Bellamy v. Borders

• Decision Date: 22 November 1989
• Docket Number: Civ. A. No. 4:89-1504-15.
• Citation: 727 F. Supp. 247
• Court: U.S. District Court — District of South Carolina
• Parties: Roger Dean BELLAMY, d/b/a Garden City Seafood, and Eastern Shore Shellfish, Inc., Plaintiff, v. Lt. R.C. BORDERS and Maurice Pruitt, Both Individually, and as Agents and/or Servants of the Department of Wildlife and Marine Resources, Kenneth B. Moore, Individually, and as an Agent and/or Servant of the Department of Health and Environmental Control, Department of Wildlife and Marine Resources, the Department of Health and Environmental Control, and The United States of America, Defendants.

727 F. Supp. 247

Roger Dean BELLAMY, d/b/a Garden City Seafood, and Eastern Shore Shellfish, Inc., Plaintiff, v. Lt. R.C. BORDERS and Maurice Pruitt, Both Individually, and as Agents and/or Servants of the Department of Wildlife and Marine Resources, Kenneth B. Moore, Individually, and as an Agent and/or Servant of the Department of Health and Environmental Control, Department of Wildlife and Marine Resources, the Department of Health and Environmental Control, and The United States of America, Defendants.

Civ. A. No. 4:89-1504-15.

United States District Court, D. South Carolina, Florence Division.

November 22, 1989.

John R. Clarke, William Isaac Diggs, Law Offices of John R. Clarke, North Myrtle Beach, S.C., for plaintiff.

L. Sidney Connor, IV, P.F. Luke Hughes, Nelson, Mullins, Riley & Scarborough, Myrtle Beach, S.C., for defendants.

ORDER

HAMILTON, District Judge.

Plaintiff brings the present action alleging that his constitutional rights to due process were violated incidental to his arrest and prosecution by state and federal authorities. The original defendants included two state agencies, three state law enforcement officers, the National Marine Fishery Service, two federal law enforcement officers, and the United States. Plaintiff seeks monetary damages in his § 1983 claim. Plaintiff also alleges pendent claims of malicious prosecution, civil conspiracy, and libel and slander. The matter is before the court on the state defendants' motion to dismiss. Rule 12(b), Fed. R.Civ.Proc.¹

On November 6, 1986, Roger Dean Bellamy (Bellamy) was indicted by a Federal Grand Jury on charges of buying and selling clams in interstate commerce knowing that the clams were sold in violation of DHEC Regulation 61-47 (4.40, 4.41); S.C. Code Ann. § 44-1-150; 16 U.S.C. §§ 3372(a)(2)(A) and 3373(d)(1)(B); and 18 U.S.C. § 2. In the same indictment he was charged with conspiracy to sell in interstate commerce shellfish that he knowingly purchased without proper identification tags in violation of the laws and regulations of the State of South Carolina. On March 4, 1987, Bellamy, with the advice of legal counsel, pled guilty to two of the four counts of the indictment, and was given a two year suspended sentence with probation for five years. See United States v. Dean Bellamy, Crim. No. 86-296 (D.S.C. Charleston Div.1987).

On or about November 7, 1986, one day after Bellamy was indicted on federal charges, defendant Borders, an officer of the South Carolina Department of Wildlife and Marine Resources, signed an affidavit which led to Bellamy's arrest pursuant to an arrest warrant charging him with selling clams and other shellfish without a license on 211 occasions in violation of S.C. Code Ann. § 50-17-450. Thereafter, the charges were either dismissed or ended in a jury acquittal. Complaint, paras. 8 and 10.

On or about November 12, 1986, defendant Moore, an officer of the South Carolina Department of Health and Environmental Control, signed four affidavits which led to Bellamy's arrest pursuant to four arrest warrants charging him with buying improperly tagged or identified bags of shellfish in violation of DHEC Regulation 61-47, § 4.40. Thereafter, three of the warrants were dismissed by the court in Bellamy's favor and one warrant resulted in a jury acquittal. Complaint, paras. 14, 15, and 16.

The state defendants contend that the present complaint fails to state a claim pursuant to 42 U.S.C. § 1983 (§ 1983) against the state agencies and state officials because they are not "persons" within the meaning of that statute. Additionally, the state defendants assert that eleventh amendment immunity bars the present suit. The state defendants also allege that the § 1983 claim against the three individual state officers should be dismissed on grounds of qualified immunity. Finally, the state defendants maintain that the pendent claims asserted against the state agencies and state officials are time barred by either S.C.Code Ann. § 15-78-100 or § 15-3-550.

