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ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) THIRTEENTH JUDICIAL CIRCUIT
COUNTY OF PICKENS )
) Civil Action No.: 2023-CP-39-______
Alicia L. Tolbert, MD, and Bret Tolbert, )
)
Plaintiffs, )
) SUMMONS
vs. ) (Jury Trial Demanded)
)
South Carolina Department of Health and )
Environmental Control; Edward Simmer, in )
his official capacity as Director of the South )
Carolina Department of Health and )
Environmental Control; and Jessica A. )
Shields, in her individual capacity, )
)
Defendants. )
)
TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED and required to answer the Complaint in the above-
entitled action, a copy of which is herewith served upon you, and to serve a copy of your answer
upon the undersigned at their offices at 807 Gervais Street, Suite 301, Columbia, SC 29201, within
thirty (30) days after service hereof upon you, exclusive of the date of service, and if you fail to
answer the Complaint within the time, judgment by default will be rendered against you for the
relief demanded in the Complaint.
[Signature follows]
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Respectfully submitted,
s/James H. May
James H. May (S.C. Bar No.: 74278)
Matthew T. Richardson (S.C. Bar No.: 15647)
Brian Critzer (S.C. Bar No.: 103159)
Wyche, P.A.
807 Gervais Street, Suite 301 (29201)
Post Office Box 12247
Columbia, South Carolina 29211
Telephone: 803-254-6542
Facsimile: 803-254-6544
jmay@wyche.com
mrichardson@wyche.com
bcritzer@wyche.com
Attorneys for Plaintiffs
September 28, 2023
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STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) THIRTEENTH JUDICIAL CIRCUIT
COUNTY OF PICKENS )
) Civil Action No.: 2023-CP-39-______
Alicia L. Tolbert, MD, and Bret Tolbert, )
)
Plaintiffs, )
)
vs. ) COMPLAINT
) (Jury Trial Demanded)
South Carolina Department of Health and )
Environmental Control; Edward Simmer, in )
his official capacity as Director of the South )
Carolina Department of Health and )
Environmental Control; and Jessica A. )
Shields, in her individual capacity, )
)
Defendants. )
)
Plaintiffs Alicia L. Tolbert, MD and Bret Tolbert complain of Defendants as set forth
herein, would respectfully show unto the Court and jury as follows:
1. This is an action for negligence/gross negligence, defamation, a claim under 42
U.S.C. § 1983, loss of consortium and related damages arising out of the illegal arrest of Dr.
Tolbert by Defendants on September 28, 2021.
2. Dr. Tolbert was wrongly accused and illegally arrested for supposedly engaging in
a criminal conspiracy to violate the South Carolina Controlled Substances Act.
3. The charges against her were subsequently dismissed, but the damage to Dr. Tolbert
was already done.
THE PARTIES
4. Plaintiffs are Alicia L. Tolbert, MD (“Dr. Tolbert”) and her husband, Bret Tolbert.
5. Dr. Tolbert and her husband are citizens and residents of South Carolina, residing
in Pickens County.
6. Defendant South Carolina Department of Health and Environmental Control
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(“DHEC”) is an agency of the State of South Carolina subject to suit under S.C. Code Ann. § 15-
78-10 et seq. who, among other things, is responsible for issuing, suspending, revoking, denying,
inspecting, regulating, enforcing, investigating and/or monitoring the licensure of health care
providers, in order to promote the health, safety and well-being of the public.
7. Defendant Simmer is the Director of DHEC.
8. The Bureau of Drug Control (“Bureau”) is the organization within DHEC that is
responsible for administering the South Carolina prescription monitoring program.
9. Defendant Jessica A. Shields is an agent for the Bureau.
10. Defendants DHEC, Defendant Simmer, and Defendant Shields are the
“Defendants.”
JURISDICTION, VENUE, AND PROCEDURAL BACKGROUND
11. The events giving rise to this action occurred in Pickens County.
12. The Court has jurisdiction over the parties and subject matter of this action, and
venue is proper in Pickens County.
13. This Court has jurisdiction under Article V, §11 of the South Carolina Constitution,
South Carolina Code Annotated § 14-1-80, and the Common Law of South Carolina.
14. Venue is proper in Pickens County under South Carolina Code Annotated § 15-7-
30.
