Opinion
C. A. 9:22-cv-04198-SAL-MHC
03-18-2024
Gregg Marcel Dixon, Plaintiffs, v. Royal Live Oaks Academy of the Arts & Sciences Charter School, Karen Wicks, Charter Institute at Erskine, Steven Adamson, Martin O'Connor, Stu Rodman, Tony Foster, Gordon Query, Noel Brownlee, Todd Carnes, James E. Clyburn, and Jennifer Clyburn Reed, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff, proceeding pro se, initiated this employment discrimination action alleging that he was wrongfully terminated from his teaching position at Royal Live Oaks Academy of the Arts & Sciences Charter School (“Academy”). ECF No. 1. Plaintiff amended his Complaint once as a matter of course after a Motion to Dismiss was filed. See ECF Nos. 12, and 33, 34. In his Amended Complaint, Plaintiff asserted claims against the original Defendants and against newly-named Defendants James E. Clyburn and Jennifer Clyburn Reed. ECF No. 34. After all Defendants moved to dismiss the Amended Complaint, see ECF Nos. 31 and 47, Plaintiff filed a Second Amended Complaint, with leave of the Court. ECF Nos. 64, 65.
Before this Court are the following motions: a Motion to Dismiss the Second Amended Complaint and Strike Certain Portions of Plaintiff's Claims, filed by Defendants Academy and Karen Wicks, ECF No. 72; a Motion to Dismiss for Failure to State a Claim, filed by Defendants Clyburn and Reed, ECF No. 73; and a Motion to Dismiss, filed by Defendants Steven Adamson, Noel Brownlee, Todd Carnes, Charter Institute at Erskine, Tony Foster, Martin O'Connor, Gordon Query, and Stu Rodman (collectively, the “CIE Defendants”), ECF No. 74.
As Plaintiff is proceeding pro se, the Court entered a Roseboro Order, which was mailed to Plaintiff, advising him of the importance of a dispositive motion and of the need to file an adequate response. ECF Nos. 75, 76. Plaintiff was specifically advised that if he failed to file a properly supported response, Defendants' Motions may be granted, thereby ending his case. ECF No. 75. Thereafter, Plaintiff filed Responses in Opposition to each Motion. ECF Nos. 84, 85, and 86. The Motions to Dismiss are ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2), D.S.C. This Report and Recommendation is entered for review by the District Judge.
THE ALLEGATIONS IN THE COMPLAINT
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendants' Motions to Dismiss. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
Plaintiff, Gregg Marcel Dixon, is an “experienced, award-winning, African American elementary and middle school teacher, coach, mentor, and administrator” who worked for seven years within the Jasper County School District and then at Defendant Academy from June 2012 until June 2022. ECF No. 65 at ¶¶ 2, 16, 17. Plaintiff received bonuses based on student performance from 2012 to 2018 and again in 2021 and 2022. Id. at ¶ 17.
Plaintiff formed the “Committee to Elect Gregg Dixon” with the South Carolina Secretary of State, which was approved by the state on August 6, 2021. Id. at ¶ 18. On March 16, 2022, Plaintiff filed the requisite Democratic Party forms indicating that he intended to run for the congressional seat held by Defendant James Clyburn in the 6th Congressional District. Id. at ¶ 19.
Plaintiff launched a vigorous campaign and appeared on the ballot for the Democratic Primary Election held in June 2022. Id. at ¶¶ 20, 53.
A. Defendants Clyburn and Reed
In 2022, Defendant Clyburn was a candidate for, and won, re-election to the U.S. Congress for the 6th Congressional District of South Carolina. Id. at ¶ 26. Plaintiff brings this action against Defendant Clyburn in his individual capacity and in his official capacity as a Member of the United States Congress. Id. at ¶ 27.
Defendant Jennifer Clyburn Reed is Defendant Clyburn's daughter and a campaign advisor to Defendant Clyburn. Id. at ¶¶ 28-29. She is being sued in her individual capacity and in her official capacity as Federal Co-Chair of the Southeast Crescent Regional Commission. Id. at ¶ 31. Plaintiff alleges that during April 2022, Defendant Reed “began a campaign to discredit plaintiff on social media.” Id. at ¶ 49. He further asserts that at a public forum held on May 10, 2022, Defendant Reed “attacked plaintiff for his political beliefs and challenge to her father's candidacy.” Id. at ¶ 51.
Plaintiff alleges that in April 2022, Defendant Clyburn “moved publicly to discredit plaintiff as a credible candidate for the U.S. Congress and how he, as a Congressman, will bring funding for projects like a new Beaufort-Jasper YMCA of the Low Country facility.” Id. at ¶ 50.
Plaintiff also alleges that Defendant Clyburn “created, maintained[,] operated and controlled two verified Twitter accounts that he used to feature his job and communicate about job-related matters with the public, but was not doing so pursuant to any governmental authority or duty.” Id. at ¶ 56 (footnote omitted). As of September 5, 2023, Defendant Clyburn had approximately 189,200 followers on Twitter. Id. at ¶ 58. According to Plaintiff, “Twitter is a ‘social media platform' consisting of an online community to facilitate people, businesses, government officials, government agencies and other institutions finding and forming an exchange of different content.” Id. at ¶ 60; see id. at ¶¶ 61-66 (further explaining how Twitter works). Plaintiff alleges that Defendant Clyburn “prolifically uses his [T]witter accounts to feature his job-related work as a government official and communicate about government policy, programs and opportunity for his constituent[s] and not doing so pursuant to any governmental authority or duty.” Id. at ¶ 68. He alleges that Defendant Clyburn's Twitter accounts constitute “a traditional public forum.” Id. at ¶ 69.
Plaintiff alleges that he has been a Twitter account holder since 2011 and currently has two accounts. Id. at ¶ 70. He “has openly and notoriously posted critical comments about the policies, political positions, funding priorities, and other job-related matters of” Defendant Clyburn. Id. at ¶ 71. He alleges, upon information and belief, that sometime in May 2022, Defendant Clyburn “blocked and muted plaintiff from having access or posting on his Twitter accounts, including the deletion of comments posted by plaintiff and allowing comments posted by plaintiff from appearing on the Twitter accounts in comments or reposted comments by other Twitter users.” Id. at ¶ 73. Plaintiff further alleges that as of September 2023, he continues to be blocked and muted from access and posting on Defendant Clyburn's Twitter accounts. Id. at ¶ 74.
B. Defendant Academy, Defendant Wicks, and the CIE Defendants
Defendant Academy is a public charter school duly organized and existing under the law of the State of South Carolina and managed and overseen by Defendant Charter Institute at Erskine (“CIE”). Id. at ¶ 21. Defendant Karen Wicks is the Executive Director of Defendant Academy. Id. at ¶ 22.
Defendant CIE, based in Columbia, South Carolina, is an organization duly authorized by the State of South Carolina to assemble, manage, oversee, and operate public charter schools and is the entity responsible for the ongoing operations of Defendant Academy, including the hiring and firing of teachers and staff. Id. at ¶ 32.
At all times relevant to this action, Defendants Steven Adamson, Martin O'Conner, Stu Rodman, Tony Foster, Gordon Query, Noel Brownlee, and Todd Carnes were Members of the Board of Directors of Defendant CIE, “with non-delegable duties to oversee and manage the operations of” Defendant Academy. Id. at ¶¶ 33-39.
