Opinion
CIVIL 6:23-CV-00318-ADA-JCM
09-12-2023
PRESTON MILLBROOKS, Plaintiff, v. WHATABURGER RESTAURANTS LLC, Defendant.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are Whataburger Restaurants LLC's Motion to Dismiss Plaintiff's Complaint (ECF No. 4), Plaintiff's Response (ECF No. 6), Defendant's Reply (ECF No. 7), and Plaintiff's Second Response (ECF No. 8). For the following reasons, the undersigned RECOMMENDS Defendant's Motion to Dismiss Plaintiff's Complaint be GRANTED.
I. BACKGROUND
Plaintiff Preston Millbrooks sued Whataburger Restaurants LLC (“Defendant”) for withholding a portion of his wages under 42 U.S.C. § 1983, 18 U.S.C. § 242, 18 U.S.C. § 1962(b), and 42 U.S.C. § 408(8). Pl.'s Compl. (ECF No. 1) at 2. Plaintiff alleges that he was employed by Defendant. Id. at 3. During his employment, Plaintiff discovered that $91.38 had been deducted from his wages. Id. Plaintiff contacted Defendant's Human Resources Department to inquire about the unlawful deduction and was informed that the deduction was due to “high taxes.” Id.
Plaintiff later discovered what he views as a conspiracy between Defendant and the “out of state private foreign intentional Title IV-A/D welfare/public assistance recoupment agency.” Id. Plaintiff later learned that “On 12/13/2022, an income withholding order for the noncustodial parent was issued and sent to the noncustodial parent's possible employer.” Id. Plaintiff then sent two cease and desist letters to Defendant, informing it that Plaintiff did not consent to having his wages garnished. Id. at 4.
Plaintiff also
submitted a Notice of Estoppel of Tax Withholding and Deductions, to correct his citizenship status and to inform the Defendant that he was not using a Social Security Number for employment, but in fact, using his Employment Identification Number (EIN) upon re-employment to ensure that the Defendant is aware of his status as being the beneficiary over his estate.Id. After Defendant continued to garnish Plaintiff's wages, Plaintiff filed this suit. Defendant moved to dismiss. Def.'s Mot. That Motion is now before the Court.
II. LEGAL STANDARDS
Upon motion or sua sponte, a court may dismiss an action that fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6); Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006); see also Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (a Rule 12(b)(6) motion is “appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim”). To survive Rule 8, a nonmovant must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The court begins by identifying which allegations are well-pleaded facts and which are legal conclusions or elemental recitations, accepting as true the former and rejecting the latter. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not blindly accept every allegation of fact; properly pleaded allegations of fact amount to more than just conclusory allegations or legal conclusions “masquerading as factual conclusions.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). The court then determines whether the accepted allegations state a plausible claim for relief. Id. at 379.
“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice. Ashcroft, 556 U.S at 678. Rule 12(b)(6) requires that a complaint contain sufficient factual matter, if accepted as true, to “state a claim to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S 544, 570 (2007)). “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quotation marks omitted). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. For purposes of Rule 12(b)(6), “pleadings” include the complaint, its attachments, and documents referred to in the complaint and central to a plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498499 (5th Cir. 2000).
III. DISCUSSION
A. Plaintiff's Section 1983 claim should be dismissed.
Plaintiff sues Defendant for violations of his Fifth Amendment rights under 42 U.S.C. § 1983. Pl.'s Compl. at 4-5. Defendant argues that Plaintiff has failed to state a claim because Defendant did not act under color of law by enforcing the wage garnishment order. Def.'s Mot. at 7. Section 1983 creates a private right of action for constitutional violations perpetrated by a person acting under color of law. 42 U.S.C. § 1983. “The under color-of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Plaintiff has not alleged any facts showing even a possibility that Defendant, a private company, acted under color of state law. Accordingly, Defendant's Motion to Dismiss Plaintiff's Section 1983 claim should be granted.
B. Plaintiff's claim under 18 U.S.C. § 242 should be dismissed.
Plaintiff also sues Defendant for violations of 18 U.S.C. § 242. Pl.'s Compl. at 5. 18 U.S.C. § 242 criminalizes constitutional violations perpetrated under color of law. 18 U.S.C. § 242. Section 242 is a criminal statute and does not provide a private cause of action. Johnson v. Fed. Bureau of Investigation, No. CV H-16-1337, 2016 WL 9776489, at *3 (S.D. Tex. Nov. 17, 2016) (collecting cases). Accordingly, the Court lacks subject matter jurisdiction over Plaintiff's claim under 18 U.S.C. § 242, and Plaintiff's claim should be dismissed.
C. Plaintiff's claim under 18 U.S.C. § 1962(b) should be dismissed.
Plaintiff sues Defendant for violations of 18 U.S.C. § 1962(b), otherwise known as “RICO”, for enforcing the income withholding order. Pl.'s Compl. at 5-6. The elements of a RICO claim are: “(1) a person who engages in (2) a pattern of racketeering activity (3) connected to the acquisition, establishment, conduct or control of an enterprise.” Whelan v. Winchester Prod. Co., 319 F.3d 225, 229 (5th Cir. 2003). Plaintiff's only allegations in support of his RICO claim is:
The fact that the income withholding order sent from the out of state private foreign/international Title IV-A/D welfare/public assistance agency allows for the Defendant to collect an administrative fee for aiding in the unlawful debt collection practices from the Plaintiff's wages, therefore, this automatically subjects the Defendant to racketeering penalties under this code.Pl.'s Compl. at 5-6. This conclusory statement falls far short of even a pro se litigant's obligation to plead facts supporting his claim. Plaintiff has failed to provide any facts showing that Defendant acquired or maintained an interest in a criminal enterprise or that Defendant engaged in any racketeering activity. Accordingly, Plaintiff has failed to state a claim under RICO and his claim should be dismissed.
D. Plaintiff's claim under 42 U.S.C. § 408(a)(8) should be dismissed.
Plaintiff also sues Defendant for allegedly violating 42 U.S.C. § 408(a)(8). Pl.'s Compl. at 6. That statute criminalizes the disclosure, use, or compulsion of the disclosure of a person's social security number in violation of the laws of the United States. 42 U.S.C. § 408(a)(8). Plaintiff has failed to state a claim for two reasons. First, there is no indication that Congress intended to create a private right of action for the enforcement of Section 408(a)(8). Second, Plaintiff has failed to plead any facts supporting a conclusion that Defendant violated any laws of the United States by using Plaintiff's social security number to account for his employment income. Accordingly, Plaintiff's claim under 42 U.S.C. § 408(a)(8) should be dismissed.
IV. CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that Whataburger Restaurants LLC's Motion to Dismiss Plaintiff's Complaint (ECF No. 4) be GRANTED.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from an appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.