STATEMENT OF THE FACTS
15. Dr. Tolbert is a medical doctor practicing in Pickens County, South Carolina.
16. Dr. Tolbert’s husband and two minor children received medical care and treatment
from Warren Gentry, MD (“Dr. Gentry”).
17. Dr. Tolbert’s husband and two children required certain medication, which was
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legally prescribed by Dr. Gentry, who was their family physician at the relevant times and had
been for many years.
18. Defendant DHEC, through its Bureau of Drug Control and specifically through
Defendant Shields, initiated an investigation into a series of prescriptions written by Dr. Gentry in
2019 and 2020 for medication prescribed to Dr. Tolbert’s husband and two minor children.
19. Upon information and belief, Defendant Shields developed and implemented the
policies that focused on targeting doctors with criminal investigations and illegal arrests for alleged
violations of laws pertaining to controlled substances.
20. Upon information and belief, Defendant Shields contributed to the implementation
of policies whereby Defendants and agents of Defendants arrested doctors in a manner that violated
the law.
21. On September 21, 2021, Defendant Shields applied for a warrant for Dr. Tolbert’s
arrest alleging that, on or about September 8, 2019, through October 17, 2020, Dr. Tolbert
conspired with Dr. Gentry to “possess a quantity of methylphenidate outside of a bona fide
practitioner-patient relationship” in violation of S.C. Code Ann. § 44-53-370(b)(2).
22. Defendant Shields represented that probable cause for the warrant was “based on
SC DHEC Bureau of Drug Control investigation.”
23. Defendant Shields also procured an unlawful arrest warrant, and Dr. Tolbert was
arrested on September 28, 2021.
24. Defendant Shields procured an arrest warrant for Dr. Tolbert despite the fact that
DHEC had no authority to arrest an individual under S.C. Code Ann. § 44-53-380 because
subsection (b) requires prosecution “by an information or indictment.”
25. A law enforcement officer is specifically prohibited by this statute from issuing an
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arrest warrant because an arrest can only take place after a grand jury has determined that the
defendant acted with knowing and intentional misconduct and issues an indictment or the
defendant has agreed to the prosecution under an information and the prosecutor has filed formal
charges. Neither an indictment nor an information was procured for Dr. Tolbert’s arrest, and
Defendants are not law enforcement officers.
26. An arrest warrant without an indictment or an information is per se prohibited under
the statute.
27. Dr. Tolbert’s arrest was publicly disseminated, disparaging her excellent reputation
within the profession and community and with patients and potential patients.
28. As an additional result, Dr. Tolbert needlessly endured an investigation by the
South Carolina Department of Labor, Licensing and Regulation (“LLR”).
29. The State dismissed all charges against Dr. Tolbert because she committed no
wrongdoing and because Defendants did not have probable cause or the authority to arrest her.
DHEC Failed to Conduct a Competent Investigation
30. Dr. Tolbert was arrested on three charges of conspiracy with regard to the Schedule
II Controlled Substance methylphenidate, the generic name of Concerta.
31. The arrest resulted from allegations that Dr. Gentry was treating Dr. Tolbert’s
husband and two minor children outside of a “bona fide patient-practitioner relationship.”
32. There were no allegations that Dr. Tolbert wrote any prescriptions unlawfully, nor
were there allegations that the medicine prescribed by Dr. Gentry was diverted for improper
reasons.
33. The records established that Dr. Tolbert’s husband and two minor children required
the medication prescribed to them, dating back over fifteen years when Dr. Gentry began treating
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Dr. Tolbert’s family.
34. As their family physician, Dr. Tolbert’s family members made routine visits to Dr.
Gentry, and Dr. Gentry prescribed them various medications throughout their treatment, including,
but not limited to, methylphenidate.
35. Dr. Tolbert’s family members used the medication as directed.
36. Defendants based their charges against Drs. Tolbert and Gentry by alleging that a
“bona-fide patient practitioner relationship” did not exist between Dr. Gentry and Dr. Tolbert’s
husband and children.
37. Dr. Gentry exercised his own judgment based on his comprehensive medical
knowledge of his patients when he signed his name for prescriptions for established medical needs
of three individuals whom he knew and cared for, and who happened to be Dr. Tolbert’s family
members.
38. There was no probable cause or basis for Defendants to arrest and bring criminal
charges against Dr. Tolbert.
39. The U.S. Attorney’s Office realized the patient-practitioner relationship was
genuine and did not pursue an arrest warrant.