Plaintiff alleges that he was a successful teacher, coach, mentor, and administrator for more than a decade at Defendant Academy “with nearly automatic annual renewal contracts up until on or about May 12, 2022.” Id. at ¶ 40. On May 12, 2022, Defendant Wicks informed Plaintiff that his contract would not be renewed for the 2022-2023 academic year because of “his insubordinate behavior and less than satisfactory relationships with students and parents.” Id. at ¶ 41. Plaintiff asserts that at that meeting, Defendant Wicks “called into question his political activity and plaintiff being an angry Black man who had the audacity to challenge the politically influential” Defendant Clyburn. Id. at ¶ 52. Plaintiff alleges that “Defendants admonished plaintiff for being ‘Too Black' and called for him to reduce the appearance of what they believed were his racial and ethnic characteristics and political speech that alienated him from some students, parents and staff.” Id. at ¶ 42.
Plaintiff alleges that the cited reasons for the non-renewal of his contract-insubordinate behavior and less than satisfactory relationships with students and parents-were pretext for racial animus and retaliation for his political challenge to Defendant Clyburn. Id. at ¶¶ 44, 54-55. According to Plaintiff, he obtained high performance ratings from students who participated in online in-school surveys, consistently receiving approval ratings of between 75% to 95% throughout his career at Defendant Academy, while Defendant Wick's ratings averaged between 16% and 25%. Id. at ¶ 45. He also received a “vast number of messages of support from parents of students.” Id. at ¶ 46.
Plaintiff alleges that in July 2021, “after discovering that plaintiff intended to engage in political activity, defendants, jointly and collectively, cautioned plaintiff that if he chooses to engage in political activity, specifically, if he ch[o]se to run for the Democratic Congressional seat held by [Defendant Clyburn], it would cost him his job.” Id. at ¶ 47. Plaintiff also alleges that Defendant Wicks, with the approval of the CIE Defendants, held a meeting with Plaintiff in August 2022 and accused him of being unpatriotic and disloyal to American because he was an angry Black man. Id. at ¶ 48.
LEGAL STANDARD
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, principles requiring generous construction of pro se complaints do “not require courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Giving liberal construction does not mean that the court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (“Only those questions which are squarely presented to a court may properly be addressed.”). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle, 429 U.S. at 106-07.
DISCUSSION
In his Second Amended Complaint, Plaintiff asserts the following seven causes of action: (1) a claim against all Defendants for race discrimination in violation of 42 U.S.C. §§ 1981, 2000(a); (2) a claim against all Defendants for retaliation in violation of 42 U.S.C. §§ 1981, 2000(a); (3) a claim pursuant to 42 U.S.C. § 1983 against all Defendants for violation of his First Amendment rights; (4) a claim against Defendants Academy and CIE for race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”); (5) a claim against all Defendants for conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985; (6) a claim against all Defendants for failure to act in violation of 42 U.S.C. § 1986; and (7) a claim pursuant to 42 U.S.C. § 1983 against Defendant Clyburn for violation of Plaintiff's First Amendment right to free speech. ECF No. 65 at 22-29.
Defendants move to dismiss all of Plaintiff's claims. ECF Nos. 72, 73, 74. The undersigned will address each claim in turn.
I. Race Discrimination in Violation of 42 U.S.C. §§ 1981 & 2000a
In Count One of his Second Amended Complaint, asserted against all Defendants, Plaintiff alleges “that defendants discriminated against him because of his race, relative to his rights to be free from racial discrimination in the making of contracts for employment in violation of 42 U.S.C. § 1981 and enjoying the full benefit of all laws as is enjoyed by white citizens.” ECF No. 65 at ¶ 76.
A. Plaintiff has failed to state a viable claim under 42 U.S.C. § 2000a.
Plaintiff has failed to state a claim against any of the Defendants for violation of 42 U.S.C. § 2000a. Section 2000a, also known as “Title II,” prohibits “discrimination or segregation on the ground of race, color, religion, or national origin” with respect to “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.” 42 U.S.C. § 2000a(a). The statute defines “place of public accommodation” as “[e]stablishments affecting interstate commerce or supported in their activities by State action,” including but not limited to lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, and places of exhibition or entertainment. Id. at § 2000a(b) (specifically listing the following as places of public accommodation: inn, hotel, motel, restaurant, cafeteria, lunchroom, lunch counter, soda fountain, gas station, motion picture house, theater, concert hall, sports arena, and stadium).
The “overriding purpose of Title II” is to remove “the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.” Daniel v. Paul, 395 U.S. 298, 307-308 (1969) (citation omitted). A Title II suit is “private in form only,” and a plaintiff pursuing a Title II claim cannot recover damages. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02 (1968) (“When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law.... If [plaintiff] obtains an injunction, he does so not for himself alone but also as a ‘private attorney general,' vindicating a policy that Congress considered of the highest priority.”).
1. This claim should be dismissed as against Defendants Clyburn and Reed.
Plaintiff has failed to state a claim against Defendants Clyburn and Reed for violation of 42 U.S.C. § 2000a, as he has not alleged that they operate any public place of accommodation, nor are they alleged to have denied Plaintiff services at any such establishment. See 42 U.S.C. § 2000a(b). Moreover, Plaintiff's claim is subject to dismissal as it seeks only damages. See Newman, 390 U.S. at 401-02. Thus, this claim should be dismissed as against Defendants Clyburn and Reed.
2. This claim should be dismissed as against the remaining Defendants.
The remaining Defendants argue that the § 2000a claim should be dismissed because Plaintiff does not allege that any discrimination occurred at a place of accommodation covered by Title II and because he seeks monetary damages, which are not recoverable under Title II. ECF No. 72-1 at 18-19; ECF No. 74 at 5 (adopting arguments made in ECF No. 72). Upon review, the undersigned agrees.
As an initial matter, Plaintiff does not seek injunctive relief but rather seeks only monetary damages. See ECF No. 65 at ¶¶ 78-79 (Count One seeking “compensatory, consequential, actual, and punitive damages, as well as costs and attorney fees”); id. at 29 (not listing injunctive relief in the Prayer for Relief). The undersigned agrees with Defendants that Plaintiff may not recover damages for violation of Title II. See Newman, 390 U.S. at 401-02. “Because [Plaintiff] asks for monetary damages only, [he] has failed to state a claim for relief under 42 U.S.C. § 2000a.” Ajuluchuku v. Bank of Am. Corp., No. 3:06-CV-122, 2007 WL 952015, at *2 (W.D. N.C. Mar. 27, 2007).
