Opinion
5:23-CV-745-M-BM
07-29-2024
JOSE RODRIGUEZ, Plaintiff, v. TRUDY WILLIAMS ROBERSON, in her individual and official capacity, and NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, Defendants.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This matter is before the court on the consolidated motion [DE-5] by defendants Trudy Roberson (“Ms. Roberson”) in her official and individual capacity and the North Carolina Division of Motor Vehicles (“North Carolina DMV,” collectively, “defendants”) to dismiss the complaint [DE-1] of pro se plaintiff Jose Rodriguez (“plaintiff”). Defendants move to dismiss plaintiff's complaint pursuant to Rules 4, 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure. [DE-5] at 1; see also [DE-6] at 1. Defendants filed a memorandum in support of the motion to dismiss. [DE-6]. Plaintiff responded in opposition. [DE-9]. This case is also before the court on (i) plaintiff's motion for default judgment [DE-10], to which defendants filed a response in opposition [DE-12], and (ii) plaintiff's motion for summary judgment [DE-11], to which defendants filed a response in opposition [DE-13].
Defendants note that “[t]he North Carolina DMV is formally known as the North Carolina Division of Motor Vehicles and not the North Carolina Department of Motor Vehicles as set forth in [plaintiff's] case caption.” [DE-12] at 1. Accordingly, with the exception of the case caption, the undersigned will refer to this defendant throughout the instant memorandum and recommendation by its correct legal name.
The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). The time for filing responsive briefs has expired and the pending motions are ripe for adjudication.
For the reasons set forth below, the undersigned RECOMMENDS that defendants' motion to dismiss [DE-5] be GRANTED and that plaintiff's complaint [DE-1] be DISMISSED. Accordingly, the undersigned further RECOMMENDS that plaintiff's motion for default judgment [DE-10] and motion for summary judgment [DE-11] be DENIED AS MOOT.
I. BACKGROUND AND CLAIMS
A. Plaintiff's allegations
Plaintiff's statement of claim reads in its entirety as follows:
On 8/24/2023 I entered the fuquay varina dmv with my son for he can obtain a driving permit, while there i proceed to take photos of the bulletin board located at the foyer of the dmv and proceed to sit down at the corner of the foyer while reading the information of the photos in my phone. I was approached by a defendant, [Ms. Roberson], a manager at the fuquay varina department of motor vehicle, who demanded that I leave the property because I was violating the policy of the DMV of not taking photographs or video. I told the defendant that I was not leaving as I have not done anything wrong and was simply waiting in line while exercising my rights. Defendant called the fuquay varina police that came and arrested me for trespassing and placed me in a cage for 8 hours until I was released on bail.
On 12/05/2023 the north carolina district attorney voluntarily dismissed all charges against the plaintiff.[DE-1] at 2.
Plaintiff's complaint and other filings contain numerous instances of improper grammar and capitalization conventions. Except as otherwise noted herein, the undersigned will reflect plaintiff's drafting as presented in his filings without annotations of “[sic]” etc. for ease of reading.
B. Jurisdiction
Plaintiff alleges that this court has jurisdiction over his complaint pursuant to 42 U.S.C. §§ 1983 and 1985. [DE-1] at 1.
C. Relief requested
Plaintiff has requested damages in the form of “$250,000 against each defendant” for “physical and mental distress” caused by the arrest, including a herniated disc and a shoulder injury requiring surgery, and $500,000 in punitive damages “against defendants for the intentional violation of [plaintiff's] constitutional protected rights.” [DE-1] at 2-3.
II. ANALYSIS
Defendants argue that plaintiff's complaint should be dismissed because: (1) they were never properly served under Rule 12(b)(4) and 12(b)(5) ([DE-6] at 3); (2) plaintiff has failed to properly assert subject matter jurisdiction (id. at 4); (3) plaintiff has failed to state a claim on which relief may be granted under 42 U.S.C. §§ 1983 and 1985 (id. at 6, 8); and (4) defendants are protected by sovereign immunity or qualified immunity (id. at 9-11). For the reasons discussed below, the undersigned RECOMMENDS that defendants' motion to dismiss [DE-5] be GRANTED and that plaintiff's complaint [DE-1] be DISMISSED.
