Green v. Dorchester County Sheriff OfficeGreen v. Dorchester County Sheriff Office
This matter is before the court on Magistrate Judge Mary Gordon Baker’s report and recommendation (“R&R“), ECF No. 44, that the court grant in part and deny in part defendants Ray Nash (“Nash“), Luther Carl Knight (“Knight“), Alan McCrory Wilson (“Wilson“), Harley Littleton Kirkland (“Kirkland“), Mark Keel (“Keel“), Adam L. Whitsett (“Whitsett“), and Thomas Ahearn, III’s (“Ahearn“) (collectively, “defendants“) motion to dismiss, ECF No. 19. For the reasons set forth below, the court partially adopts and partially departs from the R&R, grants in part and denies in part defendants’ motion,
I. BACKGROUND
The R&R ably recites the facts, and the parties do not object to the R&R’s recitation thereof. Therefore, the court will only briefly summarize material facts as they appear in the R&R for the purpose of aiding an understanding of the court’s legal analysis.
In 1999, plaintiff Jonathan Green (“Jonathan“) pleaded “no contest” to three sexual offenses in the Fairfax County, Virginia juvenile court. Jonathan was fifteen years old at the time, and he was sentenced to thirty days in juvenile detention, mandatory counseling, and probation. In 2000, Jonathan and his family moved to Dorchester County, South Carolina while he was still on probation. Upon arriving in South Carolina, the Dorchester County Sheriff’s Office informed Jonathan that he was required to be fingerprinted, to be photographed, and to register as a sex offender for the rest of his life. According to the complaint, no one had informed Jonathan’s family of these requirements prior to their move. Nathaniel Green (“Nathaniel“), Jonathan’s father, inquired about whether Jonathan could simply move back to Virginia, but the Sheriff’s Office responded that if Jonathan did so, they would put a warrant out for his arrest and declare him a fugitive of the state. The Sherriff’s Office subsequently placed Jonathan on the public sex offender registry in South Carolina.
In 2015, Jonathan decided to search his name on the sex offender registry and discovered that his record was no longer available to view. Nathaniel, who at some point secured employment at the Dorchester County Sheriff’s Office jail, called his direct
On May 3, 2021, Jonathan, Nathaniel,1 and JGCRE (together, “plaintiffs“), proceeding pro se, initiated this action against the Dorchester County Sheriff’s Office, the South Carolina Law Enforcement Division (“SLED“), and defendants in their official capacities. ECF No. 1. On July 15, 2021, plaintiffs filed an amended complaint. ECF No. 8, Amend. Compl. Pursuant to the amended complaint, now the operative complaint, plaintiffs voluntarily dismissed the Dorchester County Sheriff’s Office and SLED as defendants and asserted causes of action for: (1) violation of Jonathan’s Fourth Amendment right to privacy, (2) violation of Jonathan’s Fifth Amendment right to free movement, (3) violation of Jonathan’s Eighth Amendment right to freedom from cruel and unusual punishment; (4) violation of Jonathan’s Fourteenth Amendment rights, and (5) wrongful denial of plaintiffs’ requests for information under the Freedom of
On October 7, 2021, defendants filed a motion to dismiss the complaint in its entirety. ECF No. 19. On November 5, 2021, plaintiffs responded in opposition. ECF No. 34. On December 17, 2021, Magistrate Judge Baker issued the R&R, recommending the court grant in part and deny in part the motion to dismiss. ECF No. 44. On January 4, 2022, Keel, Whitsett, and Ahearn filed their objections to the R&R. ECF No. 46. Plaintiffs did not respond, and the time to do so has now elapsed. On January 6, 2022, plaintiffs filed their objections to the R&R. ECF No. 48. On February 8, 2022, plaintiffs, with leave of the court, supplemented those objections with amended objections to the R&R. ECF No. 57-1. Defendants responded to plaintiffs’ objections on February 22, 2022, ECF No. 60, and plaintiffs replied on February 28, 2022, ECF No. 62. As such, the matter is now ripe for the court’s review.
II. STANDARD
This court is charged with conducting a de novo review of any portion of the Magistrate Judge’s R&R to which specific, written objections are made.