Moreover, courts have found that schools are not places of public accommodation covered by Title II. See, e.g., Deberry v. Davis, No. 1:08CV582, 2009 WL 3228061, at *3 (M.D. N.C. Sept. 30, 2009) (finding that 42 U.S.C. § 2000a does not apply to schools and explaining that while “section (b) of this statute contains a comprehensive list of establishments which are considered ‘places of public accommodation[,] [s]chools, be they public or private, are conspicuously absent from this list”); Gilmore v. Amityville Union Free Sch. Dist., 305 F.Supp.2d 271, 278-79 (E.D.N.Y. 2004) (dismissing § 2000a claim asserted against public school district upon finding that public schools are not places of public accommodation); Harless by Harless v. Darr, 937 F.Supp. 1351, 1354 (S.D. Ind. 1996) (finding that “schools were not ‘public accommodations' within the meaning of Title II of the Civil Rights Act of 1964” and explaining that “[p]ublic schools do not purport to be open to the general public in the ways that, for example, hotels, restaurants, and movie theaters (all establishments explicitly covered by Title II) do”). Because Plaintiff's § 2000a claim is based on discrimination allegedly occurring at a public school, his claim “cannot survive Defendants' motion[s] to dismiss.” See Deberry, 2009 WL 3228061, at *3.
B. Plaintiff's race discrimination claim under 42 U.S.C. § 1981.
“Section 1981 guarantees to all persons in the United States ‘the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.'” Spriggs v. Diamond Auto. Glass, 165 F.3d 1015, 1017 (4th Cir. 1999) (quoting 42 U.S.C. § 1981(a)). Section 1981 defines “make and enforce contracts” as including the “making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
To succeed on a § 1981 claim, “a plaintiff must ultimately establish both that the defendant intended to discriminate on the basis of race, and that the discrimination interfered with a contractual interest.” Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. 2006). A plaintiff must also show that the interference with a contractual interest would not have happened but for the plaintiff's race. Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. ---, 140 S.Ct. 1009, 1019 (2020). “Thus, to survive a motion to dismiss, a plaintiff must allege facts that, if accepted as true, allow the court to draw a reasonable inference as to” the following three elements: that (1) the defendant intended to discriminate on the basis of race, (2) the discrimination interfered with a contractual interest, and (3) the interference with a contractual interest would not have happened but for the plaintiff's race. Nadendla v. WakeMed, 24 F.4th 299, 305-06 (4th Cir. 2022); see Comcast Corp., 140 S.Ct. at 1019 (“To prevail, a plaintiff must initially plead and ultimately prove that, but for race, [the plaintiff] would not have suffered the loss of a legally protected right.”) (emphasis added); Resendiz v. Exxon Mobil Corp., 72 F.4th 623, 628 (4th Cir. 2023).
1. This claim should be dismissed as against Defendants Clyburn and Reed.
Plaintiff has failed to state a § 1981 claim against Defendants Clyburn and Reed. Plaintiff alleges that he was discriminated against based on his race in the making of his employment contract. He does not allege any facts showing that either Defendant Clyburn or Defendant Reed was his employer or that they had any control over his employment. The only factual allegations about these Defendants in the Second Amended Complaint relate to the 2022 campaign and Twitter, none of which imply any racially discriminatory conduct or animus. Accordingly, the undersigned recommends that Count One be dismissed as against Defendants Clyburn and Reed.
2. This claim should be dismissed as against the CIE Defendants.
The CIE Defendants argue that Plaintiff “offers no facts from which one could conclude that CIE, rather than or in addition to Royal Live Oaks Academy, was his employer or otherwise had any involvement in any adverse action alleged in the Second Amended Complaint.” ECF No. 74 at 4. They contend that Plaintiff “simply identifies CIE and its board members in their official capacities and makes the entirely conclusory allegations that they either approved of or failed to prevent his actual employer and immediate supervisor from discriminating and retaliating against him,” which is insufficient to survive a motion to dismiss under the Iqbal/Twombly standard. Id. In his Response, Plaintiff generally contends that the Second Amended Complaint's allegations are sufficient to satisfy the Iqbal/Twombly standard. ECF No. 89-2 at 3.
Upon review, the undersigned is constrained to agree with the CIE Defendants. A claim is “plausible” when the plaintiff pleads facts sufficient to allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Twombly, 550 U.S. at 556. The court should grant a motion to dismiss, however, where the allegations are nothing more than legal conclusions or recitations of the elements, or where they permit a court to infer no more than a possibility of misconduct. Iqbal, 556 U.S. at 678-79.
Here, Plaintiff's conclusory allegations regarding CIE and its board members are not sufficient to permit a reasonable inference that any of the CIE Defendants intended to discriminate against Plaintiff on the basis of race, that any such discrimination interfered with a contractual interest, or that the interference with a contractual interest would not have happened but for Plaintiff's race. See Comcast Corp., 140 S.Ct. at 1019; Denny, 456 F.3d at 434. Because Plaintiff has not alleged sufficient factual detail that, if accepted as true, would allow this court to draw a reasonable inference in his favor as to each element of a § 1981 claim against the CIE Defendants, that claim should be dismissed. See Nadendla, 24 F.4th at 305-06 (affirming dismissal and explaining that because the plaintiff's “allegations do not provide sufficient detail to create a plausible inference that [the defendant's] actions were because of [the plaintiff's] race, she has failed to plausibly state a claim under § 1981”).
3. Plaintiff has stated a § 1981 discrimination claim against Defendants Academy and Wicks.
Defendants Academy and Wicks seek dismissal of Count One's § 1981 claim, arguing that Plaintiff's Second Amended Complaint does not include sufficient facts to establish entitlement to relief. ECF No. 72 at 3. Specifically, they argue that Plaintiff alleges multiple reasons for his termination, including “for being Too Black”; “for engaging in a protected activity including running for public office and filing an EEOC complaint”; and “invidious racial discrimination,” such that race cannot be the but-for cause of his termination. ECF No. 72-1 at 14 (citing ECF No. 65 at ¶¶ 42, 54).
Upon review, the undersigned finds that Plaintiff has alleged sufficient facts that, if true, allow the court to reasonably infer that all three elements of his § 1981 claim against Defendants Academy and Wicks have been met. Specifically, Plaintiff alleges that Defendant Wicks informed Plaintiff, on May 12, 2022, that his contract would not be renewed for the 2022-2023 academic year because of “his insubordinate behavior and less than satisfactory relationships with students and parents.” ECF No. 65 at ¶ 41. Plaintiff asserts that at that meeting, Defendant Wicks called Plaintiff “an angry Black man,” Id. at ¶ 52, and he claims she “admonished plaintiff for being ‘Too Black' and called for him to reduce the appearance of what they believed were his racial and ethnic characteristics and political speech that alienated him from some students, parents and staff.” Id. at ¶ 42. Plaintiff also alleges that the cited reasons for the non-renewal of his contract- insubordinate behavior and less than satisfactory relationships with students and parents-were pretext for racial animus and retaliation for his political challenge to Defendant Clyburn. Id. at ¶¶ 44-46, 54-55.
The undersigned finds that the alleged statements by Defendant Wicks regarding Plaintiff's race permit a reasonable inference that Defendant Wicks intended to discriminate against Plaintiff on the basis of race. Moreover, the fact that Defendant Wicks allegedly made these statements when she informed Plaintiff that his contract was not being renewed supports inferences that this discrimination interfered with Plaintiff's contractual interest and that the interference would not have happened but for Plaintiff's race. Finally, Plaintiff alleges that at the time of this meeting, Defendant Wicks was the Executive Director of Defendant Academy, which supports an inference that Defendant Wicks's conduct is imputable to Defendant Academy. See ECF No. 65 at ¶ 22.