A. Insufficient process and service of process
“A motion to dismiss under Rule 12(b)(4) challenges the sufficiency or ‘form' of the process itself, while a motion to dismiss under Rule 12(b)(5) challenges the sufficiency of the act of ‘service' of process.” Torres v. Duke Energy, No. 5:22-CV-369-D, 2023 WL 2145500, at *2 (E.D. N.C. Feb. 21, 2023) (first citing Fed.R.Civ.P. 12(b)(4), (b)(5); then citing Lee v. City of Fayetteville, No. 5:15 CV-638-FL, 2016 WL 1266597, at *2 (E.D. N.C. Mar. 30, 2016)). In essence, a Rule 12(b)(4) motion to dismiss objects to the “content of the summons”, while a Rule 12(b)(5) motion to dismiss objects to “the mode of delivery, the lack of delivery, or the timeliness of delivery.” See, e.g., 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 2004). As an example, “a typical Rule 12(b)(4) challenge alleges that the entity named in the summons is different from the entity named in the complaint.” Kennedy v. Rowe, No. 5:23-CV-264-D, 2024 WL 2703016, at *2 (E.D. N.C. May 24, 2024). “A typical Rule 12(b)(5) challenge alleges that the process was delivered by a person incapable of serving process (e.g., a party), to a person or entity incapable of receiving service (e.g., a minor), or that the service was delivered in an improper way (e.g., via first-class mail [within the United States]).” Brinson v. Fred Smith Co., No. 5:22-CV-197-D, 2023 WL 2614539, at *3 (E.D. N.C. Mar. 23, 2023) (citing Stokes v. JPMorgan Chase Bank, NA, No. JFM 8:11-cv-02620, 2012 WL 527600, at *5-6 (D. Md. Feb. 16, 2012)). “Once service has been contested, the plaintiff bears the burden of establishing the validity of service pursuant to Rule 4.” Dalenko v. Stephens, 917 F.Supp.2d 535, 542 (E.D. N.C. 2013) (citing O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006)). When process or service of process is deficient, dismissal is proper under Rule 12(b)(2) for lack of personal jurisdiction. See, e.g., Mylan Lab'ys, Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993)). Further, “dismissal of a case on an issue relating to the merits of the dispute, such as failure to state a claim, is improper without resolving threshold issues of jurisdiction, including personal jurisdiction.” Boykin Anchor Co. v. AT&T Corp., No. 5:10-CV-591-FL, 2011 WL 1456388, at *1 (E.D. N.C. Apr. 14, 2011) (quoting Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548 (4th Cir. 2006)) (declining to address an argument for failure to state a claim under Rule 12(b)(6) when the court first determines that personal jurisdiction is not proper).
Here, plaintiff specifies the “north carolina department of motor vehicle” as one of the recipients in his summons. [DE-3] at 1 (emphasis added). However, defendants note that “the North Carolina DMV is formally known as the North Carolina Division of Motor Vehicles and not the North Carolina Department of Motor Vehicles.” [DE-12] at 1 (emphasis added). Accordingly, plaintiff has failed to specify the correct legal entity in his summons.
Additionally, plaintiff has failed to properly serve the North Carolina DMV. While plaintiff is correct that he need not, and indeed, should not “deliver a summons personally” (see Fed. R. Civ. Proc. 4(c)(2)), plaintiff's contention that he “only needs to make sure that defendants get [his summons]” is not legally supported. Fed.R.Civ.P. (4)(j)(2) requires that state agencies be served by “delivering a copy of the summons and of the complaint to its chief executive officer” or by “serving a copy of [the summons and complaint] in the manner prescribed by that state's law for serving a summons or like process on such a defendant.” North Carolina requires plaintiffs to serve state agencies by “delivering a copy of the summons and of the complaint to the process agent appointed by the agency.” N.C. R. Civ. P. 4(j)(4)(a).
The North Carolina DMV lists its process agent as being located at the Transportation Building, located at 1 S. Wilmington St. Raleigh, NC 27601, as a physical address, and with 1501 Mail Service Center, Raleigh, NC 27699-1501, as a mailing address. See N.C. Dep't of Transp., Contact Us, https://www.ncdot.gov/contact/Pages/default.aspx (last modified Dec. 6, 2023); see also N.C. Dep't of Justice, Process Agent Directory, https://ncdoj.gov/legal-services/legal-resources/process-agent-directory/ (last visited July 24, 2024) (listing “Jackie Warren” as the process agent contact with an address of “Office of the Commissioner, 3101 Mail Service Center, Raleigh, NC 27699-3101.”). Here, plaintiff alleges that he served Ms. Roberson on behalf of the North Carolina DMV at a local DMV office rather than one of the North Carolina DMV's registered process agents at a specified location. [DE-9] at 2. As a result, he has failed to properly serve the North Carolina DMV.
