Webb Report and Rec

3:19-cv-02031-CMC Date Filed 12/16/20 Entry Number 48 Page 1 of 54
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
Sheila Webb, ) C/A No.: 3:19-2031-JMC-SVH

)
Plaintiff, )
)
vs. )
) REPORT AND
Lean Lott, in his capacity as ) RECOMMENDATION
Sheriff of the Richland County )
Sheriff’s Department, and )
Cameron Duecker, )
)
Defendants. )
Sheila Webb (“Plaintiff”) originally filed this matter in the Court of
Common Pleas for Richland County, South Carolina, asserting claims against
Leon Lott (“Lott”), in his capacity as Sheriff of the Richland County Sheriff’s
Department (“RCSD”), and Cameron Duecker (“Duecker”), pursuant to the
South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-70 (“SCTCA”) and 42
U.S.C. § 1983. Plaintiff’s complaint concerns Duecker’s arrest of her on
February 1, 2019, and her subsequent confinement. More specifically, Plaintiff
asserts Fourth and Fourteenth Amendment claims for unreasonable seizure
and excessive force and state-law claims sounding in negligence and for false
imprisonment, intentional infliction of emotional distress, defamation, assault,
battery, and malicious prosecution. On July 19, 2019, Lott removed the action
to this court.
This matter is before the court on the motions for summary judgment
filed by Duecker [ECF No. 34] and Lott [ECF No. 35]. The motions having been
fully briefed, including a sur-reply filed by Plaintiff, [ECF Nos. 37, 38, 41, 44,
47], they are ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(f) (D.S.C.). Because the summary judgment motions are
dispositive, this report and recommendation is entered for review by the
district judge. For the following reasons, the undersigned recommends denying
Duecker’s motion and granting in part and denying in part Lott’s motion.
I. Factual Background
The parties agree that on the afternoon of February 1, 2019, Duecker
was dispatched to 50 Periwinkle Court in Irmo, South Carolina, to respond to
a complaint made to 911 by Plaintiff, a 58-year-old female, that her brother,
William Gossette (“Gossette”), had unlawfully used their incapacitated
mother’s vehicle. [ECF No. 34-1 at 25:20–26:12, ECF No. 38-3 at 11:17–24,
37:9–2]. At the time, Plaintiff, Gossette, and Gossette’s wife, Rachel Jones
(“Jones”) all lived at the residence, and the mother was in the hospital. [ECF
No. 38-3 at 10:10–14]. Duecker responded to the complaint in the patrol vehicle
that had been issued to him by the RCSD, while wearing his Richland County
Sheriff’s uniform and the full kit of gear that had been issued to him for patrol
2
purposes. [ECF No. 34-1 at 27:4–7, 27:18–23]. That kit of gear included a
sidearm, taser, pepper-OC spray, baton, and two sets of handcuffs. Id. at 28:2–
5.
Based on the body camera evidence, Duecker, through the front door of
the residence, spoke first with Jones, informing her that he had been
dispatched about “a stolen car” or “something about a car being used without
mom’s permission,” to which Jones called inside the house stating “Billy, Sheila
done called the police and said you stole the car.” [ECF No. 34-2 at 19:28:00–
19:28:40]. 1 Both Plaintiff and Gossette approached the front door, while
Duecker remained outside on the porch, and Plaintiff repeatedly denied having
called 911. See id. 2 Plaintiff then stated to Duecker that “my mother is in ICU,
[Gossette] don’t have authority . . .,” and Plaintiff and Gossette entered into a
short verbal dispute, with Duecker interjecting. Id. at 19:28:40–19:29:25.
Duecker then yelled “here’s the deal,” and Plaintiff became upset, telling
Duecker to back up, that she is a soldier, identifying herself as “Colonel Sheila
Webb,” and stating the car “was not registered, . . . there’s no insurance on the
1 Evidence submitted to the court indicates Plaintiff was inebriated at the time
in “the opinion of all those involved or were around . . . .” [See ECF No. 34-3 at
70:17–19]. Plaintiff states she drank a couple glasses of wine that day. [See
ECF No. 38-3 at 14:22–24].
2 Plaintiff has since admitted that she did call 911. [See, e.g., ECF No. 38-3 at
11:17–24].
3
car.” Id. at 19:29:25–19:29:50. 3 Duecker responded by taking out his handcuffs
and informing Plaintiff that the car was legally parked and if there was an
issue with permission to use the car, that was between Gossette and the owner
of the car. See id. Duecker then told Plaintiff that if she called 911 again,
Duecker would take her to jail for unlawful use of 911. Id. at 19:29:50–54.
Plaintiff then became increasingly antagonistic, retreating into the
residence, but then returning to the front door, informing Duecker that he
would not be arresting her, that she was going to call Sheriff Leon Lott,
culminating in telling Duecker that he was not “going to do shit.” Id. at
19:29:54–19:30:58. During this time, Gossette also informed Duecker that
Plaintiff had summoned law enforcement to the residence on several occasions
and that this had been ongoing for some time. See id. Duecker inquired about
the possible initiation of eviction protocols. Id. Plaintiff reappeared, continued
to be upset, and then once again retreated into the house. Id.
Duecker then entered the residence stating, “you’re going to jail for filing
a false police report.” Id. at 19:30:58–19:31:05. 4 Duecker followed Plaintiff into
3 Plaintiff confirmed in her deposition that at the time of the incident in

question she was retired from the military, although she was not a colonel. [See
ECF No. 38-3 at 31:13–24].
4 Duecker states that he entered the residence to place Plaintiff into
investigative detention for the unlawful use of 911 in order to calm her down.
[ECF No. 38-1 at 42:19–25, 54:13–18].
4
her bedroom, while Plaintiff denied she filed a false police report and slowly
tried to move away from Duecker. Id. at 19:31:05–19:31:13. Duecker repeatedly
told Plaintiff to come here, not to fight him, and to stop resisting, as he caught
Plaintiff’s arm and forced it behind her, attempting to put Plaintiff in
handcuffs; however, Plaintiff twisted away and climbed into her bed, putting
the covers over her. Id. at 19:31:13–19:31:35. Plaintiff and Duecker then
wrestled on her bed, with Duecker standing, as Plaintiff attempted to keep
Duecker from rolling her over or putting handcuffs on her. Id. at 19:31:35–
19:33:05. 5 During this time, Plaintiff asked Duecker to leave her alone, stating
she was sick, while Duecker repeatedly informed Plaintiff to stop resisting and
not scratch him, finally informing Plaintiff that she was under arrest for filing
a false police report and assaulting a police officer. See id. Also during this
time, Duecker used his radio to summon other officers for assistance and was
able to place one handcuff, but not two, on Plaintiff. See id.
Duecker then pulled out his taser, and, over the next three minutes,
deployed his taser multiple times, in both “drive stun” and “probe” mode, 6 the
5 Duecker stated he “tried to use muscling techniques to gain compliance,

which failed. I looked for an opportunity to use soft and hard empty-hand
control, which didn’t seem available and there was not room for a takedown
technique.” [ECF No. 38-1 at 53:14–19].
6 As stated by the Fourth Circuit, “[g]enerally, a taser has two modes: ‘probe’
or ‘dart’ mode and ‘drive stun’ mode. In probe mode, two probes are fired from
a distance, attached to thin electrical wires, to lodge in the skin of the subject.
5
latter mode to Plaintiff’s chest, while telling Plaintiff to stop resisting and
while Plaintiff yelled for her brother. Id. at 19:33:05–19:36:10. Duecker then
placed Plaintiff in handcuffs with the assistance one of the other Richland
County Deputies who had arrived on the scene following Duecker’s use of his
taser, including Corporal Fairbanks (“Fairbanks”), Duecker’s supervisor, who
states upon arrival “that is a seventy year old woman, you tased her, what the
fuck, what happened.” [ECF No. 34-2 at 19:36:10–19:38:08, see also, e.g., ECF
No. 38-5 at 33:13–16 (“We made it into the house, went to the back room where
we heard the struggle and we saw Deputy Duecker standing over Ms. Webb
and we assisted in handcuffing Ms. Webb.”)].
According to a report written by Fairbanks:
[Duecker] then relayed the facts of the fight. After we all calmed
down we went outside and Deputy Duecker told me he was going
to charge her with filing a false police report and assaulting a
police officer while resisting arrest. I immediately told him that
was not the correct charge due to the civil nature of the call. After
talking a few minutes, it was decided by both of us that due to her
[demeanor] and level of intoxication, breach of peace would be the
more appropriate charge.
The taser delivers a five-second cycle of electricity designed to override the

central nervous system, disabling the subject.” Yates v. Terry, 817 F.3d 877,
881 n.1 (4th Cir. 2016) (citations omitted). Duecker testified that he deployed
the taser as follows: “Five drive stuns and I only recall two times with the
probes. Of the five drive stuns, I believe two actually connected.” [ECF No. 38-
1 at 54:7–12; see also ECF No. 7 at 2 (“Duecker’s Taser was deployed a total of
ten times on Plaintiff”)].
6
[ECF No. 38-1 at 78, see also id. at 43:10–44:1 (Duecker testifying that “I knew
that there was a charge available for unlawful use of 911, but with consulting
my corporal and my lieutenant on the scene and the demeanor of Corporal
Fairbanks, we—it was decided to make the charge for breach of peace and
assault on a police officer while resisting arrest.”)]. Plaintiff was treated by
emergency medical services and transported to Alvin S. Glenn Detention
Center. Id. at 42:13–18. Plaintiff’s charges were favorably dismissed on or
about March 6, 2019. [ECF No. 37-4].
On February 21 or 22, 2019, Duecker was fired from his position with
RCSD. [ECF No. 38-1 at 42:6–12]. Following a criminal investigation,
Lieutenant Isenhoward (“Isenhoward”) for RCSD charged Duecker with
assault and battery, third degree, as a result of Duecker’s arrest of Plaintiff.
[ECF No. 38-4]. Magistrate Judge Surles issued an arrest warrant for Duecker
on February 22, 2020, and the case against Duecker is being prosecuted by
Solicitor Byron Gibson. [ECF No. 37-3, ECF No. 35-8 at 95:24–96:18]. 7
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that
7At the time of Duecker’s deposition in the instant case, he testified the charge
against him for assault and battery, third degree, was still pending. [ECF No.
38-1 at 59:19–60:1].
7
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.
8
B. Analysis
1. Claims for Unreasonable Seizure and Excessive Force
Duecker argues (1) he is entitled to qualified immunity, (2) Plaintiff’s
claim for unreasonable seizure fails in that he had probable cause to detain
and arrest her, and (3) Plaintiff’s claim for excessive force fails because the
amount of force was objectively reasonable in light of the totality of the
circumstances presented. [See ECF No. 34]. Plaintiff disputes each of these
arguments, arguing additionally that Duecker’s motion as to these claims fail
in that he entered her home without a warrant and exercised force and caused
her arrest in the absence of any evidence of exigent circumstances. [See ECF
No. 37 at 4].
a. Warrantless Entry and Unreasonable Seizure
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const., amend. IV. 8 “It is, of course, well understood that
8 Plaintiff states in her complaint, concerning her unreasonable seizure and