A
Defendants move to dismiss all claims against them for lack of subject-matter jurisdiction and failure to state a claim. The Magistrate Judge addressed defendants’ motion by arranging plaintiffs’ claims into two groups: (1) claims brought under
A. Section 1983 Claims
In the amended complaint, plaintiffs assert various claims arising out of violations of Jonathan’s constitutional rights. In their motion to dismiss, defendants argued that each of the claims is barred by sovereign immunity. The Eleventh Amendment bars suits by citizens against non-consenting states brought either in state or federal court. See Alden v. Maine, 527 U.S. 706, 712 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 10 (1890). Such immunity extends to arms of the state, including a state’s agencies and instrumentalities and employees. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–02 (1984); Regents of the
Here, plaintiffs brought their
The court finds that even after a de novo review of the issue, Nash and Knight are properly categorized as state officials and are immune from suits brought against them in their official capacities. Plaintiffs are correct that typically, courts in this circuit apply a four-factor test, as announced in Ram Ditta, to determine whether a governmental entity is an arm of the state for Eleventh Amendment purposes. Those factors are: (1) “whether
Courts following Ram Ditta have consistently found that in South Carolina, sheriffs are agents of the state. For example, in Doe 202a v. Cannon, 2018 WL 317818, at *4 (D.S.C. Jan. 8, 2018). In analyzing the Ram Ditta factors,2 the court in Cannon looked to the decisions of other courts that had analyzed the relationship between county sheriff’s offices and the state and noted that those courts similarly found that sheriff’s offices were arms of the state. See id. at *3–4 (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) and Gulledge v. Smart, 691 F. Supp. 947, 954–55 (D.S.C. 1988)); see also Green v. S.C. Law Enf’t Div., 2018 WL 1701982, at *3 (D.S.C. Mar. 5, 2018), report and recommendation adopted, 2018 WL 1697300 (D.S.C. Apr. 6, 2018) (“[T]he Fourth Circuit has considered the role of sheriffs in the state of South Carolina and has specifically determined that, in their official capacities, South Carolina’s sheriffs are immune from federal lawsuits . . . .“). Although plaintiffs attempt to distinguish the
Second, plaintiffs object to the R&R by arguing that even if Nash and Knight were considered state officials, they were “acting on behalf of Dorchester County as county policy makers” when they made the decision to keep Jonathan on the state sex offender registry. ECF No. 48 at 13. In support of their argument, plaintiffs aver that the Dorchester County sheriff created a local policy that “did not necessarily apply to the rest of the state” and attempt to illustrate their argument by claiming that had Jonathan initially moved to Greenville County, for instance, the Greenville County sheriff may have made a different decision regarding whether to place Jonathan on the public sex offender registry. Id. at 14. But plaintiffs fail to cite any authority suggesting that officials can act as arms of the state on one hand, and as members of a local municipality on the other, when performing different job functions. Indeed, such a notion is directly undermined by the aforementioned cases to have considered whether sheriffs are arms of the state for Eleventh Amendment purposes. In those cases, if a sheriff could be deemed as strictly acting on behalf of the county when performing duties that only impacted the locality, none of the sheriffs would have been deemed state officials. See Cromer, 88 F.3d at 1318 (finding that the Eleventh Amendment immunized a sheriff who fired the plaintiff from his job as a lieutenant); English, 2021 WL 4597184, at *1 (same, where a sheriff purportedly obtained coerced and false statements from the plaintiffs and falsely
Third, plaintiffs briefly argue that if the court barred Jonathan from recovering monetary damages, Jonathan would be deprived of his Fifth Amendment right to just compensation. However, plaintiffs did not raise this argument in their response to the motion to dismiss, and the court may overrule the objection on this basis alone.4 Regardless, the objection lacks merit as plaintiffs cite no authority for finding that there has been a “taking” such that the Fifth Amendment’s takings clause would apply. Plaintiffs briefly aver that Jonathan’s “information can be considered property,” and that it was “released to the public for public use.” ECF No. 48 at 20–21. Fatally, however, plaintiffs do not explain how Jonathan’s juvenile records and information constitute