With respect to Ms. Roberson in her individual capacity, plaintiff alleges that “[t]he complaint was properly delivered to defendant Ms. [R]oberson at her place of employment by the wake county sheriff” and attaches a Wake County Sheriff's Office receipt for service of a civil summons. [DE-9] at 2; [DE-9-1]. Federal plaintiffs may serve individual defendants by (1) delivering a copy of the summons and complaint to the defendant personally, (2) leaving a copy of each at the defendant's abode with someone of suitable age and discretion who resides there, or (3) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2). Here, plaintiff has presented evidence that the Wake County Sheriff's Office may have served Ms. Roberson. However, Rule 4(1)(1) provides that “[u]nless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.” Fed. R. Civ. Proc. Rule 4(1)(1). As of the date of this memorandum and recommendation, plaintiff has not filed a server's affidavit. See generally Docket, Rodriguez v. Roberson et al, 5:23-cv-00745-M-BM (E.D. N.C. ).
For the avoidance of doubt, the undersigned does not consider a receipt from the Wake County Sheriff's Office for service of a civil summons to represent a server's affidavit. Cf. [DE-9-1] (representing a Wake County Sheriff's Office receipt) and [DE-3] at 2 (representing the blank proof of service page of plaintiff's summons).
In light of the undersigned's recommendation that this court dismiss plaintiff's claim for the reasons provided below, the undersigned does not make a determination regarding whether plaintiff's failure to properly serve the North Carolina DMV and failure to file a proper server's affidavit could be cured or would constitute an independent ground for dismissal.
B. Sovereign Immunity
“The Fourth Circuit has not definitively ruled on whether dismissal on Eleventh Amendment grounds is properly based on Rule 12(b)(1) or 12(b)(6).” Kirby v. N. Carolina State Univ., No. 5:13-CV-850-FL, 2015 WL 1036946, at *3 (E.D. N.C. Mar. 10, 2015) (citing Andrews v. Daw, 201 F.3d 521, 525 n.2 (4th Cir. 2000)), aff'd, 615 Fed.Appx. 136 (4th Cir. 2015). As a general rule, “courts consider motions to dismiss according to the sub-paragraph of Rule 12 which the moving party relies upon.” Dove for Est. of Dove v. Stevens, No. 5:05-CV-33-BO(1), 2006 WL 8438680, at *2 (citing Alston v. North Carolina A & T Univ., 304 F.Supp.2d 774, 781 n.7 (M.D. N.C. 2004)). Here, defendants list their Eleventh Amendment argument under their Rule 12(b)(6) arguments.
However, the Fourth Circuit has noted that “Eleventh Amendment immunity is a jurisdictional issue that must be decided at the earliest stage of litigation.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479 (4th Cir. 2005) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)). Accordingly, this court has previously sua sponte elected to consider Eleventh Amendment immunity under a 12(b)(1) framework. See Dove for Est. of Dove, 2006 WL 8438680, at *2 (deciding, notwithstanding the defendant's characterization of their Eleventh Amendment immunity claim as being under Rule 12(b)(6), that because the “Eleventh Amendment immunity presents a threshold issue, rather than a merits issue[, . . .t]he Court . . . will treat the Eleventh Amendment aspect of the [defendant's] motion as seeking dismissal for lack of subject matter jurisdiction under Rule 12(b)(1), instead of one for failure to state a claim for which relief can be granted under Rule 12(b)(6).”).
Similarly here, considering that Eleventh Amendment immunity could represent a jurisdictional bar, see Dove for Est. of Dove, 2006 WL 8438680, at *2, the undersigned will consider defendants' Eleventh Amendment argument under a Rule 12(b)(1) framework. On a Rule 12(b)(1) motion, “the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Bio-Medical Applications of N.C., Inc. v. Elec. Data Sys. Corp., 412 F.Supp.2d 549, 551 (E.D. N.C. 2006). “The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case.” Johnson v. North Carolina, 905 F.Supp.2d 712, 719 (W.D. N.C. 2012) (citing Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999)).