excessive force claims, that both her Fourth and Fourteenth Amendment
rights have been violated. [See ECF No. 12 at 5]. These claims, however, are
properly analyzed under Fourth Amendment jurisprudence. See, e.g., Bailey v.
Kennedy, 349 F.3d 731 (4th Cir. 2003) (analyzing unreasonable seizure and
excessive force claims under the Fourth Amendment where the force used was
employed after the suspect was lying face down on the floor of his residence, in
handcuffs and leg restrains). Additionally, no party has addressed Plaintiff’s
claims in conjunction with the Fourteenth Amendment.
9
‘the Fourth Amendment generally prohibits the warrantless entry of a person’s
home, whether to make an arrest or to search for specific objects.’” United
States v. Azua-Rinconada, 914 F.3d 319, 324 (4th Cir. 2019) (citing Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990)). “The prohibition does not apply, however,
to situations in which voluntary consent has been obtained, either from the
individual whose property is searched or from a third party who possesses
common authority over the premises.” Id. (citing Illinois, 497 U.S. at 181)); see
also Bashir v. Rockdale Cty., 445 F.3d 1323, 1328 (11th Cir. 2006) (“[A]
warrantless arrest in a home violates the Fourth Amendment unless the
arresting officer had probable cause to make the arrest and either consent to
enter or exigent circumstances demanding that the officer enter the home
without a warrant.”) (emphasis in original).
Additionally, under the qualified immunity defense, “government
officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity ensures that “[o]fficials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d
295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity
10
is a question of law for the court and, when there are no relevant disputed
material facts, a court should rule on the qualified immunity issue at the
summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir.
2005) (“Ordinarily, the question of qualified immunity should be decided at the
summary judgment stage.”).
To resolve a qualified immunity defense, the court must (1) determine
whether the facts alleged, taken in the light most favorable to the plaintiff,
show that the defendant’s conduct violated a constitutional right, and (2)
determine whether the right was clearly established at the time of the alleged
misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may
address the two prongs of the qualified immunity analysis in whichever order
is appropriate in light of the circumstances of the particular case at hand. Id.
Duecker “acknowledges that in order to lawfully enter a person’s home
to make an arrest, you must have: (1) a warrant; (2) consent; or (3) an exigent
circumstance,” but argues, “[h]ere, quite simply. . . he had consent to enter the
residence . . . .” [See ECF No. 41 at 1]. 9 The only evidence Duecker offers in
support is an affidavit completed by Gossette and notarized on October 29,
2020, that states, without further detail, as follows: “The Richland County
9 Duecker does not argue that he either possessed a warrant or that exigent
circumstances justified his entry into the residence. [See ECF No. 34, ECF No.
41].
11
Sheriff’s Deputy who initially responded to my residence on February 1, 2019,
Deputy Cameron Duecker, had consent to cross the threshold of and enter my
residence as part of his investigation.” [ECF No. 41-1 ¶ 5]. 10
Duecker’s attempt, via Gossette’s affidavit, to justify his warrantless
entrance into Plaintiff’s home fails for multiple reasons. First, turning to the
body camera evidence, from the moment Duecker knocked on the residence
door to the moment Duecker entered the residence, Duecker did not verbally
request, or receive, permission to enter the residence and was instead informed
by Plaintiff that he was not “going to do shit” in response to Ducker’s statement
that he would arrest Plaintiff if she called 911 again. [See ECF No. 34-2 at
19:28:00–19:31:03]. 11 As held by the Supreme Court, “[w]hen opposing parties
tell two different stories, one of which is blatantly contradicted by the [video]
record, so that no reasonable jury could believe it, a court should not adopt that
10 Duecker also cites to Isenhoward’s deposition wherein he states that he does

not believe Duecker’s entry into Plaintiff’s residence was unlawful and,
instead, believed it to be lawful in that “they were discussing . . . the situation”
and Duecker “was called there.” [ECF No. 41-2 at 33:22–34:4]. However,
Isenhoward further testified he did not know if anyone gave consent to Duecker
to enter the residence. See id. at 34:7–10. Therefore, Isenhoward’s testimony
does not support Duecker’s position that although he did not have a warrant
or exigent circumstances to enter the residence, he had Gossette’s consent.
11 Duecker does not argue, nor does the body camera evidence indicate, consent
could “be implied from [Gossette’s] words, gestures, or conduct.” See United
States v. Moreland, 437 F.3d 424, 429 (4th Cir. 2006); see also id. (“This burden
[on the government to prove implied consent] is heavier where consent is not
explicit, since consent is not lightly to be inferred”) (citations omitted).
12
version of the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007). The instant case stands in contrast
to, for example, Azua-Rinconada, where “[t]he [body camera] footage
convincingly show[ed] that after Powell opened the door, the officers conversed
with her in a calm, casual manner and that Powell freely and with a degree of
graciousness invited the officers into the trailer.” 914 F.3d at 325.12
Second, Duecker himself testified he did not have consent to enter the
residence in his deposition as follows:
Q: All right. One other question, Cameron, Now that you’re

inside the home, prior to his did Mrs. Webb or any other
person in the home give you consent to come into the home?
A: Not that I recall.
Q: Okay. Would this body camera have caught that, should it

have caught it?
A: I would imagine it would have.
[ECF No. 38-1 at 32:19–33:1; see also ECF No. 35-2 at 3 (Duecker stating as
12 Plaintiff additionally cites Georgia v. Randolph, 547 U.S. 103, 108 (2006)
wherein the Supreme Court held that one occupant may not give law
enforcement effective consent to search shared premises against a co-tenant
who is present and refuses permission. As stated above, the body camera
evidence does not show that Duecker requested, or received, permission to
enter the residence. Had he received permission from Gossette, however,
Georgia indicates such permission would be invalid given Plaintiff’s presence
at the door and verbal objections. See id. at 121 (“if a potential defendant with
self-interest in objecting is in fact at the door and objects, the co-tenant’s
permission does not suffice for a reasonable search . . . .”).
13
follows: “As she retreated back into the house, Mr. Gossett reiterated that this
was an ongoing issue and I decided to detain her for filing a false complaint. I
withdrew my handcuffs as she retreated further into the house. I caught up to
her in her bedroom . . . .”)]. Duecker makes no reference to seeking or receiving
permission to enter the residence in either his sworn statement concerning the
day in question, the RCSD’s incident report on which he was the reporting
officer, or otherwise in his deposition. [See ECF Nos. 35-2, 37-1, 38-1].
Third, the Fourth Circuit has “referred to bogus affidavits submitted in
opposition to summary judgment for the purpose of creating disputes of
material fact as ‘sham’ affidavits.” Stevenson v. City of Seat Pleasant, Md., 743
F.3d 411, 422 (4th Cir. 2014); see also Barwick v. Celotex Corp., 736 F.2d 946,
960 (4th Cir.1984) (“If a party who has been examined at length on deposition
could raise an issue of fact simply by submitting an affidavit contradicting his
own prior testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of fact.” (citations
omitted)). Although the issue of sham affidavits usually arises where a plaintiff
submits an affidavit contradicting previous deposition testimony to defeat
summary judgment made by a defendant, and here a defendant has submitted
an affidavit by another person contradicting his own deposition testimony, the
principle remains that “[a] genuine issue of material fact is something on which
14
the parties disagree, not on which one party is internally contradictory.”
Wilson v. Gaston Cty., NC, 685 F. App’x 193, 199 (4th Cir. 2017).
Duecker makes no attempt to explain the inconsistencies found among
Gossette’s affidavit, Duecker’s testimony, and the body camera evidence, and
the facts taken in light most favorable to Plaintiff, presented through the body
camera evidence and Duecker’s own testimony, are that Duecker did not seek
anyone’s consent nor receive anyone’s consent to enter Plaintiff’s home. For the
reasons stated, Gossette’s affidavit, implying, but not stating, he gave consent
to Duecker at some undisclosed time through some undisclosed method, does
not change this conclusion. 13
Because it is undisputed Plaintiff was arrested in her home and the
evidence taken in light most favorable to Plaintiff shows Duecker entered
Plaintiff’s home without a warrant, exigent circumstances, or permission,
Duecker violated Plaintiff’s Fourth Amendment rights by entering her home
13 Although not relied upon by the undersigned, Plaintiff also has put forth
affidavit evidence from Gossette’s sister, Covey Dinkins, and a private
investigator, David Anatra, calling into question the legitimacy of Gossette’s
affidavit. [See ECF No. 47-1 ¶ 4 (“William stated . . . he was swamped by
officers that day . . . . He also said that after he signed the statement, he was
told that Sheila’s case was over”); ECF 47-2 ¶¶ 6, 8, 10 (“[Gossette] explained
they did not tell him what he was signing and he did not read it, but he just
signed it . . . . Mr. Gossette said after watching the video that maybe he didn’t
tell Duecker anything and just motioned to Duecker when Duecker’s back was
turned. He then recanted that statement and said he must have given
permission at the door . . . . ‘I’m not going to help my sister.’”)].
15
and arresting her. See, e.g., Clark v. Bridges, 211 F. Supp. 3d 731, 739 (D.S.C.
2016) (“A warrantless arrest inside a suspect’s home, however, requires a
different analysis because law enforcement officers are prohibited from
entering a suspect’s home without consent or a warrant. Such an arrest is only
permissible if both probable cause and exigent circumstances are present.”)
(citing Payton v. New York, 445 U.S. 573, 586, 590 (1980)).
Additionally, the rights at issue were clearly established at the time of
the alleged misconduct. 14 See, e.g., Kuklane v. Whittington, No. 93-1843, 1994
WL 564750, at *2 (4th Cir. October 17, 1994) (“the right at issue here was
clearly established and a reasonable officer would have known that breaking
into a home to arrest a person for violating the noise ordinance was
unreasonable, particularly when a warrant could be obtained and the exigent
circumstances were minor or non-existent”); Bashir, 445 F.3d at 1331 (“[I]t was
clearly established the deputies’ conduct violated the Fourth Amendment. A
reasonable law enforcement officer faced with these circumstances would have
14 Although Duecker invokes the defense of qualified immunity generally, he

