REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This action has been filed by the Plaintiff asserting claims for violations of her federal statutory and constitutional rights, and for defamation under the South Carolina Tort Claims Act (SCTCA), S.C.Code Ann. §15-78-10, et seq. The Defendants filed a motion to dismiss pursuant to Rule 12, Fed.R.Civ.P., on January 22, 2019, to which Plaintiff filed a response in opposition on February 5, 2019. Defendants' motion is now before the Court for disposition.1

Discussion

In her First Cause of Action, Plaintiff asserts a discrimination claim against the Defendant Beaufort County Sheriff's office under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See Complaint, ¶¶ 62-79. In her Second Cause of Action, Plaintiff asserts a race discrimination claim against all of the Defendants pursuant to 42 U.S.C. § 1981. Id, at ¶¶ 80-89.2 In her Third and Fourth Causes of Action, Plaintiff asserts claims against all of the Defendants for violations of her constitutional rights pursuant to 42 U.S.C. § 19833. Id., at ¶¶ 90-109. In her Fifth Cause of Action (which Plaintiff mistakenly labeled as a second Fourth Cause of Action), Plaintiff asserts a tort claim (defamation) against all of the Defendants pursuant to the SCTCA. Id., at ¶¶ 110-115.

In Defendants' partial motion to dismiss, Defendants argue that Plaintiff's § 1981 claim should be dismissed, that Plaintiff's federal claims against the Defendants Beaufort County Sheriff's Office and Baird and Tanner, in their official capacities, should be dismissed, and that Plaintiff's state law defamation claim against the Defendant Beaufort County Sheriff's Office should be dismissed. In her response, Plaintiff states that it was a scrivener's error to include the Defendant Beaufort County Sheriff's Office in her § 1983 cause of action, and she therefore consents to the dismissal of her § 1983 claim against the Defendant Beaufort County Sheriff's Office. See Memorandum in Opposition to Defendants' Motion to Dismiss, pp. 5-6.4

With respect to the remainder of Defendants' arguments, when considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the Plaintiff. The motion can be granted only if the Plaintiff has failed to set forth sufficient factual matters in the Complaint to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Vogt v. Greenmarine Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y. 2004) ["[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable."].

Plaintiff's Section 1981 Claim

To pursue a claim under § 1981, Plaintiff must prove that the Defendants "intended to discriminate [against the Plaintiff] on the basis of [her] race, and that the discrimination interfered with a contractual interest." Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir.2006). Defendants argue that Plaintiff's § 1981 claim is subject to dismissal because she did not have a "contract" with the Defendant Beaufort County Sheriff's Office. However, while Defendants contend that Plaintiff's employment was "at the pleasure" of the Sheriff, for purposes of Plaintiff's § 1981 claim it does not matter if she actually had an employment contract or if she was an at-will employee. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-1019 (4th Cir.1999) [holding that even an at-will employment relationship is contractual and may serve as a predicate for a § 1981 claim]; see also McLean v. Patten Communities, Inc., 332 F.3d 714, 719 (4th Cir. 2003)[same]; Sellers v. S.C. Autism Soc., Inc., 861 F.Supp.2d 692, 696 (D.S.C. 2012)[applying the Spriggs holding under South Carolina contractual law].

Therefore, Defendants' motion to dismiss Plaintiff's § 1981 claim should be denied.

Plaintiff's Section 1983 Claims

Defendants contend that Plaintiff cannot maintain her § 1983 federal constitutional claims in this Court against the Defendants Tanner and Baird in their official capacities, as such claims are barred by Eleventh Amendment immunity.5

Since County Sheriffs are state officers, not county employees, a suit against the "Beaufort County Sheriff's Office" is a suit against the state of South Carolina for purposes of Eleventh Amendment immunity. Gulledge v. Smart, 691 F.Supp. 947, 954-955 (D.S.C. 1988) [Sheriff's office entitled to Eleventh Amendment immunity from suit]; see Cash v. Thomas, No. 12-1278, 2013 WL 3804375, at * 7 (D.S.C. July 19, 2013)["It is well settled, both in South Carolina and federal law, that a Sheriff in South Carolina is an arm of the State and not a County employee and therefore is entitled to Eleventh Amendment immunity in his or her official capacity from suit in Federal Court"], citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996). Further, Tanner, as the Sheriff, and Baird, as an employee of the Sheriff, are state employees and therefore are immune from suit for damages in federal court in their official capacities. Gulledge, 691 F.Supp. at 954-955 [Sheriffs and deputy sheriffs are agents of the State and cannot be sued for damages in their official capacities]; Jamison v. Bamburg, No. 11-2245, 2012 WL 7656426, at * 3 (D.S.C. Nov. 28, 2012)["[T]he Detention Center defendants [sued in their official capacities] are entitled to sovereign immunity"], aff'd, 2013 WL 819193 (D.S.C. Mar. 5, 2013).

