Cribb v. Pelham

• Decision Date: 24 November 1982
• Docket Number: Civ. A. No. 81-2749-15.
• Citation: 552 F. Supp. 1217
• Court: U.S. District Court — District of South Carolina
• Parties: Daniel P. CRIBB and Barbara Cribb, Plaintiffs, v. L.B. PELHAM, individually and as a Representative of the South Carolina Highway Patrol; W.H. Beckwith, individually and as Representative of the South Carolina Highway Patrol; the South Carolina Highway Patrol, an independent body; W. Harry Conner, both individually and as a Representative of the Florence County Solicitors Office; Dudley Saleeby, both individually and as a Representative of the Florence County Solicitors Office; and the County of Florence, State of South Carolina, Defendants.

552 F. Supp. 1217

Daniel P. CRIBB and Barbara Cribb, Plaintiffs, v. L.B. PELHAM, individually and as a Representative of the South Carolina Highway Patrol; W.H. Beckwith, individually and as Representative of the South Carolina Highway Patrol; the South Carolina Highway Patrol, an independent body; W. Harry Conner, both individually and as a Representative of the Florence County Solicitors Office; Dudley Saleeby, both individually and as a Representative of the Florence County Solicitors Office; and the County of Florence, State of South Carolina, Defendants.

Civ. A. No. 81-2749-15.

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

November 24, 1982.

James L. Bell, Columbia, S.C., for plaintiffs.

C. Tolbert Goolsby, Jr., and James M. Holly, Columbia, S.C., Peter D. Hyman, Florence, S.C., Joseph C. Coleman, Columbia, S.C., for defendants.

ORDER

HAMILTON, District Judge.

The complaint herein purports to state seven causes of action against six defendants for damages sustained by reason of the alleged unlawful arrest and subsequent state prosecution of plaintiff Daniel P. Cribb. Mr. Cribb asserts claims for the alleged deprivation of rights secured by 42 U.S.C. §§ 1983, 1985 and 1988 and the Sixth and Fourteenth Amendments to the United States Constitution; and, along with Mrs. Cribb, seeks to impose liability on defendants based upon pendent state law claims sounding in tort.

Before the court for ruling at this time are three motions. First, by motion filed January 12, 1982, the defendant South Carolina Highway Patrol has moved this court to dismiss the complaint as against it pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Second, by motion filed January 19, 1982, the defendants Dudley Saleeby and W. Harry Conner have moved this court to dismiss the complaint as against them pursuant to Rule 12(b)(6). Finally, by motion filed February 15, 1982, the defendant County of Florence, State of South Carolina, has moved this court to dismiss the complaint as against it pursuant to Rule 12(b)(6) or, in the alternative, for summary judgment in its favor pursuant to Rule 56. The respective parties have presented to the court memoranda of authorities in support of and in opposition to the various motions, and oral arguments were heard on July 27, 1982.

MOTION OF DEFENDANT PATROL TO DISMISS

This first matter is before the court on a motion to dismiss filed by defendant South Carolina Highway Patrol (hereinafter Patrol) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Patrol, in its motion and supporting memorandum, asserts two grounds for dismissal. First, this court lacks jurisdiction over the subject matter of the action as against the Patrol in that the Eleventh Amendment to the United States Constitution bars this suit. Secondly, the complaint here fails to state a claim against the Patrol upon which relief can be granted in that the State of South Carolina or its alter ego, the Patrol, is not a "person" within the meaning of 42 U.S.C. § 1983. Based upon the reasons and authorities to be discussed below, the court is of the opinion that this action as against the defendant Patrol should be dismissed.¹

Defendant Patrol is the law enforcement division of the South Carolina Department of Highways and Public Transportation (hereinafter Department), which is an administrative agency of the government of the State of South Carolina. Sections 23-5-10 (Patrol) and 57-3-10 (Department) of the Code of Laws of South Carolina 1976, as amended. The Patrol, as a division of the Department, functions as an arm of state government and is an alter ego of the State of South Carolina. Sections 23-5-10 and 57-3-10, supra; United States v. State of South Carolina, 445 F.Supp. 1094, 1100 (D.S. C.1977), aff'd, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978); Simmons v. South Carolina State Highway Department, 195 F.Supp. 516 (D.S.C.1961). If this action as against the Patrol should proceed to trial and the plaintiffs prevail, their recovery would be paid from public funds in the state treasury. Accordingly, this court concludes that the plaintiffs' action herein against the Patrol is in reality a suit against the State of South Carolina.