does not discuss this defense specifically with regard to his warrantless entry
into Plaintiff’s home. [See ECF No. 34, ECF No. 41]. Thus, Duecker has failed
to carry his burden of showing this defense is applicable. See, e.g., Betton v.
Belue, 942 F.3d 184, 190 (4th Cir. 2019) (“The burden of establishing the
affirmative defense of qualified immunity rests on the party seeking to invoke
it.”). Notwithstanding, as stated above, the rights at issue were clearly
established on the date Plaintiff was arrested.
16
known he could not enter the home and arrest Bashir without a warrant,
exigent circumstances, or consent.”) (citing Payton, 445 U.S. at 586).
Duecker argues, and Plaintiff disputes, that Duecker had probable cause
to arrest Plaintiff for violating the following laws recognized by the State of
South Carolina: (1) common law breach of the peace, (2) S.C. Code Ann. § 16-
17-725, which punishes knowingly making a false complaint or statement to
“any law enforcement officer concerning the alleged commission of a crime by
another,” and (3) S.C. Code Ann. § 23-47-80, which criminalizes acts that
include “contact[ing] the emergency 911 number and intentionally mak[ing] a
false report.” [See ECF No. 34 at 7–8, ECF No. 37 at 12–16]. However, as
stated, the existence of probable cause does not by itself validate a warrantless
nonconsensual home arrest. See, e.g., Payton, 445 U.S. at 588–89; see also Kirk
v. Louisiana, 536 U.S. 635, 638 (2002) (holding absent exigent circumstances,
police officers’ warrantless entry into defendant’s apartment and ensuing
arrest and search violated the Fourth Amendment, even though the officers
had probable cause); Minnesota v. Olson, 495 U.S. 91, 95 (1990) (“It was held
in Payton . . . that a suspect should not be arrested in his house without an
arrest warrant, even though there is probable cause to arrest him.”).
Accordingly, the undersigned recommends the district judge deny
Duecker’s motion for summary judgment as to Plaintiff’s unreasonable seizure
17
claim. 15
b. Excessive Force
Claims that law enforcement officials have used excessive force in the
course of an arrest are properly analyzed under the Fourth Amendment’s
“objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388
(1989). Determining whether the force used to carry out a particular arrest is
“unreasonable” under the Fourth Amendment requires “balanc[ing] the nature
and quality of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged to justify the
intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985). The outcome of this
balancing test necessarily depends on the facts and circumstances of the
particular case. Id. at 8–9 (holding question is “whether the totality of the
circumstances justifie[s] a particular sort of search or seizure”). Factors to
consider in this analysis include the severity of the crime at issue, whether the
15Plaintiff additionally argues that because Duecker “entered Plaintiff’s home

without a warrant, exercised force and caused her arrest in the absence of any
evidence of exigent circumstances,” Duecker’s entire motion for summary
judgment should be denied, including as to Plaintiff’s excessive force claim.
[See ECF No. 37 at 4]. However, as held by the Fourth Circuit, “[w]e first
dispense with Hupp’s argument that because she was unlawfully arrested, the
use of any force was necessarily unconstitutional . . . . we consider the crime
that is alleged to have been committed in connection with our overall analysis
of all of the circumstances surrounding the use of force.” Hupp v. Cook, 931
F.3d 307, 322 (4th Cir. 2019) (emphasis in original).
18
suspect poses an immediate threat to the safety of the officers or others, and
whether she is actively resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396. Further, the analysis “must embody allowances for
the fact that police officers are often forced to make split-second judgments—
in circumstances that are tense, uncertain and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Unus v. Kane, 565
F.3d 103, 117 (4th Cir. 2009) (citation omitted). Next, “[t]he court must also
consider the extent of the injuries caused to the plaintiff.” Lassiter v. Reece,
C/A No. 3:07-885-HFF-JRM, 2008 WL 2852164, at *4 (D.S.C. July 22, 2008)
(citing Jones v. Buchanan, 325 F.3d 520, 530–31 (4th Cir. 2003)).
Applicable here, the Fourth Circuit has addressed the use of a taser
against a noncompliant but unarmed suspect as follows:
While the questions whether an arrestee has been restrained and

is complying with police directives are, of course, relevant to any
inquiry into the extent to which the arrestee “pose[s] a continuing
threat to the officers’ safety,” they are not dispositive. A rule
limiting taser use to situations involving a proportional safety
threat does not countenance use in situations where an
unrestrained arrestee, though resistant, presents no serious safety
threat.
Indeed, application of physical restraints cannot be the only way

to ensure that an arrestee does not pose a sufficient safety threat
to justify a tasing. If it were, use of a taser would be justified at the
outset of every lawful seizure, before an arrestee has been
restrained. This, of course, is not the law. Courts recognize that
different seizures present different risks of danger . . . . Painful,
injurious, serious inflictions of force, like the use of a taser, do not
19
become reasonable simply because officers have authorization to

arrest a subject who is unrestrained.
Even noncompliance with police directives and nonviolent physical

resistance do not necessarily create “a continuing threat to the
officers’ safety.” . . . . other circuits have held that taser use can
constitute excessive force when used in response to non-violent
resistance. The subject of a seizure “refus[ing] to release his arms
for handcuffing,” for example, “is no[t] evidence suggesting that
[he] violently resisted the officers’ attempts to handcuff him.” Such
a refusal, therefore, does not justify deploying a taser when the
subject “[i]s unarmed and there [i]s little risk [he] could access a
weapon . . . .
In all of these cases, we declined to equate conduct that a police

officer characterized as resistance with an objective threat to
safety entitling the officer to escalate force. Our precedent, then,
leads to the conclusion that a police officer may only use serious
injurious force, like a taser, when an objectively reasonable officer
would conclude that the circumstances present a risk of immediate
danger that could be mitigated by the use of force. At bottom,
“physical resistance” is not synonymous with “risk of immediate
danger.”
Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 903–
05 (4th Cir. 2016) (citations omitted, emphasis in original); see also Livingston
v. Kehagias, 803 F. App’x 673, 684 (4th Cir. 2020) (“Livingston’s only resistance
was of the passive variety, in the form of refusing to give up his hands for
handcuffs.”); Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009)
(refusal to terminate a telephone call after police ordered an arrestee to do so
does not justify tasing even though the police officer was concerned that the
arrestee could use glass tumblers near her feet as weapons or could kick the
20
officer).
Turning to the Graham factors listed above, the parties do not dispute
the first factor, the severity of the crime at issue, weighs in Plaintiff’s favor,
[see ECF No. 34 at 10–11], “which means that there was no reason for them to
believe that [plaintiff], a suspected misdemeanant, would become dangerous.”
Livingston, 803 F. App’x at 683. 16 Turning to the second and third factors,
Duecker argues (1) Plaintiff posed “a threat to officer safety” in that “during
the time that only one of the handcuffs was secured upon the Plaintiff . . . it
could be used as a weapon against him” and (2), citing disputed evidence, she
“actively scratch[ed] and claw[ed] [his] hands and arms as she resisted him
throughout his encounter.” [ECF No. 34 at 10–11]. 17
Viewing evidence in light most favorable to Plaintiff and given the
Fourth Circuit’s guidance in Armstrong above, Duecker’s arguments fail, and
both the second and third Graham factors weigh in Plaintiff’s favor. It is
16 Although Duecker cites Plaintiff’s testimony where “she acknowledged that

it would be fair for a law enforcement officer to believe that any person
identifying themselves as a military person would be trained in hand-to-hand
combat,” [see ECF No. 34 at 10 (citing ECF No. 34-5 at 33:6–16)], Duecker does
not argue, and the record does not support, a conclusion that a reasonable
officer would suspect Plaintiff would become dangerous solely because she
identified herself as military.
17 The parties dispute whether Plaintiff was trying to scratch Duecker’s hands
or otherwise harm him or was trying to peel away his hands and the handcuffs.
[ECF No. 34-1 at 53:10–11, ECF No. 37 at 3]. The body camera evidence is
inconclusive as to Plaintiff’s motives.
21
undisputed Plaintiff did not want to be handcuffed or arrested. To prevent that
from occurring, and taking evidence in light most favorable to her, she slowly
walked away from Duecker, withdrawing further into her home, she got into
her bed and pulled up the covers, she repeatedly pulled her hands away from
Duecker and tried to peel his hands off of hers, she laid limp to prevent him
from rolling her over, and she repeatedly requested he leave her alone. In
response to this passive, albeit repeated resistance, Duecker employed his
taser multiple times against Plaintiff, who was unarmed and did not attack or
attempt to attack Duecker. See, e.g., Estate of Armstrong, 810 F.3d at 901–02
(“here, the factual circumstances demonstrate little risk—Armstrong was
stationary, non-violent, and surrounded by people willing to help return him
to the Hospital. That Armstrong was not allowing his arms to be pulled from
the post and was refusing to comply with shouted orders to let go, while cause
for some concern, do not import much danger or urgency into a situation that
was, in effect, a static impasse.”). 18
18Duecker additionally argues that he “assessed the circumstances in which

