Green v. Nash

• Decision Date: 17 December 2021
• Docket Number: 2:21-cv-01304-DCN-MGB
• Parties: Jonathan Green; JGCRE, Inc.; and Mildred Green, as Personal Representative Representative of the Estate of Nathaniel Green, Plaintiffs, v. Ray Nash, Former Dorchester County Sheriff; Luther Carl Knight, Current Dorchester County Sheriff; Alan McCrory Wilson, Attorney General of the State of South Carolina; Harley Littleton Kirkland, Assistant Attorney General of the State of South Carolina; Mark Keel, South Carolina Law Enforcement Division; Adam L. Whitsett, South Carolina Law Enforcement Division; and Paul Thomas Ahearn, III, South Carolina Law Enforcement Division, Defendants.
• Court: U.S. District Court — District of South Carolina

Jonathan Green; JGCRE, Inc.; and Mildred Green, as Personal Representative Representative of the Estate of Nathaniel Green, Plaintiffs,
v.
Ray Nash, Former Dorchester County Sheriff; Luther Carl Knight, Current Dorchester County Sheriff; Alan McCrory Wilson, Attorney General of the State of South Carolina; Harley Littleton Kirkland, Assistant Attorney General of the State of South Carolina; Mark Keel, South Carolina Law Enforcement Division; Adam L. Whitsett, South Carolina Law Enforcement Division; and Paul Thomas Ahearn, III, South Carolina Law Enforcement Division, Defendants.

No. 2:21-cv-01304-DCN-MGB

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

December 17, 2021

REPORT AND RECOMMENDATION

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

Plaintiffs, proceeding pro se, filed this civil action pursuant to 42 U.S.C. § 1983 and the South Carolina Freedom of Information Act (“SC FOIA”). Plaintiffs allege that Defendants violated Plaintiff Jonathan Green's (“Jonathan”) constitutional rights by placing him on the South Carolina sex offender registry as a juvenile, and by refusing to remove him from that registry. (See generally Dkt. No. 8; Dkt. No. 8-2.) Plaintiffs further allege that Defendants violated the S.C. FOIA by denying requests for information from Jonathan and his father, Nathaniel Green. (See generally Dkt. No. 8; Dkt. No. 8-2.) Currently before the Court is Defendants' Motion to Dismiss. (Dkt. No. 19.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been

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referred to the assigned United States Magistrate Judge. For the reasons set forth below, the undersigned recommends Defendants' Motion be granted in part and denied in part.

BACKGROUND

According to Plaintiffs, Jonathan “[pled] no contest to three sexual offenses in [j]uvenile court of the state of Virginia in Fairfax County” in 1999. (Dkt. No. 8-2 at 1.) He was sentenced to thirty days in juvenile detention with mandatory counseling and probation. (Id.) In 2000, Jonathan and his family moved to South Carolina. (Id.) Plaintiffs claim that Jonathan was still on probation at that time, and that “[t]he protocol was supposed to be that the state of South Carolina was going to take over the probation for the remaining time and then Jonathan would be on his way.” (Id.) Instead, the Dorchester County Sheriff's Department fingerprinted and photographed Jonathan, and placed him on the South Carolina sex offender registry. (Dkt. No. 8 at 3; Dkt. No. 8-2 at 1.) Plaintiffs claim that the Dorchester County Sheriff's Department informed Jonathan that “he would be required to register as a sex offender for the rest of his life” and that no one at the Department “[ever] called Virginia to verify the codes of VA law to compare them with the codes of S.C. law.” (Dkt. No. 8 at 3-4; Dkt. No. 8-2 at 1.) Plaintiffs further claim that “[a] few days later Sheriff Nash was made aware of the situation . . . but he still allowed Jonathan to be added to the registry because it would be too politically risky to remove [him].” (Dkt. No. 8-2 at 1.)