Fourth, plaintiffs argue that they may sue Nash and Knight in both their official and individual capacities. As the court discussed earlier, the R&R determined that plaintiffs had sued defendants in their official capacities. Plaintiffs disagree, stating that they had intended to allege violations by defendants in both their individual and official capacities. Alternatively, they “request leave to add [Nash] and [Knight]” as defendants “in their . . . individual capacities.” ECF No. 48 at 27. The court finds that the R&R did not err in deciding that defendants were sued in their official capacities as state officials or employees. Plaintiffs do not specify whether the defendants are named in their official or individual capacities. Where a plaintiff does not so specify, “the court must examine the nature of the plaintiff’s claims, the relief sought, and the course of proceedings.” Harris v. Copeland, 2013 WL 4504764, at *5 (D.S.C. Aug. 22, 2013) (quoting Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995)). Here, the amended complaint lists each defendant’s position alongside his name in the case caption and, as the R&R noted, provides each defendant’s government contact information. Amend. Compl. at 1–2; R&R at 7, 10 n.5. As for the nature of the plaintiffs’ claims, the amended complaint largely alleges that defendants acted collectively and in accordance with their respective governmental entity’s policies, further lending support to the R&R’s conclusion. See Amend. Compl. at 4 (“The defendants were complicit after Ray Nash left office by still
Next, the court turns to the Ex parte Young exception. Under their fifth objection, plaintiffs argue that the Ex parte Young exception applies to all defendants—not just Keel, as the Magistrate Judge found. Again, the Ex parte Young exception is not implicated unless the plaintiff seeks prospective relief to remedy an ongoing violation of federal law. Here, Jonathan “seeks an immediate removal of [his] name from the sex offender registry and a letter of apology from the State of South Carolina, SLED, and the Dorchester [C]ounty Sheriffs [O]ffice.” Amend. Compl. at 6. The Magistrate Judge found that plaintiffs failed “to set forth facts sufficient for the Court to infer that ... Nash, Knight, Wilson, Kirkland, Whitsett, and Ahearn have the requisite authority to cure such violation.” R&R at 10. However, the Magistrate Judge determined that Keel, as chief of SLED, is plausibly vested with the authority to remove Jonathan from the registry and declined to dismiss him as a defendant.
Plaintiffs argue in their objections that each of the defendants meets the special relation requirement. First, plaintiffs argue that defendants possessed more than general authority to enforce the law. Specifically, they argue that Nash and Knight “create[ed] their own policy” by adding and removing Jonathan from the public sex offender registry without keeping him apprised of his status. However, this argument fails to acknowledge that although the complaint alleges Nash and Knight were involved in the alleged wrongdoing, it does not allege that Nash and Knight possess the requisite authority to cure the violation. In response to that finding by the Magistrate Judge, plaintiffs dispute the notion that a proper Ex parte Young defendant in this case must possess “the
Plaintiffs then argue that even if enforceability were a requirement, defendants all possess the ability to remedy the harm. To support this claim, plaintiffs first note that Knight could remove Jonathan from the public sex offender registry because he and his predecessor—Nash—were able to do so in 2003 and again in 2015. However, plaintiffs ignore the Magistrate Judge’s consideration of this very point; the Magistrate Judge noted that plaintiffs’ request for injunctive relief seeks complete and permanent removal of Jonathan’s name from the registry—including from the so-called private registry. Thus, even if the court were to infer from the complaint that Knight could remove Jonathan from the public registry because he had done so before, the complaint does not allege that Knight has the authority to provide the full and actual relief sought. Next, plaintiffs note
Sixth, plaintiffs argue that Wilson and Kirkland should also remain as defendants in the lawsuit, and they further request leave to amend the complaint to add Governor Henry McMaster as a defendant. Plaintiffs argue that those individuals are or would be proper defendants under Ex parte Young because South Carolina’s sex offender registry requirements are unconstitutional, and those defendants “are the chief legal officers and are in charge of enforcing the South Carolina Sex offender law.” ECF No. 48 at 26. However, the amended complaint is devoid of allegations that Wilson and Kirkland, as the attorney general and assistant attorney general, respectively, possess the ability to enforce said law. Even if plaintiffs had presented such an allegation, courts have consistently found that state officials like the attorney general are not proper parties when they merely possess a general duty to uphold state laws, such as, in the case of the attorney general, a duty to issue advisory opinions. See McBurney, 616 F.3d at 400 (finding that the attorney general had no special