he was confronted and determined that the taser was the only tool in his kit
that would assist him in bringing the Plaintiff under control” and that he did
not use the taser to cause Plaintiff harm or “for any other purpose than to assist
in securing the detention of the Plaintiff.” [ECF No. 34 at 10–11]. Such an
argument is inconsistent with the law of this Circuit. See Estate of Armstrong,
810 F.3d at 904 (“Force [like a taser] that imposes serious consequences
requires significant circumscription. Our precedent, consequently, makes clear
that tasers are proportional force only when deployed in response to a situation
22
Additionally, the right at issue was clearly established at the relevant
time. See, e.g., id. at 903–05; Hupp, 931 F.3d at 321–23 (reversing grant to
summary judgment on qualified immunity grounds, holding “[o]n these
disputed versions of the facts, and in light of the other Graham factors that are
unfavorable to Trooper Cook, we cannot say that a reasonable officer would
consider Trooper Cook’s use of force reasonable under the circumstances.”);
Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994) (concluding that disputed
versions of plaintiff’s resistance combined with other “unfavorable” Graham
factors precluded qualified immunity on excessive force claim); Barfield v.
Kershaw Cty. Sheriff’s Office, 638 F. App’x 196, 204 (4th Cir. 2016) (“As in
Rowland, Threatt ‘took a situation where there obviously was no need for the
use of any significant force and yet took an unreasonably aggressive tack.’ This
objectively unreasonable application of force, combined with the weakness of
the Graham factors, puts the ‘constitutional question beyond debate.’”) (citing
Smith v. Ray, 781 F.3d 95, 100, 104 (4th Cir. 2015)).
Accordingly, the undersigned recommends the district judge deny
Duecker’s motion for summary judgment as to Plaintiff’s excessive force claim.
in which a reasonable officer would perceive some immediate danger that could
be mitigated by using the taser.”) (emphasis in original)).
23
2. SCTCA Claims
The SCTCA is “the exclusive remedy for any tort committed by an
employee of a governmental entity.” S.C. Code Ann. § 15-78-70(a). “The State,
an agency, a political subdivision, and a governmental entity 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, contained” within the SCTCA. S.C.
Code Ann. § 15-78-40. As relevant here, the SCTCA additionally provides a
“governmental entity is not liable for the loss resulting from . . . employee
conduct outside the scope of his official duties or which constitutes actual
fraud, actual malice, intent to harm, or a crime involving moral turpitude.”
S.C. Code Ann. § 15-78-60(17); see also id. at § 15-78-70(b). “[U]nder the
SCTCA, for a given tort, either the governmental entity or the employee is
liable but not both.” Newkirk v. Enzor, 240 F. Supp. 3d 426, 436 (D.S.C. 2017).
The governmental entity claiming an exception to the waiver of immunity
under the SCTCA has the burden of establishing any limitation on liability.
Faile v. S.C. Dep’t of Juvenile Justice, 566 S.E.2d 536, 540 (S.C. 2002).
Before turning to the claims at issue, as a preliminary matter, the parties
argue whether or not Duecker’s actions “were within the scope of his official
duties” or conducted with “actual malice” or “intent to harm,” with Plaintiff
24
and Duecker taking the position that Duecker acted within the scope of his
duties and without actual malice or intent to harm, and with Lott arguing
otherwise, thus rendering RCSD entitled to absolute sovereign immunity from
Plaintiff’s tort claims. [See ECF No. 34 at 2, ECF No. 37 at 1–2, ECF No. 38 at
7–14, ECF No. 35-1 at 4–11, ECF No. 44 at 1–7].
First, as to whether Duecker was acting within the scope of his official
duties, it is undisputed the events in question transpired when Duecker was
dispatched to Plaintiff’s residence in the patrol vehicle that had been issued to
him by the RCSD, while wearing his official uniform and the full kit of gear
that had been issued to him for patrol purposes, including a sidearm, taser,
pepper-OC spray, baton, and two sets of handcuffs, and that, thereafter,
Duecker entered Plaintiff’s home, called for backup, and arrested her. 19
Notwithstanding, Lott argues Duecker “explicitly commit[ed] an
unlawful act,” referencing the force employed by Duecker, and therefore he
“not only exceed[ed] his authority but clearly act[ed] in contravention with the
business of the Sheriff.” [ECF No. 35-1 at 6–8]. In support, Lott cites prevailing
law enforcement standards as articulated in Isenhoward’s deposition, as well
as the ensuing criminal investigation of Duecker, arrest warrant issued
19 Plaintiff argues that following her arrest, Duecker additionally “later

obtained a warrant for Plaintiff’s arrest on [the] grounds” of breach of peace
and assault on a police officer while resisting arrest. [ECF No. 38 at 9].
25
against Duecker, and prosecution of Duecker. See id. Lott argues that because
the relevant facts, as captured by the body camera evidence, are not in dispute,
he is entitled to summary judgment because “Duecker’s actions at the relevant
times were outside the scope of his official duties as a RCSD deputy.” [ECF No.
44 at 5].
For a government employee to be acting within the scope of his official
duty or employment, the employee must be (1) “acting in and about the official
business of the government entity,” and (2) “performing official duties.” Wade
v. Berkeley County, 498 S.E.2d 684, 688 (S.C. Ct. App. 1998) (citing S.C. Code
Ann. § 15–78–30(i))). “An act is within the scope of a servant’s employment
where [it is] reasonably necessary to accomplish the purpose of his employment
and in furtherance of the master’s business.” Armstrong v. Food Lion, Inc., 639
S.E.2d 50, 52 (S.C. 2006). “On the other hand, if the servant acts for some
independent purpose of his own, wholly disconnected with the furtherance of
his master’s business, his conduct falls outside the scope of his employment.”
Crittenden v. Thompson–Walker Co., Inc., 341 S.E.2d 385, 387 (S.C. Ct. App.
1986).
As stated above, Lott has the burden of establishing any limitation on
liability under the SCTCA, and, at this time, Lott has failed to carry his
burden. Notwithstanding Lott’s invocation of the body camera evidence and
26
Plaintiff’s characterization of Duecker’s actions as, for example, “unlawful and
shocking” and “extreme and outrageous,” [see ECF No. 44 at 4–7], the evidence
creates more than one reasonable inference as to whether Duecker acted
outside the scope of his employment. The jury could infer from the evidence
presented that Duecker’s actions were professionally motivated and that he
took no actions disconnected from his employment, particularly here where
Lott has submitted no evidence that Duecker acted “for some independent
purpose of his own.” See Crittenden, 341 S.E.2d at 387–88 (holding
unauthorized assault fell within scope of employment where intended to aid in
collection of debt owed to employer); see also Jones v. Elbert, 34 S.E.2d 796,
799 (S.C. 1945) (finding employer responsible for employee’s assault on
supplier arising out of dispute over product); see also, e.g., Peirce v. Bryant,
C/A No. 4:14-2927-BHH-TER, 2016 WL 11410276, at *4 (D.S.C. Feb. 1, 2016)
(“The acts of Defendants about which Plaintiff complains, obtaining a warrant
for her arrest and arresting her pursuant to that warrant, fall within the
definition of ‘scope of official duty’ as defined in the SCTCA.”), report and
recommendation adopted, C/A No. 4:14-2927-BHH, 2016 WL 1061060 (D.S.C.
Mar. 17, 2016). 20
20Plaintiff argues that because Duecker contends he acted within the scope of
his duties and without malice or intent to harm, and Lott argues otherwise,
Duecker and Lott “are necessarily creating a genuine issue” precluding grant
27
Cases cited by Lott do not counsel a different conclusion. For example, in
Kase v. Ebert, 707 S.E.2d 456, 458 (S.C. Ct. App. 2011), the court held it
“undisputed” that “the altercation at issue here did not arise because Ebert
was protecting either a company vehicle or the cargo he was transporting.
Rather, Ebert had already exited the vehicle and was defending himself
against what he perceived to be a violent attack by Kase.” Here, however, no
such undisputed evidence has been presented that Duecker, in tasing Plaintiff,
acted for any other reason than in furtherance of Sheriff’s business. 21
of summary judgment to Lott. [See ECF No. 38 at 9 n.8]. As the record shows,
Duecker testified he was operating as a law enforcement officer at all relevant
times, he was making a lawful arrest, the use of his taser was necessary “to
affect the detention” of Plaintiff, and he was acting in a way to “avoid injury.”
[ECF No. 38-1 at 37:17–23, 55:4–19, 58:11–13, 64:1–12]. Duecker stated that
he did not act with malice or an intent to harm Plaintiff. Id. at 55:4–19, 64:1–
12. Fairbanks also testified Duecker was acting within the course and scope of
his duties when he arrested Plaintiff and deployed his taser. [ECF No. 38-5 at
59:18–61:9]. Finally, Isenhoward testified that although he thought the arrest
of Plaintiff was unlawful, the arrest might not be outside of the scope of
Duecker’s official duties, but the tasing that followed was. [ECF No. 38-6 at
78:10–17, 104:14–17; see also id. at 55:21–56:7].
21 Cases cited by Lott concerning sexual misconduct are of limited relevance to
the present inquiry where courts have found sexual misconduct to be

categorically outside the scope of one’s employment and where sexual assault
is not presently at issue. See, e.g., Frazier v. Badger, 603 S.E.2d 587, 591 (S.C.
2004) (“sexual harassment by a government employee is not within the
employee’s ‘scope of employment.’”); Doe v. Smith, No. 2014-UP-267, 2014 WL
2968925, at *1 (S.C. Ct. App. June 30, 2014); S.C. Med. Malpractice Liab. Ins.
Joint Underwriting Ass’n v. Ferry, 354 S.E.2d 378, 381 (S.C. 1987); Moore by
Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 11 (S.C. Ct. App. 1997); State
Farm Fire & Cas. Co. v. Barrett, 530 S.E.2d 132, 136 (S.C. Ct. App. 2000) (“we
hold that an intent to harm will be inferred as a matter of law when a person
28
In Newkirk, this court addressed claims of a warrantless arrest without
probable cause and excessive force against a state trooper conducting a traffic
stop while on duty. In rejecting the argument of the South Carolina
Department of Public Safety (“SCDPS”) that the trooper acted outside the
scope of his official duties, this court stated as follows:
It may appear impossible to dispute that Mr. Enzor, then a state