The court's standard for review of a motion filed pursuant to Rule 12(b)(1) depends on the nature of the movant's challenge to subject matter jurisdiction. A defendant can challenge subject matter jurisdiction under Rule 12(b)(1) by making “a facial challenge that the allegations pled in the complaint are not [] sufficient to establish subject matter jurisdiction.” Chong Su Yi v. Soc. Sec. Admin., 80 F.Supp.3d 666, 669 (D. Md. 2015) (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). If the argument claims that the complaint fails to allege sufficient facts conferring subject matter jurisdiction, the court must assume all facts alleged in the complaint to be true “and the plaintiff, in effect, is afforded the same procedural protection as he would receive in a Rule 12(b)(6) analysis.” Adams, 697 F.2d at 1219; see also Kimble v. Rajpal, 566 Fed. App'x. 261, 262 (4th Cir. 2014) (noting that where defendant raises a “facial challenge” to the jurisdictional allegations, “the court must evaluate the complaint in the same manner utilized in assessing a motion to dismiss for failure to state a claim-that is, viewing the well-pleaded facts in the complaint as true”). The court may consider any documents attached to the complaint in its analysis. CACI Intern., Inc. v. St. Paul Fire and Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) (“[T]he Fourth Circuit has held that courts may consider the complaint itself and any documents that are attached to it.”) (quoting Capitol Envtl. Servs., Inc. v. N. River Ins. Co., 536 F.Supp.2d 633, 640 (E.D.Va. 2008)); see also Brooks-McCollum v. Aspen Prop. Mgmt. Co., 551 Fed. App'x. 677, 679 n.* (4th Cir. 2014), cert. denied, 573 U.S. 948 (2014); see also Fed.R.Civ.P. 10(c). Alternatively, if the movant contests the accuracy of plaintiff's jurisdictional allegations, the court must treat the allegations of the complaint as mere evidence and may consider matters beyond the pleadings without converting the motion to one for summary judgment. Richmond, 945 F.2d at 768; see also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (“[T]he court may consider the evidence beyond the scope of the pleadings to resolve factual disputes concerning [subject matter] jurisdiction.”).
With respect to defendants' Eleventh Amendment argument, the undersigned construes defendants' motion as making “a facial challenge that the allegations pled in the complaint are not [] sufficient to establish subject matter jurisdiction” see Chong Su Yi, 80 F.Supp.3d at 669, and will view all well-pleaded facts alleged in the complaint to be true. See Adams, 697 F.2d at 1219.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Supreme Court has interpreted the sovereign immunity that the Eleventh Amendment recognizes to apply to suits against a state by its own citizens. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890), overruled on other grounds by statute, 42 U.S.C. § 2000d-7). “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). This immunity from suit also covers state agencies and state officials acting in an official capacity. Gamache v. Cavanaugh, No. 95-1829, 1996 WL 174623, at *1 (4th Cir. 1996) (“Under the Eleventh Amendment, however, neither a State nor its officials in their official capacity may be sued for damages in federal court without their consent.”); Constantine, 411 F.3d at 479 (“[T]he Eleventh Amendment protects ‘state agents and state instrumentalities' as well as the States themselves.”) (quoting Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, (1997)). The North Carolina DMV and its employees in their official capacities are protected by sovereign immunity under this rule. See Bailey v. Blue, No. 5:09-CV-195-F, 2009 WL 1675933, at *2 (E.D. N.C. June 11, 2009) (applying Eleventh Amendment immunity to DMV employees and stating “[p]laintiff's claims against [d]efendants acting in their official capacity are barred”).
“There are only two exceptions to governmental immunity under the Eleventh Amendment . . . (1) where the state agency has waived its immunity, or (2) where Congress has overridden that immunity.” Philips v. N. Carolina State, No. 5:15-CV-95-F, 2015 WL 9462095, at *6 (E.D. N.C. Dec. 28, 2015), aff'd, 667 F. App'x. 419 (4th Cir. 2016) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)).
Plaintiff does not allege that the State of North Carolina or any state official has waived its immunity. See generally [DE-1]. Furthermore, 42 U.S.C. §§ 1983 and 1985 do not serve as statutory overrides of Eleventh Amendment immunity. See Meares v. Brunswick Cnty., N.C. , 615 F.Supp. 14, 16 (E.D. N.C. 1985) (“Though 42 U.S.C. 1983 may have been enacted pursuant to Section 5 of the Fourteenth Amendment, it does not apply to states and therefore states retain sovereign immunity in 1983 actions.”); Clark v. Maryland Dep't of Pub. Safety & Corr. Servs., 247 F.Supp.2d 773, 776 (D. Md. 2003) (“The Eleventh Amendment bars plaintiff's claim under 42 U.S.C. § 1985(3) because Congress has not expressly abrogated state immunity in § 1985 actions.”).
