Opinion
C. A. 0:21-98-MGL-SVH
04-12-2021
Eddie Washington, Plaintiff, v. U.S. Department of Homeland Security, Alejandro Mayorkas in his Official Capacity, U.S. Immigration and Customs Enforcement, Tae D. Johnson in his Official Capacity, Attorney General, York County Sheriff's Office, Sergeant Nicholas Schifferle as an employee of York County Sheriff's Office, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
Eddie Washington (“Plaintiff”) filed this suit on January 11, 2021, against the U.S. Department of Homeland Security (“DHS”); Alejandro Mayorkas (“Mayorkas”), in his official capacity as DHS Secretary; U.S. Immigration and Customs Enforcement (“ICE”); Tae D. Johnson (“Johnson”), in his official capacity as the acting director of ICE; the Attorney General; York County Sheriff's Office (“YCSO”); and YCSO employee Sergeant Nicholas Schifferle (“Schifferle”). In his amended complaint, Plaintiff asserts eleven causes of action that can be divided into three groups: (1) claims pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights (first, second, fourth, sixth, and eighth causes of action), (2) claims for violations of the South Carolina Constitution (third, fifth, seventh, and ninth causes of action), and (3) state-law claims for civil conspiracy (tenth cause of action) and conversion/claim and delivery (eleventh cause of action).
Pursuant to Fed.R.Civ.P. 25(d), Mayorkas and Johnson have been substituted as defendants for Chad F. Wolf, former acting secretary of DHS, and Tony Pham, former acting director of ICE, respectively. [See ECF No. 33 at 2-3].
This matter comes before the court on the motion to dismiss filed by DHS, Mayorkas, ICE, Johnson, and the Attorney General, with the Attorney General acting by and through the Acting United States Attorney for the District of South Carolina (collectively the “Federal Defendants”). [ECF No. 27]. The Federal Defendants' motion to dismiss having been fully briefed [see ECF No. 31], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this case has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant the Federal Defendants' motion to dismiss.
I. Factual Background
Plaintiff alleges that on or about July 16, 2020, he was travelling south on Interstate 77 when he was stopped by Schifferle. [ECF No. 12 ¶ 14]. Schifferle advised Plaintiff he was being stopped for failure to use headlights when required. Id. ¶ 15. For an unknown reason, Schifferle called a drug dog out to the scene. Id. ¶ 16. Although no drugs were found, $55,140 was found in Plaintiff's vehicle and seized at the time of the traffic stop. Id. ¶¶ 16-17.
Plaintiff was not arrested and alleges that at no time prior, during, or after the seizure was he engaged in unlawful activity. Id. ¶ 18. The only citation he received was for failure to use headlights when required pursuant to S.C. Code Ann. § 56-05-4450-a misdemeanor with a potential penalty of up to 30 days in jail and/or a fine up to $25. Id. ¶ 19.
Plaintiff alleges ICE is now in possession and control of the seized money, but was not involved in the traffic stop or present at the time of the seizure. Id. ¶¶ 20-21. Plaintiff alleges that, according to ICE, the money was seized pursuant to 19 U.S.C. § 981(a)(1), 18 U.S.C. § 1956(a)(1), and 18 U.S.C. § 1961 for conducting a financial transaction to promote a specified unlawful activity, but no unlawful activity has been alleged or specified. Id. ¶ 22.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Be l Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
1. Claims Brought Pursuant to 42 U.S.C. § 1983
To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that he was injured by “the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color” of state law. See 42 U.S.C. § 1983; see genera ly 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014).
For a party to be a state actor subject to suit under § 1983:
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
Here, Plaintiff has provided no allegations showing that the Federal Defendants are not as they are identified, namely officials, entities, and agencies of the federal government. Additionally, the court may take judicial notice that the Federal Defendants are federal agencies and agents and act under the color of federal law. See Fed. R. Evid. 201(b) (providing that a fact is appropriate for judicial notice if it is “not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); see also Edgerton v. George, C/A No. 1:10-237, 2011 WL 815693, at *6 (W.D. N.C. Feb. 4, 2011) (“The undersigned takes judicial notice that the United States Department of Veterans Affairs is a federal agency, and its employees act under federal law. Plaintiff cannot, therefore, state a cause of action under Section 1983 against the United States.”), report and recommendation adopted, C/A No. 1:10-237, 2011 WL 795537 (W.D. N.C. Feb. 25, 2011).
Plaintiff argues, without further explanation or support, that Mayorkas and Johnson are state actors because they are elected officials and act on behalf of DHS and ICE. [See ECF No. 31 at 3]. Plaintiff further argues that, if the court does not agree, he has sufficiently alleged “joint activity” between the Federal Defendants and state officials sufficient to support liability under § 1983 in that the “federal entities, especially Defendant ICE was not involved with the traffic stop and has unlawfully retained Plaintiff's property by and through conspiring with the other Defendants.” Id. at 3-4 (citing Kletschka v. Driver, 411 F.2d 436, 448 (2d Cir. 1969) (“We can see no reason why a joint conspiracy between federal and state officials should not carry the same consequences under § 1983 as does joint action by state officials and private persons.”)).
A civil conspiracy under 42 U.S.C. § 1983 requires that a plaintiff prove: (1) defendants acted jointly in concert; (2) that some overt act was done in furtherance of the conspiracy; and (3) the conspiracy resulted in the deprivation of a constitutional right. See Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996). “However, a bare assertion of a ‘conspiracy' is insufficient, and a plaintiff must plead enough factual matter to plausibly suggest that an agreement was made to deprive them of their constitutional rights.” Hudson v. Richland Hosp., C/A No. 4:19-1499-SAL-TER, 2020 WL 7249874, at *4 (D.S.C. Sept. 16, 2020) (citations omitted), report and recommendation adopted sub nom. Hudson v. Smith, C/A No. 3:19--1499-SAL, 2020 WL 6707609 (D.S.C. Nov. 16, 2020).
