Washington v. U.S. Dep't of Homeland Sec.

• Decision Date: 12 April 2021
• Docket Number: C/A No.: 0:21-98-MGL-SVH
• Parties: Eddie Washington, Plaintiff, v. U.S. Department of Homeland Security, Alejandro Mayorkas in his Official Capacity, U.S. Immigration and Customs Enforcement, Tae D. Johnson in his Official Capacity, Attorney General, York County Sheriff's Office, Sergeant Nicholas Schifferle as an employee of York County Sheriff's Office, Defendants.
• Court: U.S. District Court — District of South Carolina

Eddie Washington, Plaintiff, v. U.S. Department of Homeland Security, Alejandro Mayorkas in his Official Capacity,U.S. Immigration and Customs Enforcement,Tae D. Johnson in his Official Capacity,Attorney General, York County Sheriff's Office,Sergeant Nicholas Schifferle as an employeeof York County Sheriff's Office, Defendants.

C/A No.: 0:21-98-MGL-SVH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

April 12, 2021

REPORT AND RECOMMENDATION

Eddie Washington ("Plaintiff") filed this suit on January 11, 2021, against the U.S. Department of Homeland Security ("DHS"); Alejandro Mayorkas ("Mayorkas"), in his official capacity as DHS Secretary; U.S. Immigration and Customs Enforcement ("ICE"); Tae D. Johnson ("Johnson"), in his official capacity as the acting director of ICE; the Attorney General; York County Sheriff's Office ("YCSO"); and YCSO employee Sergeant Nicholas Schifferle ("Schifferle").¹ In his amended complaint, Plaintiff assertseleven causes of action that can be divided into three groups: (1) claims pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights (first, second, fourth, sixth, and eighth causes of action), (2) claims for violations of the South Carolina Constitution (third, fifth, seventh, and ninth causes of action), and (3) state-law claims for civil conspiracy (tenth cause of action) and conversion/claim and delivery (eleventh cause of action).

This matter comes before the court on the motion to dismiss filed by DHS, Mayorkas, ICE, Johnson, and the Attorney General, with the Attorney General acting by and through the Acting United States Attorney for the District of South Carolina (collectively the "Federal Defendants"). [ECF No. 27]. The Federal Defendants' motion to dismiss having been fully briefed [see ECF No. 31], it is ripe for disposition.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this case has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant the Federal Defendants' motion to dismiss.

I. Factual Background

Plaintiff alleges that on or about July 16, 2020, he was travelling south on Interstate 77 when he was stopped by Schifferle. [ECF No. 12 ¶ 14]. Schifferle advised Plaintiff he was being stopped for failure to use headlights when required. Id. ¶ 15. For an unknown reason, Schifferle called a drug dog out to the scene. Id. ¶ 16. Although no drugs were found, $55,140 was found in Plaintiff's vehicle and seized at the time of the traffic stop. Id. ¶¶ 16-17.

Plaintiff was not arrested and alleges that at no time prior, during, or after the seizure was he engaged in unlawful activity. Id. ¶ 18. The only citation he received was for failure to use headlights when required pursuant to S.C. Code Ann. § 56-05-4450—a misdemeanor with a potential penalty of up to 30 days in jail and/or a fine up to $25. Id. ¶ 19.

Plaintiff alleges ICE is now in possession and control of the seized money, but was not involved in the traffic stop or present at the time of the seizure. Id. ¶¶ 20-21. Plaintiff alleges that, according to ICE, the money was seized pursuant to 19 U.S.C. § 981(a)(1), 18 U.S.C. § 1956(a)(1), and 18 U.S.C. § 1961 for conducting a financial transaction to promote a specified unlawful activity, but no unlawful activity has been alleged or specified. Id. ¶ 22.

II. Discussion

A. Standard on Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards, 178 F.3d at 244. Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion." Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).

B. Analysis

1. Claims Brought Pursuant to 42 U.S.C. § 1983

To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that he was injured by "the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws" by a "person" acting "under color"of state law. See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014).