trooper, acted within the scope of his official duties when he
effected a traffic stop while on duty patrolling I–95 . . . .
Nonetheless, SCDPS denies that Mr. Enzor acted within the scope
of his official duties. SCDPS may present that position at trial, but
for summary judgment SCDPS must show that it is beyond dispute
that Mr. Enzor acted beyond the scope of his duties as a trooper
when (according to SCDPS) he stopped the Newkirks for speeding
while on duty patrolling I–95 for speeding infractions. SCDPS has
not met that burden, instead, SCDPS only points to deposition
testimony in which SCDPS asked Mrs. Newkirk whether she
believed acting on racist beliefs is part of Mr. Enzor’s “job as a
trooper,” to which she answered, “It’s not.” Mrs. Newkirk’s
personal beliefs about South Carolina highway patrolman’s duties
are not relevant to the definition of scope of official duty or
employment set forth in S.C. Code § 15–78–30(i).
Newkirk, 240 F. Supp. 3d at 436 (select citations omitted); see also Wade, 498
S.E. 2d at 688 (“Any doubt as to whether the servant was acting within the
scope of his authority when he injured a third person must be resolved against
the master, at least to the extent of requiring that the question be submitted
to the jury.”) (citing Adams v. South Carolina Power Co., 21 S.E.2d 17 (S.C.
sexually assaults, harasses, or otherwise engages in sexual misconduct

towards an adult”).
29
1942)).
Here, Lott has not shown it is beyond dispute that Duecker acted outside
the scope of his duties when he was dispatched to Plaintiff’s residence and
arrested her, notwithstanding the force employed while so doing, and therefore
also has not shown he is not the appropriate defendant for Plaintiff’s claims
brought pursuant to the SCTCA. 22 See Barfield, 638 F. App’x at 201 (“[W]hen
a Sheriff’s deputy uses ‘force greater than is reasonably necessary under the
circumstances’ the governmental agency may be liable for battery.”) (citing
Roberts v. City of Forest Acres, 902 F. Supp. 662, 671–72 & n. 2 (D.S.C.1995));
Simmons v. Charleston Cty. Sheriff’s Office, C/A No. 2:19-1754-BHH, 2019 WL
5387911, at *1 (D.S.C. Oct. 22, 2019) (“The governmental agency, in this case
CCSO, may be liable for the assault and battery.”); Meyer v. McGowan, C/A
No. 2:16-00777-RMG, 2018 WL 4462367, at *5 (D.S.C. Sept. 18, 2018) (same).23
22 The implication of Lott’s argument is that when a law enforcement officer

“commits an unlawful act,” he or she automatically acts outside the scope of
his or her employment. [See ECF No. 35-1 at 7]. However, Lott fails to provide
case law, nor is the court aware of any, supporting this sweeping position, and
the case law cited above holds otherwise. See also, e.g., Wingate v. Byrd, C/A
No. 4:13-03343-BHH-KDW, 2017 WL 10518177, at *12 (D.S.C. Jan. 20, 2017)
(“Assault by a sheriff’s deputy in the performance of his duties is among the
specific acts for which a sheriff is liable. Because this is the wrong [the
deputies] committed, the district court properly held the sheriff liable.”) (citing
Scott v. Vandiver, 476 F.2d 238, 243 (4th Cir. 1973)).
23 Lott’s citation to McCall v. Williams, 52 F. Supp. 2d 611, 615 (D.S.C. 1999)
is inapposite where, in that case, the court held the Eleventh Amendment
barred Plaintiff’s pendent state law claims for assault and battery against the
30
Likewise, Lott fails to submit undisputed evidence that Duecker acted
with actual malice or with intent to harm, and, instead, the record evidence
shows otherwise, as discussed below. Lott argues, however, actual malice and
an intent to harm can be inferred from Duecker’s actions as shown by the body
camera evidence, that Plaintiff has alleged Duecker acted with actual malice
and intent to harm, and that this court has numerous times held government
entities are immune from suits for intentional torts. [ECF No. 44 at 2–7].
First, although the body camera evidence shows the actions Duecker
took, it does not provide undisputed evidence as to whether Duecker took those
actions with actual malice or intent to harm. See, e.g., Eaves v. Broad River
Elec. Coop., Inc., 289 S.E.2d 414, 416 (S.C. 1982) (“Malice is defined as the
deliberate intentional doing of a wrongful act without just cause or excuse.”)
(citations omitted)). Here, a reasonable juror could conclude that Duecker did
not act with actual malice or intent to harm, particularly based on Duecker’s
testimony that he took actions “in an effort to calm [Plaintiff] down,” he
believed his conduct constituted a lawful arrest, he attempted techniques prior
to tasing Plaintiff that he understood to be the least harmful possible, and,
even though he deployed his taser, he believed that the primary purpose of the
taser is not to cause pain, but to assist in putting individuals into detention.
defendant in his official capacity as a deputy sheriff.

31
[ECF No. 38-1 at 36:22–37:3, 48:10–22, 54:13–18]. Duecker further stated he
chose to tase Plaintiff, not to cause harm but “to affect the detention.” Id. at
37:17–20. Duecker testified he did not have any intention of harming Plaintiff
and did not harbor any malice towards Plaintiff, but “in fact, actively sought
ways to avoid injury.” Id. at 55:4–10, 55:16–19, 64:1–5. 24
Second, to the extent Lott argues summary judgment should be granted
based on Plaintiff’s allegations as found in her complaint, [see ECF No. 35-1 at
9 (citing ECF No. 12 ¶ 42 (Plaintiff alleging, for example, Duecker
“intentionally or recklessly inflicted severe emotional distress or was certain
or substantially certain such distress would result from his conduct”))], the
undersigned rejects this argument. Although Plaintiff has alleged Duecker’s
conduct was “extreme and outrageous,” [ECF No. 12 ¶ 43], Plaintiff has not
alleged Duecker acted with actual malice or intent to harm. Additionally, on
summary judgment, “the non-moving party cannot solely rely on mere
allegations or denials of [his] pleadings.” Glynn v. EDO Corp., 710 F.3d 209,
213 (4th Cir. 2013) (citations omitted). Here, too, Lott cannot rely solely on
24 Plaintiff has additionally put forth evidence that Fairbanks described

Duecker “as truthful” and believes that Duecker was being truthful when he
claimed that he did not intent to harm or cause injury to Plaintiff and, in fact,
actively sought ways to avoid injury to Plaintiff, [ECF No. 38-5 at 67:2–68:16],
and Isenhoward believes Duecker’s claims, under oath, that he did not intent
to harm Plaintiff were sincere. [ECF No. 38-6 at 51:21–53:13].
32
Plaintiff’s allegations.
Third, “[a]lthough the SCTCA generally ‘is not intended to protect state
employees from liability for intentional torts,’ . . . it does not automatically
grant state entities categorical immunity from any intentional tort committed
by an employee acting within the scope of his official duties.” Newkirk, 240 F.
Supp. 3d at 437 (citing Anthony v. Ward, 336 Fed. Appx. 311, 317 (4th Cir.
2009)); see also id. at 436 (rejecting argument that S.C. Code Ann. § 15-78-
60(17) automatically bars the plaintiff’s “intentional tort” claims including
assault, battery, and false imprisonment in that “each tort [the plaintiff]
alleges could be committed without actual malice or intent to harm.”); see also
Smith v. Ozmint, 394 F. Supp. 2d 787, 792 (4th Cir. 2005) (“In this case,
Plaintiff’s negligence and common law libel claims fail to allege intent to harm
or actual malice. As such, for these claims, the sole remedy is under the Act
and Plaintiff may not assert these claims in federal court against any state
employee in his individual capacity.”).
Here, it is disputed whether Duecker acted within the scope of his duties,
with actual malice, or with intent to harm. As discussed below, the
undersigned recommends dismissal of Plaintiff’s SCTCA claims for intentional
infliction of emotional distress, defamation, and malicious prosecution. As to
the remaining SCTCA claims for negligence, assault, battery, and false
33
imprisonment, the undersigned recommends the district judge deny Lott’s
motion for summary judgment for immunity under the SCTCA.
a. Negligence/Gross Negligence Claims
To maintain an action for negligence, “a plaintiff must show: (1) the
defendant owes a duty of care to the plaintiff; (2) the defendant breached that
duty by a negligent act or omission; (3) the defendant’s breach was the actual
and proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered an
injury or damages.” Roddey v. Wal-Mart Stores E., LP, 784 S.E.2d 670, 675
(S.C. 2016) (citation omitted). “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. Richland Sch. Dist.
One, 534 S.E.2d 275, 277 (S.C. 2000) (citation omitted). It is the failure to
exercise even “slight care.” Id. Gross negligence has also been defined as a
“relative term, and means the absence of care that is necessary under the
circumstances.” Hollins v. Richland Cty. Sch. Dist. One, 427 S.E.2d 654, 656
(S.C. 1993).
As explained by the South Carolina Supreme Court:
An essential element in a cause of action based upon negligence is

the existence of a legal duty of care owed by the defendant to the
plaintiff. Without a duty, there is no actionable negligence. A
plaintiff alleging negligence on the part of a governmental actor or
entity may rely either upon a duty created by statute or one
founded on the common law. When the duty is created by statute,
34
we refer to this as a “special duty,” whereas when the duty is