The facts Plaintiff alleges-that his property was taken by a state actor but is now in the possession of ICE-are insufficient to state a claim that the Federal Defendants reached a mutual understanding with any state actors to deprive Plaintiff of his constitutional rights. See also, e.g., Ruttenberg v. Jones, 283 Fed.Appx. 121, 132 (4th Cir. 2008) (“The complaint makes the bare, conclusory allegation that the defendants conspired to violate his constitutional rights and that the conspiracy culminated in the fabricated testimony. No. common purpose is alleged and nothing beyond conclusory allegations of conspiracy are made. We therefore affirm the dismissal of the § 1983 conspiracy claim.”); see also Tobey v. Napolitano, 808 F.Supp.2d 830, 847 (E.D. Va. 2011), aff'd but criticized sub nom. Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013) (“Plaintiff's allegations do not suggest any federal-state conspiracy or concerted action sufficient to state a claim against the Federal Defendants under § 1983.”).
Accordingly, the undersigned recommends granting the Federal Defendants' motion to dismiss Plaintiff's federal claims brought pursuant to 42 U.S.C. § 1983.
2. South Carolina Constitutional Claims
“The United States, as sovereign, is immune from suit save as it consents to be sued . . . .” United States v. Sherwood, 312 U.S. 584, 586 (1941); see also Frahm v. United States, 492 F.3d 258, 262 (4th Cir. 2007). Sovereign immunity extends to the federal government's agencies and officials, as well. See, e.g. F.D.I.C. v. Meyers, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). The government's waiver of immunity must be construed strictly in favor of the sovereign, making it “the plaintiff's burden to show that an unequivocal waiver of sovereign immunity exists and that none of the statute's waiver exceptions apply to his particular claim.” Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005) (internal citations omitted).
The Federal Defendants argue they have sovereign immunity from Plaintiff's suit for violation of the South Carolina Constitution in that no waiver of this immunity for any of the Federal Defendants exists in any statute. [See ECF No. 27 at 8]. In response, Plaintiff does not argue otherwise, but, instead, argues that sovereign immunity should not protect the Federal Defendants. [ECF No. 31 at 5]. Plaintiff's argument is insufficient to carry his burden to show an unequivocal waiver of sovereign immunity by the Federal Defendants in this context.
Plaintiff additionally argues that “should this court find the Defendants cannot be sued for money damages, Plaintiff should have a right to proceed against the Defendants for injunctive relief, including but not limited to the return of Plaintiff's unlawfully seized property.” Id. However, here, Plaintiff is still obligated, even when seeking injunctive relief, to establish a valid waiver of sovereign immunity. See, e.g., Kight v. U.S. Dist. Ct., N. Dist. of Georgia, 681 Fed.Appx. 882, 883-84 (11th Cir. 2017) (“Kight's contention that his claims are not barred because he seeks declaratory and injunctive relief is incorrect; he must still establish a valid waiver of sovereign immunity before his claims seeking these types of relief from the federal government may go forward.”) (citing Lynch v. United States, 292 U.S. 571, 582 (1934) (“The sovereign's immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced.”)); see also United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th Cir. 2001) (“absent express provision, a court has no jurisdiction to either restrain the government from acting or compel it to act”); Armstead v. Nagin, C/A No. 05-6438, 2006 WL 3861769, at *5 (E.D. La. Dec. 29, 2006) (“Sovereign immunity similarly bars claims for injunctive, declaratory and mandamus relief against government officials in their official capacity, absent an explicit waiver of immunity”).
Based on the above, the undersigned further recommends that Plaintiff's request for declaratory relief be denied as to the Federal Defendants. [See ECF No. 12 at 13].
Accordingly, the undersigned recommends granting the Federal Defendants' motion to dismiss Plaintiff's claims for violations of the South Carolina Constitution.
3. State-Law Claims
The Federal Defendants have, likewise, not waived sovereign immunity to be sued under South Carolina state tort law for conversion or civil conspiracy. While the Federal Tort Claims Act (“FTCA”) does waive the sovereign immunity of the United States for some state torts subject to specific statutory provisions, 28 U.S.C. § 2671 et seq., Plaintiff does not bring his state tort claims pursuant to the FTCA. Even if Plaintiff had, such claims could not proceed against the Federal Defendants, but only against the United States. See 28 U.S.C. § 2679(b)(1) (stating tort “remedy against the United States . . . is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim . . .”) (emphasis added). Finally, even if Plaintiff had brought suit pursuant to the FTCA against the United States, his claims would fail because he has not exhausted his administrative remedies with the appropriate federal agencies, which is a prerequisite under the FTCA prior to filing a lawsuit. See 28 U.S.C. § 2675; see also McNeil v. United States, 508 U.S. 106, 113 (1993).
Plaintiff does not argue that he has exhausted his administrative remedies but argues, without support, that “the traditional requirements” of the FTCA should not apply given the “egregious nature of Plaintiffs tort claims.” [ECF No. 31 at 5].
Accordingly, the undersigned recommends the district judge grant the Federal Defendants' motion to dismiss Plaintiffs claims for civil conspiracy and conversion. III. Conclusion and Recommendation For the foregoing reasons, the undersigned recommends the district judge grant the Federal Defendants' motion to dismiss. [ECF No. 27].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).