Plaintiff opposes the state defendants' motion to dismiss on grounds that the state defendants waived their eleventh amendment immunity by removing a previous suit filed in state court which involved the same facts and circumstances as the present action (Civil Action 4:XX-XXXX-XX). Plaintiff apparently argues that should the court find that the state defendants have in fact waived their eleventh amendment immunity, that they are, therefore, also rendered a "person" for purposes of § 1983. Alternatively, plaintiff maintains that the state defendants have waived their immunity under the South Carolina Tort Claims Act, S.C.Code Ann. § 15-78-10, et seq., because § 15-78-70 of that Act allows state employees to be indemnified by the state for acts committed within the scope of their employment. Plaintiff also argues that his claims will be time barred if the state defendants' motion is granted. Assuming the court determines the state agencies are entitled to eleventh amendment immunity, plaintiff nonetheless asserts that the individual state officers are not immune under S.C.Code Ann. § 15-78-70(b) for acts committed outside the scope of their employment. Lastly, plaintiff submits that the statute of limitations has not run on his pendent claims arising under the South Carolina Tort Claims Act.

The plaintiff purports to bring his federal claims under § 1983, which provides:

every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any person of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.

State Agencies

Plaintiff seeks money damages under § 1983 against two state agencies in his complaint, the South Carolina Department of Wildlife and Marine Resources and the South Carolina Department of Health and Environmental Control. The questions presented to this court, therefore, are whether these state agencies are "persons" for purposes of § 1983 and whether these agencies have waived their immunity from suit in federal court under the eleventh amendment to the United States Constitution.

In Will v. Michigan Department of State Police, ___ U.S. ___, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that neither a State nor its officials acting in their official capacities are "persons" for purposes of damages actions brought under § 1983. Thus, it would appear that the present § 1983 damages claim is not cognizable against the two state agencies.

Nevertheless, plaintiff relies on Della Grotto v. State of Rhode Island, 781 F.2d 343 (1st Cir.1986) for the proposition that where a state waives its eleventh amendment immunity it also becomes a "person" for purposes of § 1983. Plaintiff's reliance on the Della Grotto decision is misplaced, however, because its reasoning has been effectively repudiated by the Supreme Court's decision in Will. As an initial matter, the Della Grotto court itself conceded that the issue of eleventh amendment immunity and the determination of whether a state is a person under § 1983 represent two distinct issues. The Will Court also explicitly concluded that the scope of eleventh amendment immunity and the scope of § 1983 were different issues. Will, 109 S.Ct. at 2309. The procedural posture of the Will case also implicitly reveals that the Court's decision was not premised entirely upon eleventh amendment immunity. The Will case arose through the Michigan state court system — where eleventh amendment immunity was not even an issue. Perhaps Justice Brennen, in his dissent in Will, best characterized the irrelevancy of a state's waiver of eleventh amendment immunity to the issue of whether a state is a person for purposes of § 1983. He asserted:

to describe the breadth of the Court's holding is to demonstrate its unwisdom. If States are not "persons" within the meaning of § 1983, then they may not be sued under that statute regardless of whether they have consented to suit. Even if, in other words, a State formally and explicitly consented to suits against it in federal or state court, no § 1983 plaintiff could proceed against it because States are not within the statute's category of possible defendants.

109 S.Ct. at 2319. Consequently, the present § 1983 claim is not cognizable against the defendant state agencies regardless of whether they have waived their immunity to suit under the eleventh amendment.

Even were the defendant state agencies subject to suit under § 1983, it is clear that these defendants are immune from damages suits in a federal forum. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). See Will, 109 S.Ct. at 2309. Consequently, the defendant state agencies are immune from suit in federal court unless the state has consented to be sued. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978) (per curiam).

Plaintiff argues that the subject state agencies waived their immunity by virtue of actions they took in the previous state court action involving the same facts and circumstances, which was ultimately dismissed, without prejudice, upon joint stipulation of the parties subsequent to its removal to federal court. In this previous action, the subject state agencies joined in the petition for removal of that case from state court, filed an answer, and demanded a jury trial.

Nonetheless, the defendant state agencies have not explicitly, or implicitly through their conduct, waived their immunity from suit in federal court in the present suit, which was originally filed in federal court, for several reasons. First, the State of South Carolina...