In her response, Plaintiff does not argue that her § 1983 claims can proceed against the Defendants Tanner and Baird in their official capacities for damages.6 However, she notes that she has also requested injunctive relief, and argues that her claims should be allowed to proceed against these Defendants in their official capacities for injunctive relief. The undersigned agrees. See Harper v. C.O. Joseph Barbagallo, No. 14-7529, 2016 WL 5419442 at * 7 (S.D.W. Va. Sept. 27, 2016) ["[O]fficial sued in his official capacity for prospective injunctive or declaratory relief is subject to suit"] (citing Lynn v. West, 134 F.3d 582, 587-588 (4th Cir. 1998)). Therefore, to the extent Defendants seek dismissal of Plaintiff's § 1983 claims against Tanner and Baird in their official capacities for injunctive relief, their motion should be denied. See also Hutto v. South Carolina Retirement Systems, 773 F.3d 536, 549 (4th Cir. 2014).

Defamation

While Plaintiff brings her defamation claim against all of the Defendants, the Defendant Beaufort County Sheriff's Department moves for dismissal because it is a government agency and therefore immune from employee conduct which constitutes actual fraud, actual malice, intent to harm, or a crime of moral turpitude.7

The SCTCA provides a limited waiver of immunity by state and local governmental entities. See S.C. Code Ann. § 15-78-10, et seq. Specifically, the SCTCA waives the State of South Carolina's sovereign immunity in state court for certain tort claims, but specifically reserves South Carolina's Eleventh Amendment immunity from suit in federal court. See S.C. Code Ann. § 15-78-20(e) [Nothing in this chapter is construed as a waiver of the state's . . . immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States . . . ."]. While it is possible for the State to waive its immunity; cf. Union Pacific Railroad Company v. La. Public Service Commission, 662 F.3d 336, 341 (5th Cir. 2011)["[T]he central inquiry in determining a waiver of Eleventh Amendment immunity [is] whether the State's litigation conduct constituted a voluntary invocation of federal jurisdiction"]; Lapides v. Board of Regents of the Univ. System of Georgia, 535 U.S. 613, 619 (2002)[A state's voluntary appearance in federal court waives sovereign immunity to claims where a state has consented to suit in its own courts for such claims]; the Defendant Sheriff's Office has specifically asserted its immunity from suit in this Court from any state law defamation claim. See Answer, ¶ 66; see also generally Answer; DeCecco v. University of South Carolina, 918 F.Supp.2d 471, 498-499 (D.S.C. 2013)[Finding no waiver where defense was raised in Answer and in motion after close of discovery].

Therefore, while Plaintiff could possibly pursue such a claim against the Defendant Beaufort County Sheriff's Department in state court, this Defendant is entitled to dismissal as a party Defendant on this claim in this lawsuit.8

Conclusion

Based on the foregoing, it is recommended that the Defendants' motion to dismiss Plaintiff's second cause of action under § 1981 be denied; that the Defendants' motion to dismiss Plaintiff's § third and fourth causes of action under § 1983 against the individual Defendants Tanner and Baird in their official capacities be denied as to any injunctive relief being sought, but granted as to any damages being sought; and that the Defendant Beaufort County Sheriff's Department be dismissed, without prejudice, from Plaintiff's fifth (listed as her second fourth) cause of action under the SCTCA for defamation. Since Plaintiff concedes that she did not intend to bring her § 1983 claims against the Defendant Beaufort County Sheriff's Office, that Defendant should also be dismissed from her third and fourth causes of action asserting claims under § 1983.

The parties are referred to the Notice Page attached hereto.

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:

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).