It may be that, after discovery, Plaintiff ultimately will not be able to prove that his race was a but-for cause of the decision not to renew his contract. However, at this stage of the litigation, the undersigned finds Plaintiff's factual allegations sufficient to plead that but for race, he would not have suffered the loss of his employment contract. See Comcast Corp., 140 S.Ct. at 1019 (“To prevail, a plaintiff must initially plead and ultimately prove that, but for race, [the plaintiff] would not have suffered the loss of a legally protected right.”).
II. Retaliation in Violation of 42 U.S.C. §§ 1981 & 2000(a)
In Count Two of his Second Amended Complaint, Plaintiff alleges that he was retaliated against by Defendants, in violation of 42 U.S.C. §§ 1981 & 2000(a), “because of his race and for engaging in a protected activity as provided under the First Amendment to the U.S. Constitution, running for public office and filing an EEOC complaint and enjoying the full benefit of all laws as is enjoyed by white citizens.” ECF No. 65 at ¶ 81.
A. This claim should be dismissed as against Defendants Clyburn and Reed.
Plaintiff's second cause of action cites the same statutory provisions as the first and fails as against Defendants Clyburn and Reed for the same reasons set forth above in Sections I.A.1 and I.B.1. Plaintiff does not allege why or how these Defendants could have affected his employment, much less for a racially discriminatory purpose. Plaintiff also does not explain what interest these Defendants could have in his filing of an EEOC complaint against his employer. Therefore, the undersigned recommends that Count Two be dismissed as against Defendants Clyburn and Reed.
B. This claim should be dismissed as against the remaining Defendants.
To the extent Plaintiff's second cause of action is premised on a violation of § 2000a, it should be dismissed as against Defendants Academy, Wicks, and the CIE Defendants for the same reasons set forth above in Section I.A.2.
The undersigned further finds that Plaintiff has failed to state a viable claim against these Defendants for retaliation under 42 U.S.C. § 1981.
Section 1981 “encompasses retaliation claims” for opposing race discrimination in employment. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 (2008). “An employee opposes race discrimination when [he] ‘communicates to [his] employer a belief that the employer has engaged in' such discrimination.” Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 172 (4th Cir. 2020), as amended (Oct. 16, 2020) (quoting Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009)). To state a § 1981 retaliation claim, “a plaintiff must allege facts rendering it plausible that, but for [his] participation in protected activity, []he would not have suffered a materially adverse action.” Ali, 832 Fed.Appx. at 172-73 (citing Comcast Corp., 140 S.Ct. at 1019; Guessous v. Fairview Property Investments, LLC, 828 F.3d 208, 21718 (4th Cir. 2016)); see also Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (explaining that a prima facie retaliation claim under 42 U.S.C. § 1981 has the following three elements: “(1) that [plaintiff] engaged in a protected activity,” as well as “(2) that [his] employer took an adverse employment action against [him],” and “(3) that there was a causal link between the two events”).
Here, Plaintiff does not allege any facts supporting an inference that he opposed race discrimination in employment or that but for this opposition, his contract would not have been renewed. Accordingly, the undersigned finds that Plaintiff has failed to state a claim for retaliation under § 1981, such that this claim should be dismissed as against Defendant Academy, Defendant Wicks, and the CIE Defendants.
III. 42 U.S.C. § 1983 Claim for Violation of Plaintiff's First Amendment Rights
In Count Three of his Second Amended Complaint, which Plaintiff brings pursuant to 42 U.S.C. § 1983 against all Defendants, Plaintiff alleges that “all defendants, individually and in their official capacities, retaliated against plaintiff, by way of not renewing his contract, because of his race and because he chose to run for elected public office and exercise his rights and privileges secured by the Constitution and laws of the United States, as provided by the First Amendment to the U.S. Constitution.” ECF No. 65 at ¶ 86. Thus, it appears Plaintiff premises his § 1983 claim in Count Three on allegations that he was retaliated against (through the non-renewal of his contract) for running for elected public office, which he contends is a right protected by the First Amendment.
“Section 1983 imposes liability on state actors who cause the deprivation of any rights, privileges, or immunities secured by the Constitution.” Doe v. Rosa, 795 F.3d 429, 436 (4th Cir. 2015) (internal quotation mark omitted). “To state a claim under § 1983[,] a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Loftus v. Bobzien, 848 F.3d 278, 284-85 (4th Cir. 2017) (citation and internal quotation marks omitted). “In order for an individual to be liable under § 1983, it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (internal quotation marks omitted).
The Fourth Circuit has “never recognized a First Amendment right to hold elected office,” Loftus, 848 F.3d at 285, and “the Supreme Court has made clear that public employers may permissibly bar their employees from participating in a wide array of political activities, including running for elective office,” id. at 287 (affirming dismissal pursuant to Rule 12(b)(6) of First Amendment claim based on termination of public employee after she was elected to public office). As explained by the Fourth Circuit in Loftus, case law makes clear that “public employees who desire to hold elected office face restrictions different from those faced by non-public employees by virtue of the special trust and responsibilities of being a public employee.” Id. at 285 (explaining that the U.S. Supreme Court has “affirmed that a government-employer may circumscribe the rights of its employees to engage in political activity” and has “consistently approved various restrictions on a wide array of political activity by public employees, including running for or holding public office”).
A. This claim should be dismissed as against Defendants Clyburn and Reed.
Plaintiff's third cause of action alleges that Defendants retaliated against him “by way of not renewing his contract,” id., but Plaintiff does not allege any facts showing that either Defendant Clyburn or Defendant Reed was Plaintiff's employer or had any ability to renew or not renew his contract. See Wright, 766 F.2d at 850 (requiring affirmative showing that the official charged “acted personally in the deprivation of the plaintiff's rights”). Moreover, Plaintiff has not alleged sufficient facts to establish that the non-renewal of his contract violated his First Amendment rights or that any actions taken by Defendant Clyburn or Defendant Reed in that regard were taken “under color of state law.” See Loftus, 848 F.3d at 284-87; see also Egbert v. Boule, 596 U.S. 482, 499 (2022) (“[W]e hold that there is no Bivens action for First Amendment retaliation.”). Accordingly, the undersigned recommends that Count Three be dismissed as against Defendants Clyburn and Reed.
B. This claim should be dismissed as against the CIE Defendants.
Plaintiff alleges generally that Defendant CIE oversees public charter schools and is the entity responsible for the ongoing operations of Defendant Academy, including the hiring and firing of teachers and staff. ECF No. 65 at ¶ 32. He further alleges, in conclusory fashion, that the individual CIE Defendants are board members “with non-delegable duties to oversee and manage the operations of” Defendant Academy. Id. at ¶¶ 33-39. Plaintiff alleges, in conclusory fashion, that in July 2021, “after discovering that plaintiff intended to engage in political activity, defendants, jointly and collectively, cautioned plaintiff that if he chooses to engage in political activity, specifically, if he ch[o]se to run for the Democratic Congressional seat held by [Defendant Clyburn], it would cost him his job.” Id. at ¶ 47. Finally, Plaintiff alleges that he appeared on the primary ballot seeking election to office in June 2022, id. at ¶ 53, and that Defendant Wicks told him on May 12, 2022, that his contract would not be renewed, id. at ¶ 54.