founded on the common law, we refer to this as a legal duty arising
from “special circumstances.”
Edwards v. Lexington Cty. Sheriff’s Dep’t, 688 S.E.2d 125, 128 (S.C. 2010)
(citations omitted); see also Arthurs ex rel. Estate of Munn v. Aiken Cty., 551
S.E.2d 579, 582 (S.C. 2001) (“Today, a plaintiff alleging negligence on the part
of a governmental actor or entity may rely either upon a duty created by
statute or one founded on the common law.”); see also Faile, 566 S.E.2d at 546
(recognizing five instances in which a duty of care may arise: (1) when the
defendant has a special relationship to the victim; (2) when the defendant has
a special relationship to the injurer; (3) when the defendant voluntarily
undertakes a duty; (4) when the defendant negligently or intentionally creates
the risk; and (5) when a statute imposes a duty on the defendant).
“When the negligence plaintiff’s cause of action against a governmental
entity is founded upon a statutory duty, then whether that duty will support
the claim should be analyzed under” the public duty rule. Arthurs ex rel. Estate
of Munn, 551 S.E.2d at 583 (holding “the public duty rule is not grounded in
immunity but rather in duty . . . [and] has not been affected by the enactment
of the [SCTCA]”); see also Jensen v. Anderson County Dep’t of Soc. Servs., 403
S.E.2d 615, 617 (S.C. 1991) (adopting a six-step special duty analysis as an
exception to the public duty rule). Under the public duty rule, “statutes which
35
create or define the duties of a public office create no duty of care towards
individual members of the general public.” Edwards, 688 S.E.2d at 129. “On
the other hand, where the duty relied upon is based upon the common law. . .
then the existence of that duty is analyzed as it would be were the defendant
a private entity.” Arthurs ex rel. Estate of Munn, 551 S.E.2d at 583.
Here, Plaintiff argues that Duecker owed her a duty of care due to special
circumstances by being dispatched to her residence and by choosing to place
her in investigative detention or under his control. [ECF No. 38 at 14–16 (citing
Crowley v. Spivey, 329 S.E. 2d 774, 780 (S.C. Ct. App. 1985) and Newkirk, 240
F. Supp. 3d at 438)]. In so arguing, Plaintiff invokes a duty founded in the
common law, not statute. 25
As held by this court, under the common law duty of care, officers have
a “duty to act reasonably in [their] interactions.” Murphy v. Fields, C/A No.
3:17-2914-CMC, 2019 WL 5417735, at *8 (D.S.C. Oct. 23, 2019) (denying
RCSD’s motion for summary judgment as to claims for negligence and gross
25 Plaintiff, in one sentence, asserts an additional duty pursuant to statute,

stating as follows: “[i]n any event, South Carolina Code § 16-03-0600, assault
and battery, third degree, creates a duty against unlawful injury and S.C. Code
§ 16-3-910 to unlawfully seize.” [ECF No. 38 at 16]. This sentence is insufficient
to defeat summary judgment as to a negligence claim based on a statutory
duty, particularly where Plaintiff puts forth no argument or case law as to how
these statutes “impose[] a special duty” applicable in this instance. See, e.g.,
Edwards, 688 S.E.2d at 129.
36
negligence based on officer’s actions in effecting plaintiff’s arrest when “called
by a [school] administrator . . . to address Plaintiff’s refusal to comply with
instructions,” resulting in the plaintiff’s arrest); see also Crowley, 329 S.E. 2d
at 780 (“One who assumes to act, even though under no obligation to do so,
may become subject to the duty to act with due care.”); Newkirk, 240 F. Supp.
3d at 438 (citations omitted) (“The evidence is undisputed that Mr. Enzor
effected a roadside traffic stop of Mrs. Newkirk on I–95. Mr. Enzor chose to
place Mrs. Newkirk under his control, and Mrs. Newkirk was not free to
decline or to terminate the encounter. The Court therefore concludes as a
matter of law that Mr. Enzor created special circumstances giving rise to a
duty of care owed to Mrs. Newkirk. Specifically, Mr. Enzor owed Mrs. Newkirk
the duty to do what a reasonable and prudent person would ordinarily have
done under the circumstances of the situation.” (citations omitted)).
Lott does not address case law cited by Plaintiff and argues in his motion
that Plaintiff’s negligence-based claims should fail because South Carolina
does not recognize a cause of action for negligent arrest or a negligent
performance of a criminal investigation, citing Wyatt v. Fowler, 484 S.E.2d 590
(S.C. 1997) in support. [ECF No. 35-1 at 11–12].
In Wyatt, the plaintiff brought an action based in part on negligence
against the sheriff and three deputies after two of the deputies entered plaintiff
37
Wyatt’s house while he was sleeping, in an attempt to execute an arrest
warrant against an Allen Parrish. Id. at 591. After Wyatt provided
identification establishing that he was not Allen Parrish, the deputies left. Id.
The court held the sheriff did not owe Wyatt a legal duty, agreeing with other
jurisdictions that have held “[t]he police owe a duty to the public at large and
not to any individual” and “the state does not owe its citizens a duty of care to
proceed without error when it brings legal actions against them.” Id. The court
did not address a common-law duty.
The public duty rule, as applied in Wyatt, is not applicable in the present
case. See Arthurs ex rel. Estate of Munn, 551 S.E.2d at 582 (“When, and only
when, the plaintiff relies upon a statute as creating the duty does a doctrine
known as the ‘public duty rule’ come into play.”). As stated by the South
Carolina Supreme Court:
Appellant in this case did not allege a violation of a statutory duty

as the basis for his negligence claim. Rather, Appellant’s
allegations centered around violation of duties of care created by
the common law, such as exercising reasonable caution. Generally,
the public duty rule is invoked in cases where the duty is created
by statute and would not otherwise exist. The duty to exercise
reasonable care when operating a motor vehicle is not statutory; it
is owed from all individuals to all other individuals. Therefore, we
find the public duty rule is not implicated in this case.
Trousdell v. Cannon, 572 S.E.2d 264, 266–67 (S.C. 2002) (citations omitted);
see also Murphy, 2019 WL 7195889, at *10 (“Wyatt supports the proposition
38
that a third party injured by a law enforcement officer’s actions cannot base
the duty element of his negligence claim on that officer’s general duty to protect
the public at large. However, courts have found that a law enforcement officer
can undertake a duty of care to a particular individual that can form the basis
for a negligence claim.”); Washington v. Lexington Cty. Jail, 523 S.E.2d 204,
207 (S.C. Ct. App. 1999) (holding, based on Wyatt, that “those who maintain
custody of prisoners or inmates do so for the protection of the public and are,
therefore, not liable to individuals for damages caused by an escaped inmate
under the public duty rule.”); Brown v. Brown, 598 S.E.2d 728, 731 (S.C. Ct.
App. 2004) (“Woodrow’s complaint also included negligence claims based on
Officer McKee’s decision to choose Joseph as the replacement driver and
alleged failure by the town to properly train and supervise its police officers.
Neither of these claims is based on statutory duties. Therefore, they are not
barred by the public duty rule.”); cf. Arrington v. Hensley, C/A No. 5:15-93-BO,
2015 WL 4910203, at *2 (E.D.N.C. Aug. 17, 2015) (stating that under North
Carolina law, “the public duty doctrine has never been invoked to shield police
officers or their employers from liability where it is the affirmative actions of
the police officers themselves which cause harm”). 26
26Lott argues “Wyatt demonstrates that South Carolina does not recognize a
cause of action for negligent arrest or a negligent performance of a criminal
investigation.” [ECF No. 35-1 at 12]. However, Lott provides no South Carolina
39
Here, because Plaintiff relies on a duty founded on the common law,
Lott’s “argument based on the public duty rule is inapposite to [his] negligence
claim.” Newkirk, 240 F. Supp. 3d at 437. 27 Taking the evidence in the light
most favorable to Plaintiff and because the undersigned rejects Lott’s
arguments that Plaintiff cannot bring negligence-based claims, the
undersigned recommends the district judge deny Lott’s motion for summary
judgment as to this claim.
b. False Imprisonment
“The essence of the tort of false imprisonment consists of depriving a
person of his liberty without lawful justification.” Law v. S.C. Dep’t of Corr.,
629 S.E.2d 642, 651 (S.C. 2006) (citations omitted). “To prevail on a claim for
false imprisonment, the plaintiff must establish: (1) the defendant restrained
case law, nor is the court aware of any, so holding. Additionally, where this
court has held Wyatt precludes a plaintiff’s negligence claim against a law
enforcement officer or police department, the court did not address duties
based on common law. See Smith v. City of Charleston, C/A No. 2:06-00825-
DCN, 2007 WL 9735801, at *5 (D.S.C. July 24, 2007); Turner v. Taylor, C/A
No. 7:09-02858-JMC, 2011 WL 3794086, at *9 (D.S.C. Aug. 25, 2011).
27 The undersigned rejects Lott’s additional argument that “it is well settled
under South Carolina law that intentional torts ‘cannot be committed in a