For a party to be a state actor subject to suit under § 1983:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Here, Plaintiff has provided no allegations showing that the Federal Defendants are not as they are identified, namely officials, entities, and agencies of the federal government. Additionally, the court may take judicial notice that the Federal Defendants are federal agencies and agents and act under the color of federal law. See Fed. R. Evid. 201(b) (providing that a fact is appropriate for judicial notice if it is "not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."); see also Edgerton v. George, C/A No. 1:10-237, 2011 WL 815693, at *6 (W.D.N.C. Feb. 4, 2011) ("The undersigned takes judicial notice that the United States Department of Veterans Affairs is a federal agency, and its employees act under federal law.Plaintiff cannot, therefore, state a cause of action under Section 1983 against the United States."), report and recommendation adopted, C/A No. 1:10-237, 2011 WL 795537 (W.D.N.C. Feb. 25, 2011).

Plaintiff argues, without further explanation or support, that Mayorkas and Johnson are state actors because they are elected officials and act on behalf of DHS and ICE. [See ECF No. 31 at 3]. Plaintiff further argues that, if the court does not agree, he has sufficiently alleged "joint activity" between the Federal Defendants and state officials sufficient to support liability under § 1983 in that the "federal entities, especially Defendant ICE was not involved with the traffic stop and has unlawfully retained Plaintiff's property by and through conspiring with the other Defendants." Id. at 3-4 (citing Kletschka v. Driver, 411 F.2d 436, 448 (2d Cir. 1969) ("We can see no reason why a joint conspiracy between federal and state officials should not carry the same consequences under § 1983 as does joint action by state officials and private persons.")).

A civil conspiracy under 42 U.S.C. § 1983 requires that a plaintiff prove: (1) defendants acted jointly in concert; (2) that some overt act was done in furtherance of the conspiracy; and (3) the conspiracy resulted in the deprivation of a constitutional right. See Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996). "However, a bare assertion of a'conspiracy' is insufficient, and a plaintiff must plead enough factual matter to plausibly suggest that an agreement was made to deprive them of their constitutional rights." Hudson v. Richland Hosp., C/A No. 4:19-1499-SAL-TER, 2020 WL 7249874, at *4 (D.S.C. Sept. 16, 2020) (citations omitted), report and recommendation adopted sub nom. Hudson v. Smith, C/A No. 3:19--1499-SAL, 2020 WL 6707609 (D.S.C. Nov. 16, 2020).

The facts Plaintiff alleges—that his property was taken by a state actor but is now in the possession of ICE—are insufficient to state a claim that the Federal Defendants reached a mutual understanding with any state actors to deprive Plaintiff of his constitutional rights. See also, e.g., Ruttenberg v. Jones, 283 F. App'x 121, 132 (4th Cir. 2008) ("The complaint makes the bare, conclusory allegation that the defendants conspired to violate his constitutional rights and that the conspiracy culminated in the fabricated testimony. No common purpose is alleged and nothing beyond conclusory allegations of conspiracy are made. We therefore affirm the dismissal of the § 1983 conspiracy claim."); see also Tobey v. Napolitano, 808 F. Supp. 2d 830, 847 (E.D. Va. 2011), aff'd but criticized sub nom. Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013) ("Plaintiff's allegations do not suggest any federal-state conspiracy or concerted action sufficient to state a claim against the Federal Defendants under § 1983.").

Accordingly, the undersigned recommends granting the Federal Defendants' motion to dismiss Plaintiff's federal claims brought pursuant to 42 U.S.C. § 1983.

2. South Carolina Constitutional Claims

"The United States, as sovereign, is immune from suit save as it consents to be sued . . . ." United States v. Sherwood, 312 U.S. 584, 586 (1941); see also Frahm v. United States, 492 F.3d 258, 262 (4th Cir. 2007). Sovereign immunity extends to the federal government's agencies and officials, as well. See, e.g. F.D.I.C. v. Meyers, 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."). A waiver of sovereign immunity "cannot be implied but must be...