Furthermore, state officials in their official capacity are also immune to suits for damages brought under §§ 1983 and 1985 because the suit is against their office rather than the official themselves. Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State officers sued for damages in their official capacity are not ‘persons' for purposes of the suit because they assume the identity of the government that employs them.” (citing Will, 491 U.S. at 71)).
As an “arm of the state,” the North Carolina DMV enjoys the same Eleventh Amendment Immunity protections as the state of North Carolina. Bailey, 2009 WL 1675933, at *2 (quoting Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996)). For the same reason, Ms. Roberson is also immune suit in federal court in her official capacity as a state officer. Id. Accordingly, because the North Carolina DMV and Ms. Roberson, in her official capacity, are protected by sovereign immunity, the undersigned RECOMMENDS that any claims against them be DISMISSED.
C. Qualified Immunity
Defendants argue that Ms. Roberson is entitled to qualified immunity in her individual capacity. [DE-6] at 10. Unlike actions taken in their official capacity discussed above, state officials are not immune to personal liability for § 1983 claims if it can be shown that “the official, acting under color of state law, caused the deprivation of a federal right.” Hafer, 502 U.S. at 25 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). To establish personal liability, a plaintiff must show “(1) the allegations underlying the claim, if true, substantiate the violation of a federal statutory or constitutional right; and (2) this violation was of a clearly established right of which a reasonable person would have known.” Davison v. Rose, 19 F.4th 626, 640 (4th Cir. 2021) (internal quotation marks omitted) (quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)). “‘Clearly established' means that, at the time of the [official's] conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful.” Sharpe v. Winterville Police Dep't, 480 F.Supp.3d 689, 695 (E.D. N.C. 2020), aff'd, 59 F.4th 674 (4th Cir. 2023) (alteration in original) (quoting District of Columbia v. Wesby, 58 U.S. 48 (2018)).
Accordingly, to defeat Ms. Roberson's qualified immunity for actions taken in her individual capacity, plaintiff must show that his allegations, if true, support that (1) Ms. Roberson's request for plaintiff to leave the DMV facility for taking pictures and subsequently calling the police when he refused to do so violated his constitutional rights under the First Amendment; and (2) the violation was of a clearly established right of which a reasonable DMV official would have known.
Defendants list their qualified immunity argument under their Rule 12(b)(6) arguments. See [DE-6] at 10-11. See Dove for Est. of Dove v. Stevens, No. 5:05-CV-33-BO(1), 2006 WL 8438680, at *2 (“[C]ourts [generally] consider motions to dismiss according to the sub-paragraph of Rule 12 which the moving party relies upon.”) (citations omitted).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if “it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Ordinarily, the complaint must contain simply “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible if the plaintiff alleges factual content “that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and shows more than “a sheer possibility that a defendant has acted unlawfully.” Id.; see SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 425 (4th Cir. 2015) (“[I]t is not our task at the motion-to-dismiss stage to determine ‘whether a lawful alternative explanation appear[s] more likely' from the facts of the complaint” (quoting Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015)) (alteration in original)), as amended on reh'g in part (Oct. 29, 2015).
In analyzing a Rule 12(b)(6) motion, a court must accept as true all well-pleaded allegations of the challenged complaint and view those allegations in the light most favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); see also Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (noting that the court must accept as true all factual allegations of the complaint). All reasonable factual inferences from the allegations must be drawn in the plaintiff's favor. Edwards, 178 F.3d at 244. However, bare assertions of legal conclusions or formulaic recitations of the elements of a claim are not entitled to be assumed true. Iqbal, 556 U.S. at 681. Complaints filed by pro se plaintiffs are entitled to liberal construction. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016) (“We are mindful of our obligation to liberally construe a pro se complaint.”); Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (“We must construe pro se complaints liberally. . . and [l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” (alteration in original) (citations omitted)); White v. White, 886 F.2d 721, 724 (4th Cir. 1989) (“Pro se complaints are to be read liberally”).