negligent manner.’” [ECF No. 35-1 at 12 (citing State Farm Fire & Cas. Co.,
530 S.E.2d at 137)] Although Lott appears to argue otherwise, see id., this court
has held an investigation or arrest can be conducted in a negligent manner.
See, e.g., Murphy, 2019 WL 5417735, at *8 (denying defendants’ motion as to
“Plaintiff’s First Cause of Action against the RCSD for negligence and gross
negligence as to the manner of Plaintiff’s arrest by Fields”).
40
the plaintiff, (2) the restraint was intentional, and (3) the restraint was
unlawful.” Id. (citations omitted).
Lott argues that “Duecker’s attempts to place Plaintiff in investigatory
detention was undertaken with lawful authority, and, as a result, Plaintiff’s
false imprisonment [claim] fails.” [ECF No. 35-1 at 13–14 (citing Terry v. Ohio,
392 U.S. 1 (1968))]. 28 However, as discussed above, Duecker’s efforts to place
Plaintiff in investigatory detention, and thereafter arrest, occurred in
Plaintiff’s home without a warrant, permission, or exigent circumstances.
Therefore, taking facts in light most favorable to Plaintiff, her restraint was
not lawful.
Accordingly, the undersigned recommends the district judge deny Lott’s
motion for summary judgment as to Plaintiff’s false imprisonment claim.
c. Intentional Infliction of Emotional Distress
South Carolina Code Ann. § 15-78-30(f) provides that a “loss” recoverable
28 Lott further argues that “to the extent that this Court opines that probable
cause existed at the relevant times, the relatively lower legal threshold of
articulable, reasonable suspicion [as applied in Terry stops] is satisfied.” [ECF
No. 35-1 at 14]. As stated above, because Duecker lacked exigent circumstances
or permission to enter Plaintiff’s home, his entry into Plaintiff’s home was
unlawful even if he had probable cause. Additionally, although Duecker states
he entered Plaintiff’s home to place her in investigatory detention, and the use
of handcuffs in the context of some Terry stops may not be unreasonable,
“[c]ertainly, the usual rules pertaining to Terry stops do not apply in homes.”
Smith v. Jacko, C/A No. 2:16-655-BHH, 2019 WL 4162376, at *9 (D.S.C. Sept.
3, 2019) (citing United States v. Martinez, 406 F.3d 1160, 1165 (9th Cir. 2005)).
41
under the SCTCA “does not include the intentional infliction of emotional
harm.” Therefore, there is no remedy for the alleged intentional infliction of
emotional distress, and Lott is entitled to summary judgment on this cause of
action. 29
d. Defamation
The tort of defamation allows a plaintiff to recover for injury to his
reputation as the result of the defendant’s communications to others of a false
message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506
S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of
action for defamation, a plaintiff must show the existence of some message that
(1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4)
is published by the defendant, (5) concerned the plaintiff, and (6) resulted in
legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452
S.E.2d 640, 644 (S.C. Ct. App. 1994). Here, Plaintiff argues “Defendant
unlawfully charged Plaintiff resulting in a falsity, made the charge a matter of
public records necessarily, regarding Plaintiff’s criminal activity and resulting
in her incarceration and prosecution.” [ECF No. 38 at 18].
“Although accusations of a crime are slanderous per se, these defamatory
29In her response to Lott’s motion for summary judgment, Plaintiff does not
address her claim for intentional infliction of emotional distress. [See ECF No.
38].
42
statements may be protected by a qualified privilege.” Harkness v. City of
Anderson, S.C., C/A No. 8:05-1019-HMH, 2005 WL 2777574, at *5 (D.S.C. Oct.
25, 2005) (citing Holtzscheiter, 506 S.E.2d at 502). “The protection of [qualified]
privilege extends generally to remarks made in the prosecution of an inquiry
regarding a crime which has been committed; and for the purpose of detecting
and bringing the criminal to punishment.” Id. (citing Bell v. Bank of Abbeville,
38 S.E.2d 641, 643 (S.C.1946)).
A speaker can lose this qualified privilege by speaking with actual
malice. See Constant v. Spartanburg Steel Prods., Inc., 447 S.E.2d 194, 196
(S.C. 1994). “Actual malice can mean the defendant acted recklessly or
wantonly, or with conscious disregard of the plaintiff’s rights.” Id. “[T]he
burden will be upon the plaintiff to show . . . actual malice.” Bell, 38 S.E.2d at
643. “While abuse of the conditional privilege is ordinarily an issue reserved
for the jury . . . in the absence of a controversy as to the facts . . . it is for the
court to say in a given instance whether or not the privilege has been abused
or exceeded.” Woodward v. S.C. Farm Bureau Ins. Co., 282 S.E.2d 599, 601
(S.C. 1981).
Plaintiff puts forth no evidence or argument as to actual malice. 30
30Regarding this claim, Plaintiff argues only, without elaboration or support,

that “the occasion and the relationship of the parties do not give rise to
communications that were qualifiedly privileged.” [ECF No. 38 at 18].
43
Further, under South Carolina law, contents of governmental records—such
as judicial proceedings, case reports, published cases, investigative reports, or
arrest records—do not give rise to liability for slander or libel. See Padgett v.
Sun News, 292 S.E.2d 30, 32–33 (S.C.1982).
Therefore, the undersigned recommends the district judge grant Lott’s
motion for summary judgment as to Plaintiff’s claim for defamation.
e. Malicious Prosecution
Under South Carolina law, a plaintiff must plead and prove each of the
following elements to state a cause of action for malicious prosecution: (1) the
institution or continuation of original judicial proceedings; (2) by or at the
instance of the defendant; (3) termination of such proceedings in plaintiff’s
favor; (4) malice in instituting such proceedings; (5) lack of probable cause; and
(6) resulting injury or damages. See McBride v. School District of Greenville
County, 698 S.E.2d 845, 855 (S.C. Ct. App. 2010). In response to Plaintiff’s
claim for malicious prosecution, Lott invokes one of the exceptions to liability
as found in the SCTCA, providing immunity for the “institution or prosecution
of any judicial or administrative proceeding.” See S.C. Code Ann. § 15-78-
60(23).
As this court has held:
The City also contends that it is immune from liability for McCoy’s
malicious prosecution claim under the SCTCA’s immunity relating
44
to “the institution or prosecution of a judicial proceeding.” S.C.

CODE ANN. § 15–78–60(23). The Magistrate Judge recommended
that the court grant the City’s motion for summary judgment on
this issue because McCoy’s cause of action for malicious
prosecution plainly falls within this express exception. The court
agrees.
McCoy v. City of Columbia, 929 F. Supp. 2d 541, 567 n.10 (D.S.C. 2013). 31
Accordingly, the undersigned recommends the district judge grant Lott’s
motion for summary judgment as to Plaintiff’s claim for malicious prosecution.
3. Claims for Negligent Hiring, Supervision, and Retention
The South Carolina Supreme Court has explained:
Just as an employee can act to cause another’s injury in a tortious

manner, so can an employer be independently liable in tort. In
circumstances where an employer knew or should have known that
its employment of a specific person created an undue risk of harm
to the public, a plaintiff may claim that the employer was itself
negligent in hiring, supervising, or training the employee, or that
the employer acted negligently in entrusting its employee with a
tool that created an unreasonable risk of harm to the public. As
this recitation suggests, the employer’s liability under such a
theory does not rest on the negligence of another, but on the
employer’s own negligence. Stated differently, the employer’s
liability under this theory is not derivative, it is direct.
James v. Kelly Trucking Co., 661 S.E.2d 329, 330–31 (S.C. 2008) (citations
omitted). More specifically, “[n]egligent hiring cases ‘generally turn on two
fundamental elements—knowledge of the employer and foreseeability of harm
31Plaintiff does not address the applicability of S.C. Code Ann. § 15-78-60(23)
to her claim for malicious prosecution or address case law cited by Lott in
support. [See ECF No. 38 at 19].
45
to third parties.’” Kase, 707 S.E.2d at 459 (citing Doe v. ATC, 624 S.E.2d 447,
450 (S.C. Ct. App. 2005)). Similarly, to prove negligent retention, a plaintiff
must show that “the employer had knowledge of its employee’s habit of prior
wrongdoings, and despite the foreseeability of harm to third parties, the
employer failed to terminate the offending employee before he caused the
plaintiff harm.” Callum v. CVS Health Corp., 137 F.Supp.3d 817, 860 (D.S.C.
2015) (citing Doe, 624 S.E.2d at 450–51). A plaintiff “must demonstrate some
propensity, proclivity, or course of conduct sufficient to put the employer on
notice of the possible danger to third parties.” Id. (citing Doe, 624 S.E.2d at
451). An employer is liable under a theory of negligent supervision when an
employee:
(1) is upon the premises of the employer, or is using a chattel of

the employer,
(2) the employer knows or has reason to know that he has the
ability to control his employee, and
(3) the employer knows or should know of the necessity and
opportunity for exercising such control.
Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 12 (S.C. Ct. App.
1997) (citing Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C.
1992)).
These cases “will ordinarily be determined by the factfinder, and not as
a matter of law.” Doe, 624 S.E.2d at 450 (citations omitted); see also Kase, 707
S.E.2d at 459. “Nevertheless, the court should dispose of the matter on a

46
dispositive motion when no reasonable factfinder could find the risk
foreseeable or the employer’s conduct to have fallen below the acceptable
standard.” Doe, 624 S.E. 2d at 450.
Duecker began his employment with RCSD in April 2017 after he had
been previously employed by the City of Columbia Police Department (“CPD”)
as a patrol officer from October 2011 to August 2014. [ECF No. 38-1 at 7:9–13,
12:9–12, 13:8–11]. Plaintiff has put forth evidence concerning two incidents
that occurred prior to February 1, 2019, arguing RCSD knew or should have
known its employment of Duecker created an undue risk of harm to the public
based on knowledge of these incidents.
First, on February 19, 2014, Duecker detained and arrested Darris
Hassell (“Hassell”) for driving under the influence “despite multiple indicators
of sobriety.” [See ECF No. 38 at 4, 21, see also ECF No. 12 ¶ 10]. Following
dismissal of the criminal charge, Hassell filed an action alleging various torts
in the Court of Common Pleas for Richland County against the City of
Columbia in Hassell v. City of Columbia, C/A No. 2016-CP-40-00910. [See ECF
No. 38-1 at 11:8–24, ECF No. 38-7]. After RCSD hired Duecker in April 2017,
he testified in the Hassell trial between May 15, 2017 and May 18, 2017, and
on May 19, 2017, a Richland County jury returned a verdict against the City
of Columbia in the amount of $200,075, finding for Hassell on claims of false
47
arrest, malicious prosecution, and negligent supervision. [ECF No. 38-7, ECF
No. 35-5]. 32
Second, on May 13, 2018, Duecker was dispatched to the residence of
Darius Gaskins (“Gaskins”) to respond to a report of domestic disturbance.
Based on the body camera worn by Duecker at the time, Plaintiff argues as
follows:
When Duecker arrived on the scene, he entered the residence

without consent and encountered Gaskins and Gaskins’ mom, dad,
and sister and a child in the living room. As the Gaskins began to
explain the domestic dispute to Duecker, Duecker began telling
Gaskins, who was not speaking any louder than the other
individuals present, to “calm down” and “bring [his] volume down.”
After less than a minute of asking Gaskins to lower his voice,
Duecker proceeded into the residence, without consent, warrant or
probable cause, crossing the living room, in order to place Gaskins
in handcuffs. Another officer on the scene (“Officer”) then assisted
Duecker in placing handcuffs on Gaskins. When Officer had
Gaskins by the neck and Gaskins had stopped physically resisting,
Duecker deployed his taser on Gaskins.
[ECF No. 38 at 5–6 (citations omitted), see also ECF No. 38-9 (Gaskins incident
body camera footage), ECF No. 38-10 (use of force report completed by Duecker
stating “[f]ollowing my taser deployment, subject was assisted to the ground
and handcuffed)]. In his deposition, Duecker identified the other officer on the
32 Fairbanks testified that he became aware that Duecker “got into trouble . . .
[e]nough to where he was no longer employed” with CPD, referencing the
Hassell incident. [ECF No. 38-5 at 19:19–20:15]. Duecker testified, however,
that he left CPD to pursue a degree. [ECF No. 38-1 at 10:10].
48
scene as his supervisor at the time. [ECF No. 38-1 at 23:2–15].
According to Plaintiff, Gaskins was charged with public disorderly
conduct pursuant to S.C. Code Ann. § 16-17-530, which provides that a person
is guilty of public disorderly conduct if:
(1) found on any highway or at any public place or public gathering