40. The local solicitor’s office, upon reviewing the matter, likewise concluded that an
arrest warrant was not appropriate.
41. Nevertheless, Defendants chose their own path and arrested Dr. Tolbert in violation
of clearly established law.
DHEC Disregarded the Law
42. Not only did Defendants ignore the plethora of evidence showing that Dr. Tolbert
did not engage in any criminal conduct, but they also far exceeded their authority by initiating an
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arrest.
43. Violations of § 44-53-360 of improper dispensing of controlled substances by
persons who are subject to the requirements of § 44-53-360, as Dr. Tolbert is, are generally
“punishable by a civil fine of not more than one thousand dollars” pursuant to S.C. Code Ann. §
44-53-380(b).
44. Defendants cannot arrest an individual for violation of a civil penalty.
45. While a limited exception for criminal charges exists under section 44-53-380(b),
that requires prosecution “by an information or indictment.”
46. A law enforcement officer is specifically prohibited by section 44-53-380(b) from
seeking an arrest warrant because an arrest can only take place after a grand jury has determined
that the defendant acted with knowing and intentional misconduct and issues an indictment or the
defendant has agreed to the prosecution under an information and the prosecutor has filed formal
charges.
47. An arrest warrant without an indictment or an information is per se prohibited under
the statute.
48. The arrest warrant’s sole ground for probable cause is the conclusory statement:
“Probable cause is based upon SC DHEC Bureau of Drug Control investigation.”
49. This single, conclusory sentence does not support probable cause and is thus a clear
violation of Dr. Tolbert’s constitutional right to be free from an unlawful arrest, which constitutes
an unreasonable seizure under the Fourth Amendment.
50. Each of the Defendants violated clearly established laws and were negligent,
reckless, willful, wanton, and grossly negligent in carrying out their duties and responsibilities.
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FIRST CAUSE OF ACTION
(Negligence/Gross Negligence/Recklessness)
51. Plaintiffs incorporate all prior paragraphs as if fully set forth herein.
52. Defendants owed a duty to Dr. Tolbert to follow the law by not wrongfully arresting
her and to conduct a competent investigation.
53. Defendants breached this duty in a grossly negligent manner by:
a. Failing to properly train their employees on the relevant law,
b. failing to develop and implement policies to ensure competent investigations,
c. failing to conduct competent investigations,
d. violating section 44-53-380 by arresting Dr. Tolbert without an information or
indictment,
e. failing to have probable cause in seeking a search warrant,
f. failing to have probable cause in support of the search warrant,
g. failing to have probable cause in seeking an arrest warrant, and
h. failing to have probable cause in support of the arrest warrant.
54. As a direct and proximate result of Defendants’ conduct, Dr. Tolbert was
wrongfully and unlawfully arrested.
55. Dr. Tolbert suffered damages as a result of being arrested to be determined by a
jury.
SECOND CAUSE OF ACTION
(Defamation)
56. Plaintiffs incorporate all prior paragraphs as if fully set forth herein.
57. Defendants arrested Dr. Tolbert based on the false notion that she used Dr. Gentry
to obtain medications for Dr. Tolbert’s husband and children outside of a bona-fide patient-
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practitioner relationship.
58. Defendant Shields procured an arrest warrant based on Dr. Tolbert obtaining certain
medications “outside of a bona fide practitioner-patient relationship,” but Defendant Shields’
statement is false. And Defendant Shields knew or should have known that statement was false.
59. This false statement served as the basis for arresting Dr. Tolbert, which was
publicly disseminated by the media.
60. Defendants knew, or should have known, that arresting a doctor for violating S.C.
Code Ann. § 44-53-370(b)(2) would subject public scrutiny and be widely reported.
61. Upon Dr. Tolbert’s arrest, reporters began calling her small family medicine office,
disrupting her office’s normal work procedures.
62. Dr. Tolbert’s ability to serve her patients and perform her livelihood was
jeopardized, and she was forced to undergo a vigorous review process by the LLR—all of which
never should have occurred had Defendants acted appropriately.
63. Dr. Tolbert’s mug shot was disseminated, including being posted on the front page
of the local newspaper, The Journal, and on their website.
64. Dr. Tolbert was forced to talk about her arrest to her children’s school
administrators so they could monitor the children for any increased stress or behavioral changes.