The undersigned notes that the instant fact pattern bears some similarities to certain other cases involving the recording of government officials or recording on government property. More specifically, this case is analogous to cases involving so-called “first amendment auditors” who will record government officials or inside government buildings to test the constitutionality of recording policies. Cf. [DE-1] at 2 (plaintiff alleging that he “told the defendant that [he] was not leaving as [he had] not done anything wrong [by taking a picture of a bulletin board inside the DMV] and was simply waiting in line while exercising, [his] rights.”); and Brown v. Basznianyn, No. CV 21-00050-TUC-DCB, 2023 WL 3098982, at *2 (D. Ariz. Mar. 29, 2023) (discussing actions by “a group, who consider themselves first amendment auditors and frequently come to City Court and other locations to film police officers while they perform their duties.”); Dewitt v. Haney, No. 4:21-CV-340-AW-MAF, 2023 WL 2731865, at *2 (N.D. Fla. Mar. 31, 2023), appeal dismissed sub nom. Dewitt v. Unknown Pers., No. 23-11203-HH, 2023 WL 4424788 (11th Cir. July 6, 2023) (discussing so-called “First Amendment audits” in the context of whether there is “a clearly established right to record video in a probation office's lobby without the office's permission.”).
The undersigned notes that, unlike many fact patterns involving so-called “first amendment auditors,” there is no indication that plaintiff intended to publish his pictures or that they otherwise represented an “expressive purpose.” Cf. Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021) (“If the photography or recording is unrelated to an expressive purpose, or if the ordinance prohibits conduct that imposes incidental burdens on speech, then the act of recording may not receive First Amendment protection”); cf. [DE-1] at 2 (noting that upon taking the photos, plaintiff proceeded “to sit down at the corner of the foyer while reading the information of the photos in [his] phone.”).
While the Supreme Court has not expressly ruled on this issue, certain circuits have held that the public has or may have a right to record police carrying out their official duties in public, “subject to reasonable time, place, and manner restrictions.” Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (quoting Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010)); see also Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“As to the First Amendment claim under Section 1983, we agree with the Smiths that they had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”). Specifically, the Fourth Circuit in Sharpe v. Winterville Police Dep't, found that prohibiting individuals from livestreaming a traffic stop may violate the First Amendment. 59 F.4th 674, 681 (4th Cir.) (holding that “livestreaming a police traffic stop is speech protected by the First Amendment” but regulating such speech “survives First Amendment scrutiny if Defendants demonstrate that: (1) the Town has weighty enough interests at stake; (2) the policy furthers those interest; and (3) the policy is sufficiently tailored to furthering those interests.”) (citations omitted), cert. denied, 144 S.Ct. 488, 217 L.Ed.2d 256 (2023), and cert. denied, 144 S.Ct. 489 (2023). However, in that case, the Fourth Circuit also found that the officer who made the traffic stop was entitled to qualified immunity because “[a]t the time of [the relevant] traffic stop, it was not clearly established that the First Amendment prohibited an officer from preventing a passenger who is stopped from livestreaming their traffic stop.” Id. at 679.
Pursuant to Sharpe v. Winterville Police Dep't, the undersigned need not go beyond its finding, discussed below, that plaintiff's claim does not satisfy the second prong of the qualified immunity analysis - that the alleged violation was of a “clearly established right.” The undersigned, therefore, does not address whether a prohibition of taking photographs in a DMV facility without permission represents a violation of a constitutional right as a general matter under the first prong of such analysis. Cf. Dewitt, 2023 WL 2731865, at *2 (“[T]he question is not whether Dewitt had a generalized or abstract right to conduct so-called ‘First Amendment audits'[; rather t]he question instead is whether Dewitt had a clearly established right to record video in a probation office's lobby without the office's permission.”).
Plaintiff has not provided any authority in this circuit, nor is the undersigned aware of any authority, indicating that taking photographs in a DMV facility without permission constituted a “clearly established right” or that an official asking an individual to leave the DMV facility because he violated such a policy and then calling the police when he failed to do so violated a “clearly established right.”
In plaintiff's response in opposition to defendants' motion to dismiss ([DE-9] at 3) and his reply to defendants' response in opposition to plaintiff's motion for summary judgment ([DE-19] at 2), he cites cases purportedly in support of his position on qualified immunity, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), and Frasier v. Evans, 992 F.3d 1003, 1021 (10th Cir. 2021).