The undersigned agrees with the CIE Defendants that Plaintiff has failed to allege sufficient facts to state a plausible § 1983 claim against any of the CIE Defendants. First, Plaintiff has not alleged sufficient facts to establish that the non-renewal of his contract violated his First Amendment rights. See Loftus, 848 F.3d at 285-87. Second, Plaintiff has not alleged sufficient facts to permit a reasonable inference that any of the CIE Defendants acted personally in the nonrenewal of Plaintiff's contract. See Wright, 766 F.2d at 850 (requiring affirmative showing that the official charged “acted personally in the deprivation of the plaintiff's rights”); see also Iqbal, 556 U.S. at 678-79 (explaining that a court should grant a motion to dismiss where the allegations are nothing more than legal conclusions or recitations of the elements, or where they permit a court to infer no more than a possibility of misconduct). Accordingly, the undersigned recommends that Count Three be dismissed as against the CIE Defendants.
C. This claim should be dismissed as against Defendants Wicks and Academy.
Although Plaintiff alleges sufficient facts to plausibly allege that Defendant Wicks, in her role as Executive Director of Defendant Academy, acted personally in the non-renewal of Plaintiff's contract, Plaintiff nonetheless has failed to allege sufficient facts to show that this nonrenewal violated his First Amendment rights. See Loftus, 848 F.3d at 285-87. Accordingly, the undersigned recommends that Count Three be dismissed as against Defendants Wicks and Academy.
IV. Race Discrimination in Violation of Title VII
In Count Four of his Second Amended Complaint, asserted against only Defendant Academy and Defendant CIE, Plaintiff alleges that “defendants['] conduct in intentionally discriminating against him because of his race as an African American was knowingly and reckless[ly] made in violation of the Title VII.” ECF No. 65 at ¶ 91.
A. Title VII Claim Against Defendant CIE
Defendant CIE moves for dismissal of this claim, arguing that Plaintiff failed to exhaust his administrative remedies as to any Title VII claim against CIE and that he failed to allege sufficient facts to state a claim against CIE. ECF No. 74 at 3-4. In response, Plaintiff generally contends that the Second Amended Complaint's allegations are sufficient to satisfy the Iqbal/Twombly standard. ECF No. 86-2 at 3. Upon review, the undersigned agrees that the Title VII claim against Defendant CIE should be dismissed.
1. Exhaustion of administrative remedies generally
Title VII prohibits an “employer [from] discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Title VII also prohibits an “employer [from] discriminat[ing] against any of [its] employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a).
Before filing suit under Title VII, a plaintiff must exhaust his administrative remedies by bringing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) or, in a “deferral” jurisdiction such as South Carolina, with an appropriate state or local agency, within a specified time “after the alleged unlawful employment practice occurred.” 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1); see Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir. 1999) (dismissing plaintiff's Title VII claim for failure to exhaust administrative remedies). Title VII establishes two possible limitation periods for filing a discrimination charge: “the basic limitations period is 180 days after the alleged unlawful employment practice but can be extended to 300 days in a deferral state if state law proscribes the alleged employment practice and the charge is first filed with a state deferral agency.” Gerald v. Olsten, No. 4:20-CV-2555-CMC-KDW, 2021 WL 1394669, at *2 (D.S.C. Feb. 9, 2021) (citation and internal quotation marks omitted), report and recommendation adopted, No. 4:20-CV-2555-CMC, 2021 WL 960509 (D.S.C. Mar. 15, 2021).
One of the primary purposes behind the exhaustion of administrative remedies requirement is to give notice to an employer of the plaintiff's allegations. Notably, the Fourth Circuit has emphasized the importance of notice:
Congress intended the exhaustion requirement to serve the primary purpose of notice and conciliation. First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory action. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning. Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted).
Courts have interpreted this exhaustion requirement to mean that each discrete incident of discriminatory treatment must be administratively exhausted. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.”); King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (stating that subsequent civil suit “may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge”) (internal quotation marks omitted); Bishop v. Behr Heat Transfer Sys., No. 2:11-CV-3535-SB-BHH, 2012 WL 1752701, at *4 (D.S.C. Feb. 16, 2012) (“A plaintiff's failure to file a charge within the applicable limitations period bars a later lawsuit in federal court.”), report and recommendation adopted, No. CIV.A. 2:11-3535-SB, 2012 WL 1752047 (D.S.C. May 16, 2012).
The Fourth Circuit has made it clear that only those discrimination claims stated in an administrative charge, those reasonably related to the original charge, and those developed by reasonable investigation of the original charge, may be maintained in a subsequent Title VII lawsuit. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). Courts have routinely enforced the exhaustion requirement on the rationale that “[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge as surely as would a failure to file a timely EEOC charge.” O'Rourke v. Cont'l Cas. Co., 983 F.2d 94, 97 (7th Cir. 1993) (citation and internal quotation marks omitted).
2. This claim should be dismissed as against Defendant CIE.
Upon review, the undersigned finds that the Title VII claim against Defendant CIE should be dismissed. As an initial matter, Plaintiff's Second Amended Complaint does not contain any factual allegations from which to infer that Plaintiff was an employee of Defendant CIE. Moreover, Plaintiff's Charge of Discrimination identifies his sole employer as “Royal Live Oaks Academy,” and it does not assert any claims against CIE. See ECF No. 74-1 at 2. Defendant CIE argues that Plaintiff “did not amend the charge and no EEOC investigation expanded the scope of the charge to include CIE or the individually-named board members of CIE as a potential ‘employer' or other respondent within the scope of Title VII.” ECF No. 74 at 3. Plaintiff does not dispute this in his Response. See generally ECF No. 86-2. Thus, it does not appear that Plaintiff's Title VII claim against CIE was stated in an administrative charge, reasonably related to the original charge, or developed by reasonable investigation of the original charge. See Evans, 80 F.3d at 963.
On this record, the undersigned is constrained to agree with Defendant CIE that Plaintiff has failed to establish that he exhausted his administrative remedies against Defendant CIE and has failed to state a viable claim for relief against Defendant CIE under Title VII. Accordingly, the undersigned recommends that Plaintiff Title VII claim against Defendant CIE be dismissed.
B. Title VII Claim Against Defendant Academy
Defendant Academy moves for dismissal of Plaintiff's Title VII race discrimination claim, arguing that Plaintiff failed to include facts sufficient to establish an entitlement to relief. ECF No. 72 at 3. Defendant Academy also argues that any Title VII claim alleged against Wicks in her individual capacity should be dismissed. Id. In his Response, Plaintiff generally argues that “[t]he factual allegations in the Second Amended Complaint, if taken a[s] true for the purposes of the Court deciding the instant defendants' Motion to Dismiss, state cognizable claims that must be sustained.” ECF No. 84-2 at 4.
As an initial matter, the undersigned agrees that Defendant Wicks is not subject to suit under Title VII because “supervisors are not liable in their individual capacities for Title VII violations.” See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998). However, Plaintiff's Second Amended Complaint does not appear to assert a Title VII claim against Defendant Wicks; rather, Plaintiff alleges his Title VII discrimination claim against only Defendants Academy and CIE. See ECF No. 65 at 25 (“Count Four as and for a Fourth Cause of Action against Defendant Royal Live Oaks Academy of the Arts & Sciences Charter School & Defendant Charter Institute at Erskine for Violation of Title VII”). Nonetheless, to the extent the Second Amended Complaint could be construed as asserting a Title VII claim against Defendant Wicks, the undersigned finds that Plaintiff has not alleged sufficient facts from which to infer the Defendant Wicks is an “employer,” as that term is defined in Title VII, or otherwise subject to individual liability under Title VII, such that any such claim should be dismissed. See 42 U.S.C. § 2000e(b).