The defendant Patrol contends that it is absolutely immune from suit in this case by reason of the Eleventh Amendment to the United States Constitution which states:

The 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.

The Supreme Court has held that, pursuant to the Eleventh Amendment, a state is immune from suits brought in federal courts by its own citizens as well as by citizens of another state or citizens or subjects of any foreign state. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Southern Railway Co. v. South Carolina State Highway Department, 246 F.Supp. 435 (D.S.C.1965). See also Cory v. White, ___ U.S. ___, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982). Moreover, it is well settled that the Eleventh Amendment precludes a suit against a state agency, entity or institution that functions as an arm or alter ego of the state. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); United States v. State of South Carolina, 445 F.Supp. 1094, 1100 (D.S.C.1977), aff'd, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978); Belcher v. South Carolina Department of Corrections, 460 F.Supp. 805 (D.S. C.1978); Gourdine v. Ellis, 435 F.Supp. 882 (D.S.C.1977).

The immunity afforded to the states by the Eleventh Amendment can be overcome if the state waives its constitutional immunity and consents to suit; or, with respect to the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution, Congress abrogates the state's immunity pursuant to its authority to enforce the substantive provisions of those amendments "by appropriate legislation." Amendment XIII, Section 2; Amendment XIV, Section 5; Amendment XV, Section 2. First, the doctrine of sovereign immunity prevails in South Carolina. Belue v. City of Spartanburg, 276 S.C. 381, 280 S.E.2d 49 (1981). Clearly, the State of South Carolina has not waived its immunity regarding claims such as the ones brought by plaintiffs here. Secondly, Congress did not exercise its power to abrogate the state's Eleventh Amendment immunity when it enacted 42 U.S.C. §§ 1983 and 1985. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir.1981); Gourdine v. Ellis, 435 F.Supp. 882 (D.S.C.1977). In summary, absent its consent to suit or federal legislation abrogating its Constitutional immunity, neither the State nor its alter ego, the Patrol, is subject to suit under 42 U.S.C. § 1983 or 1985.

Additionally, the complaint fails to state a claim upon which relief can be granted because the defendant Patrol is not a "person" within the meaning of 42 U.S.C. § 1983. This court is mindful of the Supreme Court decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), holding that local governmental units are liable as "person" within the meaning of 42 U.S.C. § 1983. However, the definition of "persons" has not been found to include states, and therefore the defendant Patrol is not amenable to suit here.

In that the court's ruling herein dismisses the First, Second and Third Causes of Action under Sections 1983 and 1985 as against the defendant Patrol, plaintiffs' claim for attorney's fees under 42 U.S.C. § 1988 is also dismissed.

Furthermore, in light of the dismissal of the federal causes of action as against the defendant Patrol, this court is deprived of pendent jurisdiction for proceeding against the defendant Patrol regarding the claims alleged in the Fourth, Fifth, Sixth and Seventh Causes of Action, which claims are brought pursuant to the laws of the State of South Carolina. Poe v. Sigmon, 564 F.2d 1093, 1096 (4th Cir.1977).

MOTION OF DEFENDANTS SALEEBY AND CONNER TO DISMISS

Also before the court is a motion to dismiss filed by defendants Saleeby and Conner pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants Saleeby and Conner, in their motion and supporting memoranda, assert two grounds for dismissal. First, the complaint fails to state a claim against them upon which relief can be granted in that prosecuting authorities are entitled to absolute immunity from suits alleging the type of misconduct complained of by plaintiffs here. Secondly, the complaint fails to state a claim against them upon which relief can be granted in that 42 U.S.C. § 1985 does not provide a basis for a cause of action alleging the type of misconduct complained of here. Based upon the reasons and authorities discussed below and viewing the complaint in the light most favorable to the plaintiffs and drawing every reasonable inference therefrom, it is the opinion of this court that the arguments of defendants Saleeby and Conner are well taken and the complaint as against them should be dismissed.

The complaint herein purports to state seven causes of action against numerous defendants, among whom are the Solicitor for the Twelfth Judicial Circuit for the State of South Carolina, Dudley Saleeby, and the Assistant Solicitor of said judicial circuit, W. Harry Conner. As against these two defendants, plaintiffs allege that Daniel Cribb's state prosecution was not "brought to trial as expeditiously as possible" and that there was an attempt "to conceal and ignore the intentional, reckless, and unprovoked attack on Plaintiff, Mr. Cribb." Specifically, the pertinent allegations of fact set forth in the complaint are as follows:

17. Despite numerous and instant requests by the Plaintiff, Mr. Cribb, and counsel to the Solicitor's

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