As an initial matter, the undersigned notes that neither of the cited authorities are from this circuit. See Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (“In determining whether a right was clearly established at the time of the claimed violation, ‘courts in this circuit [ordinarily] need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case arose.'” (alterations in original) (quoting Jean v. Collins, 155 F.3d 701, 709 (4th Cir. 1998) (en banc)).
Second, both cases cited by plaintiff involved individuals who had filmed arrests made by police in public spaces, which benefit from particularly robust First Amendment protections. Glik, 655 F.3d at 84 (“Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed'”) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)); Frasier, 992 F.3d at 1008 (“Plaintiff-Appellee Levi Frasier video-recorded Denver police officers using force while arresting an uncooperative suspect in public.”). Conversely, “the inside of a DMV branch office is a nonpublic forum,” where “to pass constitutional muster the challenged prohibition need only be reasonable and viewpoint neutral.” Avedisian v. Holcomb, 853 F.Supp. 185, 188 (E.D. Va. 1994) (first citing Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992), and then citing Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37, 49 (1983)).
Moreover, while the First Circuit found in Glik that police officers did not have qualified immunity against a § 1983 claim for violating Glik's First Amendment rights by arresting him for filming the police in public, that court expressly distinguished its holding from an unpublished per curiam opinion in this circuit, which held “that the ‘right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.'” Glik, 655 F.3d at 79, 85 (quoting Szymecki v. Houck, 353 Fed.Appx. 852 (4th Cir. 2009)). While “[u]npublished opinions[, such as Szymecki] are not binding precedent in this circuit,” Forrest v. Kijakazi, No. 20-1985, 2022 WL 1090254 (4th Cir. Apr. 12, 2022), the Fourth Circuit subsequently held in Sharpe in a published opinion, as discussed above, that “it was not clearly established that the First Amendment prohibited an officer from preventing a passenger who is stopped from livestreaming their traffic stop.” 59 F.4th at 679.
Frasier v. Evans, the other case cited by plaintiff, appears to contradict plaintiff's position. In that case, the Tenth Circuit found that “the [lower] court should have granted [the defendants] immunity once it held that judicial precedent did not clearly establish in August 2014 Mr. Frasier's alleged First Amendment right to record them performing their official duties in public spaces.” Frasier, 992 F.3d at 1015.
Accordingly, even viewing plaintiff's allegations in the light most favorable to him, there is no indication that Ms. Roberson violated a clearly established right by enforcing the North Carolina DMV filming and photography policy, asking plaintiff to leave for violating such a policy and then calling the police when he failed to do so. Cf. Dewitt, 2023 WL 2731865, at * 2 (“Because it is plain here that [plaintiff's] allegedly absolute right to film in the probation-office lobby was not clearly established, [the probation officer defendants] are entitled to qualified immunity from [plaintiff's] § 1983 damages claim.”).
Accordingly, the undersigned finds that Ms. Roberson was entitled to qualified immunity in her individual capacity, and the undersigned RECOMMENDS that all claims against her be DISMISSED.
Because this court does not have jurisdiction over defendants based on their sovereign or qualified immunity, respectively, the undersigned does not take up of the merits of defendants' Rule 12(b)(6) arguments under §§ 1983 and 1985.
D. Additional motions
In light of the undersigned's recommendation that plaintiff's complaint be dismissed, the undersigned further RECOMMENDS that plaintiff's motion for default [DE-10] and motion for summary judgment [DE-11] be DENIED AS MOOT.
With respect to plaintiff's motion for default, the undersigned notes that contrary to plaintiff's argument that defendants defaulted by their “failure to denied [sic] the allegations in the complaint” ([DE-10] at 1), under Rule 12(a)(1)(A)(i), “serving a motion under [Rule 12] alters the period [for filing, inter alia, a reply] as follows: . . . if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action[.]” Fed.R.Civ.P. 12(a)(4)(A). As plaintiff failed to file a server's affidavit of service, he has failed to show how any responsive pleading was untimely. Accordingly, defendants did not default by filing their motion to dismiss [DE-5] on January 24, 2024.
III. CONCLUSION
For the reasons stated above, the undersigned RECOMMENDS that defendants' motion to dismiss [DE-5] be GRANTED and that plaintiff's complaint [DE-1] be DISMISSED. In light of the undersigned's recommendation that plaintiff's complaint be dismissed, the undersigned further RECOMMENDS that plaintiff's motion for default [DE-10] and motion for summary judgment [DE-11] be DENIED AS MOOT.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until August 12, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules); Local Civ. R. 72.4(b). Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).