in a grossly intoxicated condition or otherwise conducts himself in
a disorderly or boisterous manner; (2) uses obscene or profane
language on any highway or at any public place or gathering or in
hearing distance of any schoolhouse or church . . . .
S.C. Code Ann. § 16-17-530 (emphasis added). The charges against Gaskins
were subsequently dismissed. [ECF No. 38-1 at 19:1–15].
Plaintiff argues, like here, Duecker lacked evidence and probable cause
to arrest Hassell. [ECF No. 38 at 21]. Additionally, Plaintiff argues that
Duecker entered Gaskins’s residence without consent, warrant, probable
cause, or exigent circumstances, employed his taser when Gaskins was
passive, and arrested Gaskins for public disorderly conduct when Gaskins was,
at all relevant times, in his home and could not have been violating the
relevant statute. [See ECF No. 38 at 21–22, see also ECF No. 44]. 33 Plaintiff
argues “[b]ased on the aforementioned facts, there is a genuine issue of
33 Lott does not dispute Plaintiff’s summary of the Gaskins incident or

argument concerning the similarities between the Gaskins incident and the
instant incident beyond stating that “there are no indications that Duecker
activated his taser more than once or that his use of force was unwarranted,
unreasonable, or excessive.” [See ECF No. 44 at 7–8].
49
material fact that RCSD was on actual or constructive knowledge that Duecker
created an undue risk of harm to the Plaintiff and/or the public because RCSD
knew or should have known that Duecker had the propensity to (1) unlawfully
enter other’s residence, (2) to effectuate unlawful arrests without the proper
justification, (3) to exert excessive force when effectuating the unlawful arrests
and (4) to continue to prosecute individuals without legally sufficient
evidence.” [ECF No. 38 at 22].
The undersigned recommends dismissal of Plaintiff’s claim for negligent
hiring. Here, at best, the only knowledge RCSD would have had in hiring
Duecker was that a lawsuit was ongoing that involved a complaint concerning
Hassell’s arrest for a DUI. No reasonable factfinder could find foreseeable the
risk that Duecker would harm Plaintiff based on such limited information.
However, as to Plaintiff’s claims for negligent supervision and retention,
Plaintiff has put forth sufficient evidence that would allow a reasonable
factfinder to conclude the risk was foreseeable and RCSD’s conduct to have
fallen below the acceptable standard. See Doe, 624 S.E. 2d at 450. In so
concluding, the undersigned notes that Plaintiff’s burden is not heavy and that
such considerations are generally the province of the jury. See, e.g., id. at 451
(“We hold that a single isolated incident of prior misconduct (of which the
employer knew or should have known) may support a negligent retention
50
claim, provided the prior misconduct has a sufficient nexus to the ultimate
harm.”); id. at 450 (“Such factual considerations—especially questions related
to proximate cause inherent in the concept of foreseeability—will ordinarily be
determined by the factfinder, and not as a matter of law.”). Here, Duecker’s
actions, particularly in the Gaskins incident, of which his employer knew or
should have known, have sufficient nexus to the harm Plaintiff alleges.
Lott argues there is no record evidence concerning a citizen’s complaint,
disciplinary infraction, internal investigation, or judicial determination that
Duecker had unlawfully entered a residence or employed excessive force, as
opposed to employing reasonable force. [See ECF No. 44 at 7–8]. However, Lott
does not cite to, nor is the court aware of, case law requiring this type of
evidence to establish prior misconduct. See, e.g., Wingate v. Byrd, C/A No. 4:13-
03343-BHH-KDW, 2016 WL 8711435, at *9 (D.S.C. Aug. 19, 2016) (“Rather,
courts have examined specific evidence regarding an employee’s history,
behaviors, or pattern of behavior when examining causes of action for negligent
supervision or negligent training”), report and recommendation adopted, 211
F. Supp. 3d 816 (D.S.C. 2016), opinion vacated in part on reconsideration, C/A
No. 4:13-3343-BHH, 2016 WL 7012962 (D.S.C. Dec. 1, 2016); Kase, 707 S.E.2d
at 459 (examining employee’s poor driving record, insubordinate behavior,
marital difficulties and resulting financial problems, and prior erratic behavior
51
before holding that employer was not liable under negligent supervision and
retention causes of action); Doe by Doe v. Greenville Hosp. Sys., 448 S.E.2d 564
(S.C. Ct. App. 1994) (holding hospital had prior notice of inappropriate sexual
behavior on part of male employee so as to be liable for negligent hiring and
supervision where the hospital was aware of allegations of inappropriate
behavior even though employee denied it); see also James v. Kelly Trucking
Co., 661 S.E.2d 329, 331 (S.C. 2008) (acknowledging that often pieces of
evidence “such as a prior driving record, an arrest record, or other records of
past mishaps or misbehavior by the employee” are offered to prove a negligent
hiring, training, supervision, or entrustment claim).
Accordingly, the undersigned recommends the district judge grant Lott’s
motion for summary judgment as to Plaintiff’s claim for negligent hiring, but
deny it as to Plaintiff’s claim for negligent supervision and retention.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district
judge deny Duecker’s motion for summary judgment [ECF No. 34] and grant
in part and deny in part Lott’s motion for summary judgment [ECF No. 35],
dismissing Plaintiff’s claims for intentional infliction of emotional distress,
defamation, malicious prosecution, and negligent hiring.
52
IT IS SO RECOMMENDED.
December 16, 2020 Shiva V. Hodges

Columbia, South Carolina United States Magistrate Judge
The parties are directed to note the important information in the attached
“Notice of Right to File Objections to Report and Recommendation.”
53
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to
this Report and Recommendation with the District Judge. Objections must
specifically identify the portions of the Report and Recommendation to which
objections are made and the basis for such objections. “[I]n the absence of a
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.’” Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note).
Specific written objections must be filed within fourteen (14) days of the
date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk

United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and

Recommendation will result in waiver of the right to appeal from a judgment
of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir.
1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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3:19-cv-02031-CMC Date Filed 12/16/20 Entry Number 48 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT

Sheila Webb, ) C/A No.: 3:19-2031-JMC-SVH

Sheila Webb (“Plaintiff”) originally filed this matter in the Court of

Department (“RCSD”), and Cameron Duecker (“Duecker”), pursuant to the

U.S.C. § 1983. Plaintiff’s complaint concerns Duecker’s arrest of her on

February 1, 2019, and her subsequent confinement. More specifically, Plaintiff

asserts Fourth and Fourteenth Amendment claims for unreasonable seizure

imprisonment, intentional infliction of emotional distress, defamation, assault,

47], they are ripe for disposition.

All pretrial proceedings in this case were referred to the undersigned

pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule

73.02(B)(2)(f) (D.S.C.). Because the summary judgment motions are

dispositive, this report and recommendation is entered for review by the

The parties agree that on the afternoon of February 1, 2019, Duecker

was dispatched to 50 Periwinkle Court in Irmo, South Carolina, to respond to

a complaint made to 911 by Plaintiff, a 58-year-old female, that her brother,

William Gossette (“Gossette”), had unlawfully used their incapacitated

short verbal dispute, with Duecker interjecting. Id. at 19:28:40–19:29:25.

car.” Id. at 19:29:25–19:29:50. 3 Duecker responded by taking out his handcuffs

Plaintiff then became increasingly antagonistic, retreating into the

culminating in telling Duecker that he was not “going to do shit.” Id. at

19:29:54–19:30:58. During this time, Gossette also informed Duecker that

Plaintiff had summoned law enforcement to the residence on several occasions

the possible initiation of eviction protocols. Id. Plaintiff reappeared, continued

a false police report.” Id. at 19:30:58–19:31:05. 4 Duecker followed Plaintiff into

3 Plaintiff confirmed in her deposition that at the time of the incident in

tried to move away from Duecker. Id. at 19:31:05–19:31:13. Duecker repeatedly

Plaintiff’s arm and forced it behind her, attempting to put Plaintiff in

wrestled on her bed, with Duecker standing, as Plaintiff attempted to keep

5 Duecker stated he “tried to use muscling techniques to gain compliance,

taser, including Corporal Fairbanks (“Fairbanks”), Duecker’s supervisor, who

and we assisted in handcuffing Ms. Webb.”)].

According to a report written by Fairbanks:

The taser delivers a five-second cycle of electricity designed to override the

my corporal and my lieutenant on the scene and the demeanor of Corporal

assault on a police officer while resisting arrest.”)]. Plaintiff was treated by

emergency medical services and transported to Alvin S. Glenn Detention

Center. Id. at 42:13–18. Plaintiff’s charges were favorably dismissed on or

about March 6, 2019. [ECF No. 37-4].

RCSD. [ECF No. 38-1 at 42:6–12]. Following a criminal investigation,

Lieutenant Isenhoward (“Isenhoward”) for RCSD charged Duecker with

assault and battery, third degree, as a result of Duecker’s arrest of Plaintiff.

A. Standard on Summary Judgment

initial burden of demonstrating that summary judgment is appropriate; if the

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

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

of summary judgment. Factual disputes that are irrelevant or unnecessary will

not be counted.” Id. at 248.

1. Claims for Unreasonable Seizure and Excessive Force

Duecker argues (1) he is entitled to qualified immunity, (2) Plaintiff’s

amount of force was objectively reasonable in light of the totality of the

arguments, arguing additionally that Duecker’s motion as to these claims fail