relation to an allegedly unconstitutional statute where he had no specific enforcement authority under the statute and merely had a general authority to issue advisory opinions); Doyle v. Hogan, 1 F.4th 249, 255 (4th Cir. 2021) (rejecting the argument that the attorney general had enforcement authority in his “role as a legal advisory” and noting that the court “must still search for more than the ‘[g]eneral authority to enforce the laws of the state’“) (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001)). Here, there is no allegation that the attorney general or members of his office have specific statutory authority to enforce the South Carolina Sex Offender Registry Act. Thus, Wilson and Kirkland are not proper Ex parte Young defendants.6
Seventh, plaintiffs argue that they have standing to sue defendants. However, defendants did not move to dismiss the complaint for a lack of standing to sue, nor did the Magistrate Judge find that plaintiffs lacked standing. Plaintiffs appear to be asserting standing in an attempt to ward off the finding that most defendants are immune from being sued and thus are not properly-named defendants in the
Finally, plaintiffs argue that the court should grant plaintiffs leave to amend the complaint to add Dorchester County as a defendant in this case. According to plaintiffs, they erroneously believed that a suit could not be brought against a nonperson entity like Dorchester County and omitted Dorchester County as a defendant from its lawsuit. Plaintiffs claim that now, after conducting further research, they realize they can bring a
B. South Carolina FOIA
Next, the court turns to plaintiffs’ FOIA claims. In the amended complaint, plaintiffs allege that the SLED defendants denied Jonathan and Nathaniel’s two “separate freedom of information requests” that sought information about “what they [we]re publishing on the sex offender registry.” Amend. Compl. ¶¶ 5. According to documents attached to the amended complaint, the requests were denied on December 10, 2019, and July 10, 2020, respectively. ECF No. 8-2 at 12, 15. Although plaintiffs did not specify, the Magistrate Judge construed the FOIA cause of action as strictly claiming a violation of the South Carolina Freedom of Information Act (“SCFOIA“) because “SLED is not subject to federal FOIA laws.” R&R at 11 (citing
Plaintiffs do not object to the Magistrate Judge’s recommendation regarding the 2019 request. After reviewing the record in this case and the applicable law, the court finds no clear error in the R&R’s finding, although the court notes that it need not reach a definitive ruling given its finding below that all FOIA claims should be dismissed. As for the claims related to the 2020 request, the SLED defendants object to the Magistrate Judge’s recommendation, arguing that SLED “should be substituted in their place as the sole party defendant for the FOIA claim pursuant to S.C. Code Ann. § 15-78-70(c).” ECF No. 46 at 2. Plaintiffs do not object to defendants’ request to replace the SLED defendants with SLED; however, upon review, the court finds it need not determine whether such a substitution would be proper because neither the SLED defendants nor SLED itself are proper defendants in this federal court action.
The SLED defendants argue that the South Carolina Tort Claims Act (“SCTCA“) governs plaintiffs’ SCFOIA cause of action because the SCTCA “is the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents.” Wells v. City of Lynchburg, 501 S.E.2d 746, 749 (S.C. Ct. App. 1998). The SLED defendants then argue that under the SCTCA, plaintiffs should have named the governmental entity—in this case, SLED—instead of its employees because “[a]n employee of a governmental entity who commits a tort while acting within the scope of
Based on the court’s review of the relevant law, it is unclear whether plaintiffs’ FOIA claims are properly considered as being brought under the SCTCA. The SCFOIA is separately codified at
As discussed earlier, the doctrine of sovereign immunity generally shields state actors from suit. Sovereign immunity is not absolute, however, and a state may waive its claim to immunity through statute. Between the two, the SCFOIA presents the clearer case that South Carolina did not waive its immunity for suits brought in federal court. The SCFOIA expressly provides that “[a] citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce the provisions of this chapter in appropriate cases if the application is made no later than one year after the date of the alleged violation.”
As such, plaintiffs’ state law FOIA claim against the SLED defendants, in their official capacities, must fail. That claim must instead be brought in state court, if at all.
IV. CONCLUSION
For the foregoing reasons, the court partially adopts and partially departs from the R&R and GRANTS IN PART and DENIES IN PART the motion to dismiss in accordance with this order.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 5, 2022
Charleston, South Carolina