Defendant Academy argues that the Title VII claim against it should be dismissed because Plaintiff failed to allege sufficient facts to establish a prima facie case of discrimination under the McDonnell Douglas framework. ECF No. 72-1 at 15-16 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). However, a plaintiff is not required to plead facts establishing a prima facie case of discrimination to survive a motion to dismiss. McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015). Rather, to state a discrimination claim under Title VII, a plaintiff is “required to allege facts to satisfy the elements of a cause of action created by that statute.” Id. In this case, Plaintiff must allege facts sufficient to show that Defendant Academy “discharge[d Plaintiff] or otherwise discriminate[d] against [him] with respect to his compensation, terms, conditions, or privileges of employment, because of [his] race.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). “While a plaintiff need not plead a prima facie case to survive a motion to dismiss, a Title VII complaint is still subject to dismissal if it does not meet the ordinary pleadings standard under Twombly and Iqbal.” Swaso v. Onslow Cnty. Bd. of Educ., 698 Fed.Appx. 745, 747 (4th Cir. 2017), as amended (Aug. 11, 2017) (citing McCleary-Evans, 780 F.3d at 584-85; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)).
Accepting the factual allegations as true and drawing all reasonable inferences in favor of Plaintiff, the undersigned finds that Plaintiff has alleged sufficient facts to state a claim for race discrimination under Title VII against Defendant Academy. According to the Second Amended Complaint, Defendant Wicks informed Plaintiff, on May 12, 2022, that his contract would not be renewed for the 2022-2023 academic year because of “his insubordinate behavior and less than satisfactory relationships with students and parents.” ECF No. 65 at ¶ 41. Plaintiff asserts that at that meeting, Defendant Wicks called Plaintiff “an angry Black man,” id. at ¶ 52, and he claims she “admonished plaintiff for being ‘Too Black' and called for him to reduce the appearance of what they believed were his racial and ethnic characteristics and political speech that alienated him from some students, parents and staff.” Id. at ¶ 42. Plaintiff alleges that the cited reasons for the non-renewal of his contract-insubordinate behavior and less than satisfactory relationships with students and parents-were pretext for racial animus and retaliation for his political challenge to Defendant Clyburn. Id. at ¶¶ 44, 54-55. According to Plaintiff, he obtained high performance ratings from students who participated in online in-school surveys, consistently receiving approval ratings of between 75% to 95% throughout his career at Defendant Academy, and he also received a “vast number of messages of support from parents of students.” Id. at ¶¶ 45-46.
At this stage of the litigation, the undersigned finds these factual allegations sufficient to allege that Defendant Academy “discharge[d Plaintiff] . . . because of [his] race.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). Accordingly, the undersigned recommends that Defendant Academy's motion to dismiss the Title VII claim be denied.
Defendant Academy also argues in its Motion that to the extent Plaintiff bases his Title VII claim on theories other than race discrimination-such as age or retaliation-the Title VII claim should be dismissed. In support, Defendant Academy cites an allegation appearing under Plaintiff's Second Cause of Action for Retaliation in violation of 42 U.S.C. §§ 1981 and 2000a. See ECF No. 72-1 at 13-14 (citing Second Am. Compl. ¶ 81). It does not appear to the undersigned that Plaintiff has asserted any claim for retaliation or age discrimination under his Fourth Cause of Action for Violation of Title VII, where he expressly alleges intentional discrimination against him “because of his race as an African American.” ECF No. 65 at ¶ 91.
V. Violation of 42 U.S.C. § 1985
In Count Five of his Second Amended Complaint, Plaintiff alleges that “all” Defendants “knowingly and intentionally, individually and in their official capacities, conspired to interfere with the Civil Rights of [P]laintiff, by way of not renewing his contract, because of his race and because he chose to run for elected public office and exercise his rights and privileges by the Constitution and laws of the United States, as provided by the First Amendment to the U.S. Constitution.” ECF No. 65 at ¶ 96.
Section 1985(3) permits claims by plaintiffs who are injured by a conspiracy formed “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3). To state a claim under 42 U.S.C. § 1985(3), Plaintiff must show the following:
Although Plaintiff does not specify which subpart of § 1985 he is invoking, only subsection (3) arguably is implicated by his allegations. See 42 U.S.C. § 1985(1) (conspiracy to prevent federal officer from performing duties); Id. at § 1985(2) (conspiracy to obstruct justice or intimidate party, witness, or juror).
(1) a conspiracy of two or more persons, (2) who are motivated by a specific classbased, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.A Soc'y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (quoting Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995)). “Moreover, the plaintiff must show an agreement or a meeting of the minds by the defendants to violate the plaintiff's constitutional rights.” Id. (internal quotation marks omitted). The Fourth Circuit has “specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.” Id. Thus, where a plaintiff “fails to allege with any specificity the persons who agreed to the alleged conspiracy, the specific communications amongst the conspirators, or the manner in which any such communications were made,” the allegations are insufficient to show a meeting of the minds by the defendants. See Id. at 347.
Plaintiff alleges, in a merely conclusory manner, that “all defendants, knowingly and intentionally, individually and in their official capacities, conspired to interfere with the Civil Rights of plaintiff, by way of not renewing his contract, because of his race and because he chose to run for elected public office.” ECF No. 65 at ¶ 96. The allegations in the Second Amended Complaint fail to meet the “relatively stringent standard for establishing section 1985 conspiracies.” See Simmons, 47 F.3d at 1377. The Second Amended Complaint's allegations do not show a meeting of the minds between any of the Defendants, and there are no specific factual allegations identifying the specific communications among alleged conspirators or the manner in which such communications were made. See A Soc'y Without A Name, 655 F.3d at 346-47. Without more, the allegations in the Second Amended Complaint are not enough to state a claim under § 1985(3). See id. at 346. Accordingly, Plaintiff's § 1985 claim should be dismissed as to all Defendants. Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002) (explaining that plaintiff has the burden of alleging facts sufficient to state all the elements of a claim).
VI. Violation of 42 U.S.C. § 1986
In Count Six of his Second Amended Complaint, Plaintiff alleges that “all” Defendants “each having the power and position to act, did knowingly and intentionally, individually and in their official capacities, fail to act to prevent Plaintiff's civil rights from being violated because of Plaintiff's race and because he chose to run for elected public office and exercise his rights and privileges secured by the Constitution and laws of the United States, as provided by the First Amendment to the U.S. Constitution.” ECF No. 65 at ¶ 101.
Section 1986 provides a cause of action against any party with knowledge of a § 1985 conspiracy who fails to attempt to prevent the conspiracy. 42 U.S.C. § 1986. Thus, “[a] cause of action based upon § 1986 is dependent upon the existence of a claim under § 1985.” Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985). Having determined that the § 1985 claim is subject to dismissal, the undersigned must also recommend dismissal of the § 1986 claim against all Defendants. See id.; Sigma Lambda Upsilon/Senoritas Latinas Unidas Sorority, Inc. v. Rector & Visitors of Univ. of Virginia, 503 F.Supp.3d 433, 449 (W.D. Va. 2020).
