Roberts v. Bodison

BRANDON ROBERTS, paralegal; AND JULIAN ROBERTS,on the behalf of St. Clair C. Roberts, PLAINTIFFS, v. MIKITHER BODISON, LIEBER CORRECTIONAL INSTITUTION,SCDC DIVISION OF HEALTH SERVICES, NFN BABB,NFN JONES, AND JOHN/JANE DOE, DEFENDANTS.

C/A No. 2:14-CV-00750-MGL-MGB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

November 20, 2015

REPORT AND RECOMMENDATION

This is a civil action filed by pro se litigants. The Plaintiffs' Amended Complaint alleges causes of action under 42 U.S.C. §§ 1983, 1985-86, 1988 and state law claims under the "Wrongful Death Statute" and the "Survival Act." (Dkt. No. 5.) Before the court is the Defendant's [sic] Motion to Dismiss (Dkt. No. 43). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC.

The Defendant's [sic] Motion to Dismiss (Dkt. No. 43) moves to dismiss the Plaintiffs' claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure and state law on the following grounds:

1. Plaintiffs are not and never have been the Personal Representatives of the Estate of Clarence St. Clair Roberts, and therefore have no standing to bring this case pursuant to § 15-51-10,etseq;

2. Plaintiffs have failed to contemporaneously file an expert affidavit with the filing of their Complaint for medical malpractice which is required by S.C. Code §§ 15-36-100 and 15-79-125; 3. Plaintiffs have failed to file this claim within the accepted Statute of Limitations under S.C. Code Ann. § 15-3-530(5) and § 15-78-100;

4. Plaintiffs have named non-legal entities Lieber Correctional Institution and SCDC Health Services as parties to this action, and therefore they must be dismissed....

(Dkt. No. 43.) Plaintiff Brandon Roberts responded to the Defendants' motion on June 8, 2015.¹ (Dkt. No. 70.)

Factual Background²

The Plaintiffs are suing on behalf of their father, St. Clair C. Roberts, who is now deceased. At all times relevant to the instant case, the decedent was in the custody of the South Carolina Department of Corrections at Liebert Correctional Institute. In March of 2011, the decedent suffered a massive heart attack and died. According to an autopsy, the decedent's cause of death was acute coronary artery insufficiency. Prior to his death, the decedent was diagnosed with diabetes and had one of his legs amputated.

The Plaintiffs allege the decedent's death was the result of many negligent, reckless, and intentional acts and omissions on the part of the Defendants. These allegations include that the Defendants caused the decedent to go untreated for his conditions, denied him physical therapy, failed to conduct routine medical exams and tests, deviated from the proper standard of care, and ignored serious medical needs.

Standard of Review

The Defendants' Motion is made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On a 12(b)(6) motion, a "complaint must be dismissed if it does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are 'enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). "A plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). For purposes of a motion to dismiss, the district court must "take all of the factual allegations in the complaint as true." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the "legal conclusions drawn from the facts, . . .unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).

42 U.S.C §1983 Claims

In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she "has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States," and (2) "that the conduct complained of was committed by a person actingunder color of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635, 540 (1983); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980).

Section 1983 does not specifically articulate every action and remedy that may be brought and recovered under it. Burnett v. Grattan, 468 U.S. 42, 47 (1984). When a claim under §1983 requires further guidance than the section contains to be adjudicated, 42 U.S.C. §1988 provides authorization for federal courts to use appropriate rules from the forum state court. Id. Courts must undertake the following three-step inquiry under § 1988:

First, courts are to look to the laws of the United States "so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect." If no suitable federal rule exists, courts undertake the second step by considering application of state "common law, as modified and changed by the constitution and statutes" of the forum State. A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not "inconsistent with the Constitution and laws of the United States." (alterations in original)

Id. at 47-48 (internal citations omitted).

The Plaintiffs' §1983 claims all allege constitutional violations committed by the Defendants that resulted in the death of their father, St. Clair C. Roberts. (See Dkt. No. 5.) Therefore, before it can proceed, the court must determine whether the Plaintiffs' claims under §1983 may survive the death of St. Clair C. Roberts. The court must utilize § 1988 to determine if the Plaintiffs' § 1983 claims survive the death of their father. (Id.)

1. Section 1988 Step 1

Under the three-step inquiry required by § 1988, this court first must "look to the laws of the United States 'so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect.'" Burnett 468 U.S. at 47 (internal citations omitted) (alterations in original). The survival of civil rights actions under § 1983 following the death of the plaintiff is not coveredby federal law. Robertson v. Wegmann, 436 U.S. 584, 589 (1978). In such situations, state law regarding such claims dictates survivability. Id.

2. Section 1988 Step 2

Because the survivability of civil rights claims under § 1983 is not addressed by federal law, the court must perform the second step in the three-step inquiry required by § 1988. The court must determine the applicability of "the common law, as modified and changed by the constitution and statutes of the [forum] State." 42 U.S.C. § 1988(a). The survival of the Plaintiffs' civil rights actions under § 1983 is dictated by South Carolina state law regarding such claims. Id.

South Carolina has created a statutory cause of action to recover for the wrongful death of a person "in derogation of the common law rule that a tort action dies with the death of the injured person." Crosby v. Glasscock Trucking Co., 340 S.C. 626, 628, 532 S.E.2d 856, 856 (2000). In South Carolina, "[t]he right of action for wrongful death is purely statutory and did not exist at common law and may be brought only by the executor or administrator of such deceased person." Glenn v. E. I. DuPont De Nemours & Co., 254 S.C. 128, 133, 174 S.E.2d 155, 157 (1970) (citing Lilly v. Railroad Co., 32 S.C. 142, 10 S.E. 932.) The South Carolina wrongful death statute states that "[w]henever the death of a person shall be caused by the wrongful act, neglect or default of another and the act...would, if death had not ensued, have entitled the party injured to maintain an action and recover damages...the person who would have been liable...shall be liable to an action for damages, notwithstanding the death of the person injured." S.C. Code § 15-51-10. Actions brought to recover for wrongful death "shall be brought by or in the name of the executor or administrator of such person." S.C. Code Ann. § 15-51-20. The statute is unequivocal andwithout exception that only the executor or administrator of the decedent's estate may bring an action for wrongful death.

In the case at bar, neither Plaintiff has been appointed as the personal representative, executor, or administrator of the estate of St. Clair C. Roberts ("the estate"). (See Dkt. No. 43-2.) In his reply to the motion to dismiss, Plaintiff Brandon Roberts does not dispute that neither he nor Julian Roberts are the Personal Representative of the estate. (Dkt. No. 70-1.) The Probate Court initially appointed Irene Simmons Roberts as the Personal Representative of the estate based on her affidavit that stated she was the decedent's surviving spouse. (Id.) Plaintiff Brandon Roberts made a filing with the Probate Court alleging Irene Simmons Roberts was not the decedent's surviving spouse. (Id.) The Probate Court conducted a hearing on October 21, 2011. (Id.) Following the hearing, the Probate Court entered an order terminating Irene Simmons Roberts as the Personal Representative of the estate. (Id.) In the same order, the Probate Court ordered that "[t]wenty (20) days from the date of this Order, Keyona Roberts shall be appointed to serve as Personal Representative of the Estate." (Id.) The Probate Court "suspend[ed] the...