65. Plaintiffs’ children were bullied at school due to the widespread reporting of Dr.
Tolbert’s arrest through traditional media and social media.
66. By virtue of publicly arresting Dr. Tolbert without legal authority to do so, without
legally sufficient probable cause, and based on false allegations as demonstrated by the dismissal
of all charges, Defendants caused Dr. Tolbert to suffer harm to her reputation and business to for
which she is entitled damages to be determined by a jury.
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THIRD CAUSE OF ACTION
(Violation of 42 U.S.C. § 1983 by Defendant Shields in her individual capacity)
67. Plaintiffs incorporate all prior paragraphs as if fully set forth herein.
68. This claim for damages and other appropriate relief is brought pursuant to 42 U.S.C.
§ 1983 for violations to Dr. Tolbert’s federal civil rights by Defendant Shields, whose actions were
taken under the color of state law.
69. Upon information and belief, Defendant Shields developed and implemented
policies whereby agents of Defendants targeted and arrested doctors without the legal authority to
initiate an arrest under S.C. Code Ann. § 44-53-380(b).
70. Defendant Shields violated Dr. Tolbert’s Fourth Amendment right under the United
States Constitution to be free from an unreasonable seizure by:
a. Developing and implementing policies permitting agents of Defendants to
criminally investigate and arrest doctors in violation of S.C. Code Ann. § 44-
53-380(b),
b. conducting an unlawful criminal investigation of Dr. Tolbert,
c. procuring an arrest warrant that plainly lacked probable cause,
d. initiating a criminal investigation and arrest without legal authority to do so,
and
e. arresting Dr. Tolbert without authority to do so.
71. The unlawful actions described herein were taken in Defendant Shields’ individual
capacity as an agent of DHEC under the color of state law, given her respective public office.
72. Due to the deprivation by Defendant Shields of Dr. Tolbert’s rights and privileges,
Dr. Tolbert is entitled under 42 U.S.C. § 1983 to recover direct, actual, consequential, and punitive
damages as well as attorneys’ fees and costs under 42 U.S.C. § 1988 from Defendant Shields in
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an amount to be determined by a jury.
FOURTH CAUSE OF ACTION
(Loss of Consortium)
73. Plaintiffs incorporate all prior paragraphs as if fully set forth herein.
74. As a result of Defendants’ egregious conduct, including the false allegations, the
illegal seizure and arrest, and defamation with the public dissemination of Dr. Tolbert’s arrest that
ensued, Dr. Tolbert and her husband have suffered an enormous amount of stress.
75. Defendants’ tortious and illegal conduct has caused damages to Mr. Tolbert,
including but not limited to:
a. Dr. Tolbert and her husband have sought counseling as a result of Defendants’
actions and the ensuing public display, all of which were based on false
allegations and resulted from an illegal arrest.
b. Dr. Tolbert and her husband have endured public humiliation, which has caused
depressed moods, extreme distrust, increased insomnia, and other
manifestations.
c. Dr. Tolbert’s illegal arrest made it extremely difficult for her husband, as an
ordained, Baptist minister, to obtain a ministry position or pastorate again.
76. As a result of Defendants’ tortious and illegal conduct, Mr. Tolbert is entitled to
damages in an amount to be determined by a jury.
REQUEST FOR RELIEF
77. Plaintiffs incorporate all prior paragraphs as if fully set forth herein.
78. As a direct and proximate result of the wrongful conduct of Defendants described
above, Plaintiffs request judgment against Defendants for the following:
a. Full compensatory, consequential, and punitive damages in an amount to be
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determined by a jury,
b. attorney’s fees and costs under 42 U.S.C. § 1988,
c. injunctive relief to end the unlawful practices described herein, and
d. any such other relief as the Court deems just and proper.
JURY TRIAL DEMAND
79. A trial by jury is demanded as to all issues to the extent permitted by law.
Respectfully submitted,
s/James H. May
James H. May (S.C. Bar No.: 74278)
Matthew T. Richardson (S.C. Bar No.: 15647)
Brian Critzer (S.C. Bar No.: 103159)
Wyche, P.A.