VII. 42 U.S.C. § 1983 Claim against Defendant Clyburn
In Count Seven of his Second Amended Complaint, asserted against only Defendant Clyburn, Plaintiff alleges that Defendant Clyburn, “in his official capacity, retaliated against plaintiff, by blocking and muting plaintiff and preventing plaintiff from commenting in a public forum, namely Twitter, because of his criticism of Defendant James E. Clyburn, caus[ing] sever[e] harm to plaintiff by preventing plaintiff from exercising his rights and privileges secured by the Constitution and Laws of the United States, as provided by the free speech provisions of [the] First Amendment to the U.S. Constitution.” ECF No. 65 at ¶ 106. Plaintiff further alleges, “Given plaintiff's political challenge to Defendant [Clyburn's] office in June of 2022, [Defendant Clyburn] used his Twitter accounts to quash political speech in violation of plaintiff's First Amendment Rights.” Id. at ¶ 107. Plaintiff also alleges that Defendant Clyburn “continue[s] to ban plaintiff from access to his twitter accounts and exercising his First Amendment rights to free speech and, in doing so, denies or diminishes a significant opportunity for a more robust and diverse political debate on issues of public concern.” Id. at ¶ 108. Plaintiff seeks only money damages, including “compensatory damages, as well as costs and attorney fees,” and punitive damages. Id. at ¶¶ 109-10.
In his Motion to Dismiss, Defendant Clyburn argues that he is entitled to dismissal of this claim for money damages because Plaintiff failed to state a viable claim for relief, ECF No. 73 at 1, and pursuant to qualified immunity, ECF No. 73-1 at 3-8. In his Response, Plaintiff generally argues that “[t]he factual allegations in the Second Amended Complaint, if taken a[s] true for the purposes of the Court deciding the instant defendants' Motion to Dismiss, state cognizable claims that must be sustained.” See ECF Nos. 85, 85-2. For the reasons that follow, the undersigned finds that this claim should be dismissed.
Section 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives someone of a federal constitutional or statutory right. 42 U.S.C. § 1983; Bulger v. Hurwitz, 62 F.4th 127, 135 (4th Cir. 2023) (“42 U.S.C. § 1983 authorizes plaintiffs to bring an action for money damages against state and local government officials who, while acting ‘under color of state law,' violated the plaintiffs' constitutional rights.”). “As its text makes clear, this provision protects against acts attributable to a State, not those of a private person,” Lindke v. Freed, No. 22-611, 2024 WL 1120880, at *5 (U.S. Mar. 15, 2024), or of federal officials, Bulger, 62 F.4th at 135. Thus, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added).
Plaintiff purports to bring his First Amendment claim against Clyburn in his official capacity pursuant to 42 U.S.C. § 1983. However, Plaintiff does allege any facts demonstrating that Clyburn was acting under the color of state law. Rather, Plaintiff alleges that Clyburn was acting in his official capacity as a United States Congressman. See ECF No. 65 at ¶¶ 1, 23-27, 105-10. Indeed, Plaintiff expressly alleges that he is suing Clyburn “in his individual capacity and in his official capacity as a Member of the United States Congress.” Id. at ¶ 27. Because Plaintiff has not alleged facts showing that the alleged deprivation of his First Amendment right was committed by a person acting under color of state law, Plaintiff has failed to state a viable claim under § 1983.
Liberally construed, it is possible that the Second Amended Complaint seeks to bring this claim for damages against Clyburn pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which “provides the federal analog to § 1983 claims.” Bulger, 62 F.4th at 135; see Erickson, 551 U.S. at 94 (“Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys.”).
In Bivens, the United States Supreme Court recognized an implied cause of action for damages against federal officials for Fourth Amendment violations. See Correctional Servs. Corp. v. Malesko, 543 U.S. 61, 66 (2001). Following Bivens, the Supreme Court has recognized only two additional situations in which a federal official can be sued for money damages for constitutional violations: one for gender discrimination in violation of the equal protection component of the Fifth Amendment's due process clause, Davis v. Passman, 442 U.S. 228, 230 (1979), and a second for deliberate indifference to an inmate's serious medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14, 18 (1980). “In the more than four decades since, however, the Supreme Court has consistently rebuffed every request-12 of them now-to find implied causes of action against federal officials for money damages under the Constitution.” Mays v. Smith, 70 F.4th 198, 202 (4th Cir. 2023) (internal quotation marks and citations omitted). Importantly, the Supreme Court has repeatedly declined to extend Bivens to a claim sounding in the First Amendment. See Egbert v. Boule, 596 U.S. 482, 499 (2022) (“[W]e hold that there is no Bivens action for First Amendment retaliation.”); Bush v. Lucas, 462 U.S. 367, 390 (1983) (declining to extend Bivens to a claim that federal employee was improperly disciplined for exercising his First Amendment rights).
The Supreme Court “has made clear that expanding the Bivens remedy to a new context is an ‘extraordinary act' that will be unavailable ‘in most every case.'” Mays, 70 F.4th at 202 (quoting Egbert, 596 U.S. at 492, 497 n.3). If, as here, a claim arises in a new context, “the court must ask whether there are any special factors that counsel hesitation about granting the extension of the Bivens remedy.” Id. (internal quotation marks and citation omitted). This “special factors” inquiry must focus on “separation-of-powers principles” and “requires courts to ask whether judicial intrusion into a given field is appropriate.” Id. (quoting Bulger, 62 F.4th at 137). “If there is any reason to think that Congress might be better equipped to create a damages remedy, then the court must decline to extend Bivens to a new context.” Id. at 202-03 (emphasis in original) (citing Egbert, 596 U.S. at 491-92).
Here, special factors counsel against creating a new Bivens remedy in this case. As the Supreme Court explained in Egbert, “[e]xtending Bivens to alleged First Amendment violations would pose an acute risk of increasing such costs,” and “in light of these costs, Congress is in a better position to decide whether or not the public interest would be served by imposing a damages action.” 596 U.S. at 499 (citation and internal quotation marks omitted). Therefore, because Plaintiff's First Amendment claim would expand Bivens to a “new context” and because there are “special factors” counseling against doing so, his First Amendment claim is not cognizable. See Mays, 70 F.4th at 206. Accordingly, Plaintiff has failed to state a viable claim for relief against Defendant Clyburn based on alleged First Amendment violations, such that the Seventh Cause of Action should be dismissed.
