Smith v. Commonwealth

• Decision Date: 19 November 2021
• Docket Number: 3:21-cv-288-BJB-CHL
• Parties: STEPHANIE LOGSDON SMITH, ET AL. PLAINTIFF v. COMMONWEALTH OF KENTUCKY DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

STEPHANIE LOGSDON SMITH, ET AL. PLAINTIFF v. COMMONWEALTH OF KENTUCKY DEFENDANT

No. 3:21-cv-288-BJB-CHL

United States District Court, W.D. Kentucky, Louisville Division

November 19, 2021

OPINION & ORDER

Benjamin Beaton, District Judge

Stephanie Logsdon Smith, Bridgett Dennis, and Cammie Musinski (through her estate) allege that a state probation officer repeatedly sexually abused them while his supervisor concealed a complaint about the officer's behavior. Both lost their state jobs for this conduct, and the probation officer faces related criminal charges.

Understandably the victims want justice and compensation. But they filed this lawsuit against the Commonwealth of Kentucky and the Governor, not the probation officer or his supervisor. The Complaint seeks $30 million in compensatory damages and $90 million in punitive damages under 42 U.S.C. § 1983 for violations of the U.S. Constitution's Thirteenth Amendment, which abolished slavery and involuntary servitude. DN 1 at ¶¶ 1, 5, 6, 20, 111, 116.

The Defendants moved to dismiss based on the Commonwealth's sovereign immunity and because “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” DN 6 at 3 (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). In response, Plaintiffs amended their complaint (DN 7) to eliminate its reliance on § 1983 and drop their claim against the Governor. DN 7; First Opp. Br. (DN 8) at 2. But this created a new problem What is the cause of action against the Commonwealth? And why would it overcome state sovereign immunity? See Second Motion to Dismiss (DN 10) at 4-5.

All the answers, Plaintiffs say, may be found within the Thirteenth Amendment itself. According to their second opposition brief the constitutional text both creates a cause of action for damages and abrogates sovereign immunity. DN 11 at 3, 9, 13. Because neither contention is correct, the Court must dismiss this lawsuit.

A. The Thirteenth Amendment does not provide a cause of action for damages

Plaintiffs may not bring a civil lawsuit for any and all perceived violations of the law. They must have a “legal entitlement to sue, ” also known as a cause of action which depends on “some legal authority (e.g., a statute) that allows the plaintiff to come into court in the first place.” Samuel L. Bray & Paul B. Miller, Getting Into Equity, 97 Notre Dame L. Rev. at 10 (forthcoming 2022) (Oct. 28, 2021 draft); see Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Typically, a cause of action must come from some legal source that creates a private remedy. See Alexander, 532 U.S. at 286. While courts in prior decades have interpreted several legal provisions to imply the existence of a cause of action, the Supreme Court has cautioned against inferring new causes of action unless Congress' intent to create a private remedy is clear from the text and structure of the law. See Id. 288. The same holds true, only more so, for causes of action based on the text of the Constitution alone. See Ziglar v. Abbasi, 137 S.Ct. 1843, 1855-56 (2017).

Yet Plaintiffs root their legal right to sue the Commonwealth in § 1 of the Thirteenth Amendment itself, relying on precedent, text, and context. Each argument, however, ultimately reflects the absence of a direct cause of action.