807 Gervais Street, Suite 301 (29201)
Post Office Box 12247
Columbia, South Carolina 29211
Telephone: 803-254-6542
Facsimile: 803-254-6544
jmay@wyche.com
mrichardson@wyche.com
bcritzer@wyche.com
Attorneys for Plaintiffs
September 28, 2023
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Preview
ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) THIRTEENTH JUDICIAL CIRCUIT COUNTY OF PICKENS ) ) Civil Action No.: 2023-CP-39-______ Alicia L. Tolbert, MD, and Bret Tolbert, ) ) Plaintiffs, ) ) SUMMONS vs. ) (Jury Trial Demanded) ) South Carolina Department of Health and ) Environmental Control; Edward Simmer, in ) his official capacity as Director of the South ) Carolina Department of Health and ) Environmental Control; and Jessica A. ) Shields, in her individual capacity, ) ) Defendants. ) ) TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED and required to answer the Complaint in the above- entitled action, a copy of which is herewith served upon you, and to serve a copy of your answer upon the undersigned at their offices at 807 Gervais Street, Suite 301, Columbia, SC 29201, within thirty (30) days after service hereof upon you, exclusive of the date of service, and if you fail to answer the Complaint within the time, judgment by default will be rendered against you for the relief demanded in the Complaint. [Signature follows] Page 1 of 2 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 Respectfully submitted, s/James H. May James H. May (S.C. Bar No.: 74278) Matthew T. Richardson (S.C. Bar No.: 15647) Brian Critzer (S.C. Bar No.: 103159) Wyche, P.A. 807 Gervais Street, Suite 301 (29201) Post Office Box 12247 Columbia, South Carolina 29211 Telephone: 803-254-6542 Facsimile: 803-254-6544 jmay@wyche.com mrichardson@wyche.com bcritzer@wyche.com Attorneys for Plaintiffs September 28, 2023 Page 2 of 2 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) THIRTEENTH JUDICIAL CIRCUIT COUNTY OF PICKENS ) ) Civil Action No.: 2023-CP-39-______ Alicia L. Tolbert, MD, and Bret Tolbert, ) ) Plaintiffs, ) ) vs. ) COMPLAINT ) (Jury Trial Demanded) South Carolina Department of Health and ) Environmental Control; Edward Simmer, in ) his official capacity as Director of the South ) Carolina Department of Health and ) Environmental Control; and Jessica A. ) Shields, in her individual capacity, ) ) Defendants. ) ) Plaintiffs Alicia L. Tolbert, MD and Bret Tolbert complain of Defendants as set forth herein, would respectfully show unto the Court and jury as follows: 1. This is an action for negligence/gross negligence, defamation, a claim under 42 U.S.C. § 1983, loss of consortium and related damages arising out of the illegal arrest of Dr. Tolbert by Defendants on September 28, 2021. 2. Dr. Tolbert was wrongly accused and illegally arrested for supposedly engaging in a criminal conspiracy to violate the South Carolina Controlled Substances Act. 3. The charges against her were subsequently dismissed, but the damage to Dr. Tolbert was already done. THE PARTIES 4. Plaintiffs are Alicia L. Tolbert, MD (“Dr. Tolbert”) and her husband, Bret Tolbert. 5. Dr. Tolbert and her husband are citizens and residents of South Carolina, residing in Pickens County. 6. Defendant South Carolina Department of Health and Environmental Control Page 1 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 (“DHEC”) is an agency of the State of South Carolina subject to suit under S.C. Code Ann. § 15- 78-10 et seq. who, among other things, is responsible for issuing, suspending, revoking, denying, inspecting, regulating, enforcing, investigating and/or monitoring the licensure of health care providers, in order to promote the health, safety and well-being of the public. 7. Defendant Simmer is the Director of DHEC. 8. The Bureau of Drug Control (“Bureau”) is the organization within DHEC that is responsible for administering the South Carolina prescription monitoring program. 9. Defendant Jessica A. Shields is an agent for the Bureau. 10. Defendants DHEC, Defendant Simmer, and Defendant Shields are the “Defendants.” JURISDICTION, VENUE, AND PROCEDURAL BACKGROUND 11. The events giving rise to this action occurred in Pickens County. 12. The Court has jurisdiction over the parties and subject matter of this action, and venue is proper in Pickens County. 13. This Court has jurisdiction under Article V, §11 of the South Carolina Constitution, South Carolina Code Annotated § 14-1-80, and the Common Law of South Carolina. 14. Venue is proper in Pickens County under South Carolina Code Annotated § 15-7- 30. STATEMENT OF THE FACTS 15. Dr. Tolbert is a medical doctor practicing in Pickens County, South Carolina. 16. Dr. Tolbert’s husband and two minor children received medical care and treatment from Warren Gentry, MD (“Dr. Gentry”). 