Plaintiffs claim that Jonathan suffered various consequences as a result of his placement on the South Carolina sex offender registry. (Dkt. No. 8 at 3-5; Dkt. No. 8-2 at 1-2.) According to Plaintiffs, Jonathan was, inter alia, “required to register on the public Oklahoma database as a sex offender for 10 years,” “detained by CBP (customs and border patrol) for 4 hours and questioned in Miami, Florida when returning home from Panama in 2014,” “forced to sleep on the floor of a one-bedroom apartment with his sister [in Virginia],” “forced . . . to move into a room

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about the size of a closet [in Virginia] where he lived for 6 years,” denied for jobs, “detained, harassed, questioned by CBP or denied entry into countries [when he traveled internationally],” “unable to meet foreign dignitaries,” delayed in receiving his Florida real estate broker's license, and unable to apply for a Georgia real estate broker's license. (Dkt. No. 8 at 3-4; Dkt. No. 8-2 at 2-4.)

Plaintiffs allege that Jonathan was removed from the South Carolina sex offender registry briefly in 2003 when “presumptively because Nathaniel Green was also a former police officer one of the people in the Sheriff's office felt sorry for Jonathan Green's situation and deleted his picture and address on the registry in South Carolina.” (Dkt. No. 8-2 at 2.) Plaintiffs further allege that Jonathan thought he was removed entirely from the registry in 2015, but later discovered that he had only “been moved to a more private registry.” (Id. at 3-4.) Plaintiffs claim “[t]his is hindering Jonathan's ability to live and grow his business [JGCRE, Inc.].” (Id. at 4.)

Plaintiffs also claim that “LC Knight and the other defendants kept Jonathan Green on the registry illegally” and that Defendants “were complicit after Ray Nash left office by still requiring Jonathan Green to remain in the registry.” (Dkt. No. 8 at 4.) In addition, Plaintiffs allege that “South Carolina refuses to release the information that they have. SLED has denied multiple freedom of information requests in 2019 and 2020.” (Dkt. No. 8 at 5; Dkt. No. 8-2 at 2.)

Accordingly, Plaintiffs filed the instant civil action alleging that Defendants violated Jonathan's Fourth, Fifth, Eighth, and Fourteenth Amendment rights, and the S.C. FOIA. (Dkt. No. 8 at 3-5.) Plaintiffs seek approximately $30 million in consequential, punitive, and compensatory damages. (Id. at 6.) Plaintiffs also request injunctive relief in the form of Jonathan's immediate removal from the sex offender registry, and “a letter of apology from the State of South Carolina, SLED, and the Dorchester [C]ounty Sheriff[']s [O]ffice.” (Id.)

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Plaintiffs filed their initial Complaint on May 3, 2021 and filed an Amended Complaint on July 15, 2021. (Dkt. No. 1; Dkt. No. 8.) On October 7, 2021, Defendants filed a Motion to Dismiss, seeking to dismiss Plaintiffs' claims in their entirety. (Dkt. No. 19.) Plaintiffs filed a response in opposition to Defendants' Motion on November 5, 2021. (Dkt. No. 34.) Defendants did not file a reply. As such, the Motion is ripe and ready for disposition.

LEGAL STANDARD

Defendants seek dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.^[1] (Dkt. No. 19.) A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks and citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. County Commissioners of Carroll County, Maryland, 523 F.3d 453, 459 (4th Cir. 2008).

On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court]

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must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citingMylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298). Because Plaintiffs are proceeding pro se, these standards must be applied while liberally construing Plaintiffs' filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Plaintiffs have submitted various supporting documents with their Response in Opposition. (Dkt. No. 34-1.) “Under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider exhibits, without converting the motion to dismiss to one for summary judgment.” Brennan v. Deluxe Corp., 361 F.Supp.3d 494, 501 (D. Md. 2019) (citing Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015)). “In particular, a court may consider

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documents that are ‘explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits '” Id. (quoting Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)). The Court may also “consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity.” Goines, 822 F.3d at 166. “To be ‘integral,' a document must be one ‘that by its very existence, and not the mere information it contains,...