”).
To the extent Plaintiff is bringing claims pursuant to 42 U.S.C. § 1983, such claims are subject to summary judgment.
3. Immunity Defendants argue summary judgment is also appropriate as to prosecutor Allen and Case worker Agnes Rosa because they are entitled to prosecutorial immunity. Defs. Mem. 11-12. Plaintiff does not address this argument in his opposition.
The undersigned agrees with Defendants. Allen submitted the Complaint for Removal. Rosa verified the Complaint by affidavit. All actions undertaken that “could be deemed prosecutorial” are entitled to absolute prosecutorial immunity in this matter. Vosburg v. Dep't of Social Servs., 884 F.2d 133, 138 (4th Cir. 1989). The social worker's absolute immunity for prosecutorial actions extends to liability resulting from the filing of a removal petition. Id. The Vosburg court relied primarily on two Supreme Court decisions. In Imbler v. Pachtman, 424 U.S. 409, (1976), the Supreme Court held that prosecutorial immunity is necessary to allow the prosecutor to exercise independent judgment without the fear or threat of § 1983 litigation. Id. at 424-26. In Butz v. Economou, 438 U.S. 478, (1978), the Supreme Court held that “[a]bsolute immunity is . . . necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.” Id. at 512. Absolute immunity is designed to protect the judicial process. Although DSS case workers technically do not prosecute criminal cases, they have the responsibility to implement state laws to protect children. “[T]he filing of a removal petition is, in essence, the start of judicial proceedings against the parent or guardian of a minor child, and the duties of the social worker at that point are those of an advocate in that process.” Vosburg, 884 F.2d at 137.
Plaintiff's allegations regarding Allen and Rosa relate to the initiation and continued prosecution of the family court case. See generally ECF Nos. 1, 1-1. Because Allen and Rosa have absolute immunity for initiating and prosecuting cases, they are also entitled to summary judgment as to any Section 1983 claims brought against them.
Defendants do not seek summary judgment on immunity grounds as to Rivers. The court notes that, to the extent her activities in the case related to the prosecution of the case she, too, would be entitled to such immunity. In any event, any Section 1983 claims against her are subject to summary judgment for the reasons discussed above.
4. Claims arguably brought under South Carolina law Out of an abundance of caution, because Plaintiff indicated he was pursuing this litigation based on diversity of citizenship, the court also briefly considers whether Plaintiff's Complaint could be construed to contain any viable claims based on South Carolina law. It does not.
As an initial matter, any state-law-based claim against DSS or its employees would be subject to the South Carolina Tort Claims Act (“SCTCA”), which provides that agencies such as DSS “are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages[.].” S.C. Code Ann. § 15-78-40. One such limitation provides that the SCTCA is the exclusive remedy for torts committed by employees of state agencies. S.C. Code Ann. § 15-78-70(a). The SCTCA specifies that in the event an employee is individually named, “the agency or political subdivision for which the employee was acting must be substituted as a party defendant.” S.C. Code Ann. § 15-78-70(c). The undersigned further notes that suits brought under the SCTCA against SCDSS are to be brought in state court. See S.C. Code Ann. § 15-78-20(e) (explaining that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suits only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another State); see also Laudman v. Padula, No. 3:12-2382-SB; 2013 WL 5469977, at *7 (D.S.C. Sept. 30, 2013) (explaining that under the SCTCA, the State of South Carolina consents only to suit in the State of South Carolina).
Even if potential tort claims are considered further, the SCTCA carves out several exceptions to its general waiver of immunity. Potentially relevant here is S.C. Code Ann. § 15-7860(25), which provides that a “governmental entity is not liable for a loss resulting from . . . responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any . . . patient . . . or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (emphasis added). “Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.” Etheredge v. RichlandSch. Dist. One, 534 S.E.2d 275, 277 (S.C. 2000). In other words, “[i]t is the failure to exercise slight care.” Id. Although whether conduct constitutes gross negligence is normally a mixed question of law and fact, “when the evidence supports but one reasonable inference, the question becomes a matter of law for the court.” Id.
To begin, the court recommends a finding that Allen, Agnes Rosa, and Rivers are entitled to immunityunder the SCTCA on any gross negligence claim Plaintiff may be attempting to pursue. The SCTCA “is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employee's official duty.” S.C. Code Ann. § 15-78-200. Allen, Agnes, and Rivers were at all times acting within the scope of their official duties as DSS employees in investigating the potential abuse of T.H. See S.C. Code Ann. § 15-78-30(i) (“ ‘Scope of official duty' . . . means (1) acting in and about the official business of a governmental entity and (2) performing official duties.”) Under the SCTCA, government employees are immune from liability for torts committed within the scope of their official duties as long as their conduct does not amount to “actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-70(a)-(b); Shelley v. S.C. Highway Patrol, 852 S.E.2d 220, 225 (S.C. Ct. App. 2020). To this end, there is no evidence to suggest that the individual Defendants intended to harm Plaintiff or acted with malice during their investigation. The individual Defendants thus remain immune from tort liability under the SCTCA and are entitled to summary judgment on any gross negligence (or other tort) claim Plaintiff is attempting to pursue. See, e.g., Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005); Beaufort v. Thompson, No. 2:20-cv-01197-DCN-MGB, 2021 WL 1085313, at *6 (D.S.C. Mar. 22, 2021) (unpublished).
The individual Defendants may also be entitled to prosecutorial immunity. Further, the SCTCA excepts from potential liability actions concerning the “institution or prosecution of any judicial or administrative proceeding[.]” S.C. Code Ann. § 15-78-60(23).
As to DSS, there is simply no evidence that it acted with anything “less than slight care” in bringing or pursuing the action against Plaintiff. Nothing presented by Plaintiff suggests otherwise. Plaintiff was unhappy with DSS's involvement with his minor son and his various placements. However, he has shown no evidence to suggest DSS exercised “less than slight care.” To the contrary, the initial action was supported by detailed facts to support the petition for removal. The family court judge found probable cause. Order, ECF No. 68 at 18-22 (sealed). As detailed in the facts set out above, DSS followed procedures, involved Plaintiff in meetings and hearings, and immediately investigated an allegation of abuse in a foster-care situation, finding it to be unfounded. Summary judgment is appropriate to the extent Plaintiff attempts to bring statelaw-based claims against DSS (and the Individual Defendants).
IV. Conclusion and Recommendation For the reasons set forth above, the undersigned recommends Defendants' Motion for Summary Judgment, ECF No. 69, be granted and this matter be ended.
IT IS SO RECOMMENDED.