17. Dr. Tolbert’s husband and two children required certain medication, which was Page 2 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 legally prescribed by Dr. Gentry, who was their family physician at the relevant times and had been for many years. 18. Defendant DHEC, through its Bureau of Drug Control and specifically through Defendant Shields, initiated an investigation into a series of prescriptions written by Dr. Gentry in 2019 and 2020 for medication prescribed to Dr. Tolbert’s husband and two minor children. 19. Upon information and belief, Defendant Shields developed and implemented the policies that focused on targeting doctors with criminal investigations and illegal arrests for alleged violations of laws pertaining to controlled substances. 20. Upon information and belief, Defendant Shields contributed to the implementation of policies whereby Defendants and agents of Defendants arrested doctors in a manner that violated the law. 21. On September 21, 2021, Defendant Shields applied for a warrant for Dr. Tolbert’s arrest alleging that, on or about September 8, 2019, through October 17, 2020, Dr. Tolbert conspired with Dr. Gentry to “possess a quantity of methylphenidate outside of a bona fide practitioner-patient relationship” in violation of S.C. Code Ann. § 44-53-370(b)(2). 22. Defendant Shields represented that probable cause for the warrant was “based on SC DHEC Bureau of Drug Control investigation.” 23. Defendant Shields also procured an unlawful arrest warrant, and Dr. Tolbert was arrested on September 28, 2021. 24. Defendant Shields procured an arrest warrant for Dr. Tolbert despite the fact that DHEC had no authority to arrest an individual under S.C. Code Ann. § 44-53-380 because subsection (b) requires prosecution “by an information or indictment.” 25. A law enforcement officer is specifically prohibited by this statute from issuing an Page 3 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 arrest warrant because an arrest can only take place after a grand jury has determined that the defendant acted with knowing and intentional misconduct and issues an indictment or the defendant has agreed to the prosecution under an information and the prosecutor has filed formal charges. Neither an indictment nor an information was procured for Dr. Tolbert’s arrest, and Defendants are not law enforcement officers. 26. An arrest warrant without an indictment or an information is per se prohibited under the statute. 27. Dr. Tolbert’s arrest was publicly disseminated, disparaging her excellent reputation within the profession and community and with patients and potential patients. 28. As an additional result, Dr. Tolbert needlessly endured an investigation by the South Carolina Department of Labor, Licensing and Regulation (“LLR”). 29. The State dismissed all charges against Dr. Tolbert because she committed no wrongdoing and because Defendants did not have probable cause or the authority to arrest her. DHEC Failed to Conduct a Competent Investigation 30. Dr. Tolbert was arrested on three charges of conspiracy with regard to the Schedule II Controlled Substance methylphenidate, the generic name of Concerta. 31. The arrest resulted from allegations that Dr. Gentry was treating Dr. Tolbert’s husband and two minor children outside of a “bona fide patient-practitioner relationship.” 32. There were no allegations that Dr. Tolbert wrote any prescriptions unlawfully, nor were there allegations that the medicine prescribed by Dr. Gentry was diverted for improper reasons. 33. The records established that Dr. Tolbert’s husband and two minor children required the medication prescribed to them, dating back over fifteen years when Dr. Gentry began treating Page 4 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 Dr. Tolbert’s family. 34. As their family physician, Dr. Tolbert’s family members made routine visits to Dr. Gentry, and Dr. Gentry prescribed them various medications throughout their treatment, including, but not limited to, methylphenidate. 35. Dr. Tolbert’s family members used the medication as directed. 36. Defendants based their charges against Drs. Tolbert and Gentry by alleging that a “bona-fide patient practitioner relationship” did not exist between Dr. Gentry and Dr. Tolbert’s husband and children. 37. Dr. Gentry exercised his own judgment based on his comprehensive medical knowledge of his patients when he signed his name for prescriptions for established medical needs of three individuals whom he knew and cared for, and who happened to be Dr. Tolbert’s family members. 38. There was no probable cause or basis for Defendants to arrest and bring criminal charges against Dr. Tolbert. 39. The U.S. Attorney’s Office realized the patient-practitioner relationship was genuine and did not pursue an arrest warrant. 