Defendant Clyburn also argues that he is entitled to qualified immunity as to this claim. See ECF No. 73-1 at 3-8. “Qualified immunity shields federal and state officials from money damages unless the plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. at 741 (citation and internal quotation marks omitted). In order for a right to become sufficiently clear to hurdle qualified immunity, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. As Defendant Clyburn notes, the issue alleged in Plaintiff's Second Amended Complaint-whether a public official engages in state action subject to the First Amendment by blocking an individual from the official's personal social media account, when the official uses the account to feature his job and communicate about job-related matters with the public, but “does not do so pursuant to any governmental authority or duty”-has been pending before the United States Supreme Court in O'Connor-Ratcliff v. Garnier, No. 22-324. See O'Connor-Ratcliff, Petition for Certiorari (filed Oct. 4, 2022); petition granted, 143 S.Ct. 1779 (Apr. 24, 2023). See ECF No. 65 at ¶ 56. The Supreme Court granted certiorari to resolve a Circuit split about how to identify state action in the context of public officials using social media, held oral argument on October 31, 2023, and issued a decision on March 15, 2024, in that case, O'Connor-Ratcliff v. Garnier, No. 22-324, 2024 WL 1120878, at *1 (U.S. Mar. 15, 2024), as well as in a related case, Lindke, 2024 WL 1120880. The Supreme Court vacated the judgment in both cases and remanded to the appellate courts for further proceedings. In so doing, the Supreme Court rejected the approach used by the Ninth Circuit in O'Connor-Ratcliff to identify when a public official's use of a personal social media account constitutes state action and announced a different approach. See Lindke, 2024 WL 1120880, at * 7; O'Connor-Ratcliff, 2024 WL 1120878, at *1 (“Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”). Notably, the Ninth Circuit's approach was based on the approach taken by the Fourth Circuit in Davison v. Randall, 912 F.3d 666 (4th Cir. 2019), where the court found under the facts of that case that a county official violated the plaintiff's rights under the First Amendment when she banned the constituent on her Facebook account. See Garnier v. O'Connor-Ratcliff, 41 F.4th 1158, 1177 (9th Cir. 2022) (“In short, we follow the mode of analysis of the Second, Fourth, and Eighth Circuits to hold that the Trustees used their social media accounts as an organ of official business.”), cert. granted, 143 S.Ct. 1779, 215 L.Ed.2d 669 (2023), and vacated and remanded, No. 22-324, 2024 WL 1120878 (U.S. Mar. 15, 2024), and abrogated by Lindke v. Freed, No. 22-611, 2024 WL 1120880 (U.S. Mar. 15, 2024). In the instant case, because Plaintiff has not alleged any state action by Defendant Clyburn and because Bivens has not and should not be extended to the context of a First Amendment violation, Plaintiff has not stated a cognizable claim for damages against Defendant Clyburn for a First Amendment violation under § 1983 or Bivens. Accordingly, the Court need not reach Defendant Clyburn's qualified immunity defense.
VIII. Defendants Wicks and Academy's Motion to Strike
Finally, Defendants Wicks and Academy move to strike “all punitive damages alleged, which include Paragraphs 79, 84, 89, 94, 99, 104,” and they seek to strike “Plaintiff's ‘WHEREFORE' subsection[s] (f), . . . (d), (h), and (j).” ECF No. 72-1 at 21. Although there is no subsection (j) in the WHEREFORE statement, the other referenced subsections request an award of compensatory damages, ECF No. 65 at 29 ¶ (d), an award of “punitive damages against individual defendants,” Id. at ¶ (f), and an award of “attorney fees and costs,” Id. at ¶ (h). Defendants Wicks and Academy also request that any reference by Plaintiff to any federal statutes, Amendments to the U.S. Constitution, and South Carolina laws that are immaterial to his claims be stricken. ECF No. 72-1 at 24.
Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P 12(f). Whether to grant a motion to strike under Rule 12(f) is within the sound discretion of the court. See Foust v. Walker, No. CV 5:15-3445-JMC-SVH, 2016 WL 4257154, at *2 (D.S.C. June 17, 2016), report and recommendation adopted, No. 5:15-CV-03445-JMC, 2016 WL 4208096 (D.S.C. Aug. 10, 2016); Palmetto Pharm. LLC v. Astrazeneca Pharm. LP, No. 2: ll-cv-00807-SB-JDA, 2012 WL 6025756, at *4 (D.S.C. Nov. 6, 2012).
“Rule 12(f) motions are generally viewed with disfavor ‘because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.'” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A A. Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1380 (2d ed. 1990)). “When reviewing a motion to strike, ‘the court must view the pleading under attack in a light most favorable to the pleader.'” Piontek v. Serv. Ctrs. Corp., Civil No. PJM 10-1202, 2010 WL 4449419, at *3 (D. Md. Nov. 5, 2010) (quoting Clark v. Milam, 152 F.R.D. 66, 71 (S.D. W.Va. 1993)).
Defendant Academy argues that Plaintiff cannot recover punitive damages from the school because it is a governmental entity. ECF No. 72-1 at 21-23. As explained above, the undersigned finds that Plaintiff has stated a claim against Academy for discrimination in violation of 42 U.S.C. § 1981 and in violation of Title VII. The Civil Rights Act of 1964 provides, in pertinent part, as follows:
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.42 U.S.C. § 1981a(b)(1) (emphasis added). The statute and case law make clear that punitive damages under § 1981 and Title VII are not available against state entities. See id.; see also Williams v. Newport News Sch. Bd., No. 4:20-CV-41, 2021 WL 3674983, at *19 (E.D. Va. Aug. 19, 2021) (finding punitive damages unavailable as against school board for Title VII claim); Locklear v. Robeson Cnty. Bd. of Educ., No. 7:04-CV-54-F(3), 2006 WL 8439020, at *16 (E.D. N.C. Sept. 20, 2006) (“Punitive damages are not available against municipalities under 42 U.S.C. § 1981, 42 U.S.C. § 1983, or Title VII.”). Thus, the undersigned agrees that Plaintiff cannot recover punitive damages against Defendant Academy for these claims.
Defendant Wicks contends that she also is not subject to punitive damages because, under the South Carolina Tort Claims Act (“SCTCA”), she “is an employee acting on behalf or in service of a governmental entity in the scope of their official duties.” ECF No. 72-1 at 23. However, Plaintiff has not asserted any tort claims against Wicks pursuant to the SCTCA. And, as explained above, the undersigned finds that Plaintiff has stated a claim against Wicks for discrimination in violation of 42 U.S.C. § 1981. Defendant Wicks has not demonstrated that she is exempt from the punitive damages provision of 42 U.S.C. § 1981a(b)(1).
As for the request to strike Plaintiff's request for compensatory damages, attorney fees, and any stray reference to laws Defendants deem to be immaterial to Plaintiff's claims, the undersigned is not persuaded that these provisions contain redundant, immaterial, impertinent, or scandalous matter that should by struck pursuant to Rule 12(f).
In light of the foregoing, the undersigned recommends that the Motion to Strike be granted as to the request for punitive damages in Paragraph 94 under Count Four's Title VII claim but denied as to the remainder of the relief sought.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that Defendants Clyburn and Reed's Motion to Dismiss (ECF No. 73) be GRANTED, that the CIE Defendants' Motion to Dismiss (ECF No. 74) be GRANTED, and that all claims alleged against those Defendants be DISMISSED. It is further RECOMMENDED that Defendants Wicks and Academy's Motion to Dismiss and Motion to Strike (ECF No. 72) be GRANTED, in part, and DENIED, in part. If this recommendation is adopted, then only Count One's § 1981 discrimination claim against Defendants Wicks and Academy and Count Four's Title VII claim against Defendant Academy will survive and proceed to discovery.
IT IS SO RECOMMENDED.
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:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
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).