1. Precedent. Plaintiffs describe this as “a case of first impression, ” Second Opp. Br. (DN 11) at 1, asserting that no reported opinion has held that a citizen cannot sue a state directly for damages “in federal court for violation of the prohibition against involuntary sexual servitude of U.S. Const. amend. XIII, ” First Opp. Br. (DN 8) at 3. Perhaps not, when the question is framed in that very particular way. Although the Sixth Circuit has, as the Commonwealth emphasizes, “long held that § 1983 provides the exclusive remedy for constitutional violations, ” at least concerning damages for the violation of rights protected by the Fourteenth Amendment. Second Motion to Dismiss (DN 10) at 4 (quoting Foster v. Michigan, 573 Fed.Appx. 377, 391 (6th Cir. 2014)). And other courts have rejected the notion that the Thirteenth Amendment created a cause of action for damages to remedy involuntary servitude. See Beauregard v. Lewis Cnty., 329 Fed.Appx. 710, 712 (9th Cir. 2009) (neither the Thirteenth nor Fourteenth Amendments directly create a cause of action for damages); Gomez v. Kern, 2012 WL 1069186, at *2 (S.D. Fla. Mar. 29, 2012) (“[T]he Thirteenth Amendment, by itself, does not provide a private cause of action” for involuntary servitude; rather, “a plaintiff must proceed under one of the Thirteenth Amendment's implementing statutes.”) (collecting cases). As Plaintiffs acknowledge, no caselaw recognizes a damages cause of action that is express or implied in the Thirteenth Amendment. Second Opp. Br. (DN 11) at 1.

Despite the lack of contemporary precedent applying a constitutional damages remedy, Plaintiffs contend that the Supreme Court's 1883 decision in the Civil Rights Cases recognized that the Thirteenth Amendment was “undoubtedly self-executing” in establishing a cause of action, even “without any ancillary legislation” from Congress implementing the Amendment's prohibitions. Second Opp. Br. at 3 (quoting 109 U.S. 3, 20). “By its own unaided force, ” Plaintiffs explain, the Amendment “abolished slavery, and established universal freedom.” Id. at 20 (quoting 109 U.S. at 20-21). But Plaintiffs' invocation of the Civil Rights Cases-not generally remembered for a broad embrace of private civil-rights enforcement, cf. 109 U.S. at 61-62 (Harlan J., dissenting)-likewise says nothing about private damages. And reading the passage on which Plaintiffs rely in its fuller context undermines Plaintiffs' interpretation of the Thirteenth Amendment to directly authorize federal courts to hear damages suits, without the need for any further legislative action:

This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.

It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery.

Civil Rights Cases, 109 U.S. at 20-21 (emphases added).

This passage makes plain the critical distinction between the Amendment's two sections, echoed in the separate roles for courts and Congress, all of which reveals even greater flaws in Plaintiffs' position.

2. The Text of the Thirteenth Amendment. Enacted in the aftermath of the Civil War, the Amendment eradicated the great evil of slavery in America. Section 1 proclaims that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” This prohibits slavery; it says nothing about private plaintiffs suing for damages if public actors violate that prohibition. Crucially, § 2 adds that “Congress shall have power to enforce this article by appropriate legislation.” By adverting to Congress, rather than the courts, § 2 moves even further from Plaintiffs' desired inference that the framers and ratifiers of the Thirteenth Amendment directly created a cause of action for damages.

True, the Amendment does have a self-executing effect. But that effect is to nullify contrary state laws, not to create damages actions. As the Civil Rights Cases recognized, “the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery.” 109 U.S. at 20. If someone was still held in slavery after 1865, for example, he or she could assert rights under the Thirteenth Amendment in a suit to shield the plaintiff from a state slavery law that might've otherwise authorized servitude. Id. at 20-21. Nothing indicates that plaintiff had a claim for damages based solely in the federal constitution, however; a right to sue historically rooted in equity or habeas, for example, would've been a more natural fit. As one of Plaintiffs' cited cases illustrates, a plaintiff could seek a writ of habeas ordering release from slavery under the Thirteenth Amendment. See In re Sah Quah, 31 F. 327, 330-31 (D. Alaska 1886) (utilizing habeas remedy to free an escaped slave from bondage imposed by a fellow member of an Indian tribe).^[1]

Yet Plaintiffs do not allege that any state law violates the Thirteenth Amendment. Nor do they rely on a traditional claim-rooted in common law, equity, or habeas-to overcome state action that violates the Thirteenth Amendment. Instead they seek damages against the state due to a state employee's past sexual abuse. But damages are a legal remedy that operates retrospectively; this species of...