40. The local solicitor’s office, upon reviewing the matter, likewise concluded that an arrest warrant was not appropriate. 41. Nevertheless, Defendants chose their own path and arrested Dr. Tolbert in violation of clearly established law. DHEC Disregarded the Law 42. Not only did Defendants ignore the plethora of evidence showing that Dr. Tolbert did not engage in any criminal conduct, but they also far exceeded their authority by initiating an Page 5 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 arrest. 43. Violations of § 44-53-360 of improper dispensing of controlled substances by persons who are subject to the requirements of § 44-53-360, as Dr. Tolbert is, are generally “punishable by a civil fine of not more than one thousand dollars” pursuant to S.C. Code Ann. § 44-53-380(b). 44. Defendants cannot arrest an individual for violation of a civil penalty. 45. While a limited exception for criminal charges exists under section 44-53-380(b), that requires prosecution “by an information or indictment.” 46. A law enforcement officer is specifically prohibited by section 44-53-380(b) from seeking an arrest warrant because an arrest can only take place after a grand jury has determined that the defendant acted with knowing and intentional misconduct and issues an indictment or the defendant has agreed to the prosecution under an information and the prosecutor has filed formal charges. 47. An arrest warrant without an indictment or an information is per se prohibited under the statute. 48. The arrest warrant’s sole ground for probable cause is the conclusory statement: “Probable cause is based upon SC DHEC Bureau of Drug Control investigation.” 49. This single, conclusory sentence does not support probable cause and is thus a clear violation of Dr. Tolbert’s constitutional right to be free from an unlawful arrest, which constitutes an unreasonable seizure under the Fourth Amendment. 50. Each of the Defendants violated clearly established laws and were negligent, reckless, willful, wanton, and grossly negligent in carrying out their duties and responsibilities. Page 6 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 FIRST CAUSE OF ACTION (Negligence/Gross Negligence/Recklessness) 51. Plaintiffs incorporate all prior paragraphs as if fully set forth herein. 52. Defendants owed a duty to Dr. Tolbert to follow the law by not wrongfully arresting her and to conduct a competent investigation. 53. Defendants breached this duty in a grossly negligent manner by: a. Failing to properly train their employees on the relevant law, b. failing to develop and implement policies to ensure competent investigations, c. failing to conduct competent investigations, d. violating section 44-53-380 by arresting Dr. Tolbert without an information or indictment, e. failing to have probable cause in seeking a search warrant, f. failing to have probable cause in support of the search warrant, g. failing to have probable cause in seeking an arrest warrant, and h. failing to have probable cause in support of the arrest warrant. 54. As a direct and proximate result of Defendants’ conduct, Dr. Tolbert was wrongfully and unlawfully arrested. 55. Dr. Tolbert suffered damages as a result of being arrested to be determined by a jury. SECOND CAUSE OF ACTION (Defamation) 56. Plaintiffs incorporate all prior paragraphs as if fully set forth herein. 57. Defendants arrested Dr. Tolbert based on the false notion that she used Dr. Gentry to obtain medications for Dr. Tolbert’s husband and children outside of a bona-fide patient- Page 7 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 practitioner relationship. 58. Defendant Shields procured an arrest warrant based on Dr. Tolbert obtaining certain medications “outside of a bona fide practitioner-patient relationship,” but Defendant Shields’ statement is false. And Defendant Shields knew or should have known that statement was false. 59. This false statement served as the basis for arresting Dr. Tolbert, which was publicly disseminated by the media. 60. Defendants knew, or should have known, that arresting a doctor for violating S.C. Code Ann. § 44-53-370(b)(2) would subject public scrutiny and be widely reported. 61. Upon Dr. Tolbert’s arrest, reporters began calling her small family medicine office, disrupting her office’s normal work procedures. 62. Dr. Tolbert’s ability to serve her patients and perform her livelihood was jeopardized, and she was forced to undergo a vigorous review process by the LLR—all of which never should have occurred had Defendants acted appropriately. 63. Dr. Tolbert’s mug shot was disseminated, including being posted on the front page of the local newspaper, The Journal, and on their website. 64. Dr. Tolbert was forced to talk about her arrest to her children’s school administrators so they could monitor the children for any increased stress or behavioral changes. 65. Plaintiffs’ children were bullied at school due to the widespread reporting of Dr. Tolbert’s arrest through traditional media and social media. 66. By virtue of publicly arresting Dr. Tolbert without legal authority to do so, without legally sufficient probable cause, and based on false allegations as demonstrated by the dismissal of all charges, Defendants caused Dr. Tolbert to suffer harm to her reputation and business to for which she is entitled damages to be determined by a jury. Page 8 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 THIRD CAUSE OF ACTION (Violation of 42 U.S.C. § 1983 by Defendant Shields in her individual capacity) 67. Plaintiffs incorporate all prior paragraphs as if fully set forth herein. 68. This claim for damages and other appropriate relief is brought pursuant to 42 U.S.C. § 1983 for violations to Dr. Tolbert’s federal civil rights by Defendant Shields, whose actions were taken under the color of state law. 69. Upon information and belief, Defendant Shields developed and implemented policies whereby agents of Defendants targeted and arrested doctors without the legal authority to initiate an arrest under S.C. Code Ann. § 44-53-380(b). 70. Defendant Shields violated Dr. Tolbert’s Fourth Amendment right under the United States Constitution to be free from an unreasonable seizure by: a. Developing and implementing policies permitting agents of Defendants to criminally investigate and arrest doctors in violation of S.C. Code Ann. § 44- 53-380(b), b. conducting an unlawful criminal investigation of Dr. Tolbert, c. procuring an arrest warrant that plainly lacked probable cause, d. initiating a criminal investigation and arrest without legal authority to do so, and e. arresting Dr. Tolbert without authority to do so. 71. The unlawful actions described herein were taken in Defendant Shields’ individual capacity as an agent of DHEC under the color of state law, given her respective public office. 72. Due to the deprivation by Defendant Shields of Dr. Tolbert’s rights and privileges, Dr. Tolbert is entitled under 42 U.S.C. § 1983 to recover direct, actual, consequential, and punitive damages as well as attorneys’ fees and costs under 42 U.S.C. § 1988 from Defendant Shields in Page 9 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 an amount to be determined by a jury. FOURTH CAUSE OF ACTION (Loss of Consortium) 73. Plaintiffs incorporate all prior paragraphs as if fully set forth herein. 74. As a result of Defendants’ egregious conduct, including the false allegations, the illegal seizure and arrest, and defamation with the public dissemination of Dr. Tolbert’s arrest that ensued, Dr. Tolbert and her husband have suffered an enormous amount of stress. 75. Defendants’ tortious and illegal conduct has caused damages to Mr. Tolbert, including but not limited to: a. Dr. Tolbert and her husband have sought counseling as a result of Defendants’ actions and the ensuing public display, all of which were based on false allegations and resulted from an illegal arrest. b. Dr. Tolbert and her husband have endured public humiliation, which has caused depressed moods, extreme distrust, increased insomnia, and other manifestations. c. Dr. Tolbert’s illegal arrest made it extremely difficult for her husband, as an ordained, Baptist minister, to obtain a ministry position or pastorate again. 76. As a result of Defendants’ tortious and illegal conduct, Mr. Tolbert is entitled to damages in an amount to be determined by a jury. REQUEST FOR RELIEF 77. Plaintiffs incorporate all prior paragraphs as if fully set forth herein. 78. As a direct and proximate result of the wrongful conduct of Defendants described above, Plaintiffs request judgment against Defendants for the following: a. Full compensatory, consequential, and punitive damages in an amount to be Page 10 of 11 ELECTRONICALLY FILED - 2023 Sep 28 2:36 PM - PICKENS - COMMON PLEAS - CASE#2023CP3901066 determined by a jury, b. attorney’s fees and costs under 42 U.S.C. § 1988, c. injunctive relief to end the unlawful practices described herein, and d. any such other relief as the Court deems just and proper. JURY TRIAL DEMAND 79. A trial by jury is demanded as to all issues to the extent permitted by law. Respectfully submitted, s/James H. May James H. May (S.C. Bar No.: 74278) Matthew T. Richardson (S.C. Bar No.: 15647) Brian Critzer (S.C. Bar No.: 103159) Wyche, P.A. 807 Gervais Street, Suite 301 (29201) Post Office Box 12247 Columbia, South Carolina 29211 Telephone: 803-254-6542 Facsimile: 803-254-6544 jmay@wyche.com mrichardson@wyche.com bcritzer@wyche.com Attorneys for Plaintiffs September 28, 2023 Page 11 of 11