Bush v. Department of Human Resources
Filing
40
MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 7/23/19. (MRR, )
FILED
2019 Jul-23 PM 04:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CLIFTON R. BUSH, SR.,
Plaintiff,
v.
DEBORAH FRAZIER, et al.,
Defendants.
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Case No.: 2:18-cv-00732-SGC
MEMORANDUM OPINION1
Pending before the undersigned is the defendants’ motion to dismiss the
plaintiff’s amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. (Doc. 27).2 For the reasons discussed below, the motion is due
to be granted, and this action is due to be dismissed.
I. Amended Complaint
The plaintiff, Clifton R. Bush, Sr., and his wife divorced in December 2009.
(Doc. 19 at 14). The Circuit Court of Jefferson County, Alabama ordered the
plaintiff to pay $743.00 per month in child support. (Id. at 17).
The court
modified the plaintiff’s child support obligation in October 2012. (Id. at 19). The
modification reduced the plaintiff’s child support obligation to $586.75 per month,
1
The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 22).
2
The parties appeared before the undersigned and argued their respective positions during a
hearing held on October 11, 2018.
retroactive to March 1, 2011. (Id.).
Between October or November 2017 and March 2018, the Alabama
Department of Human Resources (“ADHR”) garnished the plaintiff’s account(s) at
Regions Bank to collect child support payments he owed.
(Id. at 7, 11).
According to the plaintiff, the amount garnished was based on his pre-modification
obligation. (Id. at 11). The plaintiff alleges Ashley Lee, an ADHR employee,
initiated the garnishment without conducting an investigation, submitted incorrect
documents to Regions Bank, and otherwise mishandled the matter. (Id. at 7, 12).
The plaintiff alleges Deborah Frazier (Lee’s supervisor), Aminha Roussell
(Assistant Director of ADHR’s Child Support Enforcement Program), and Lathesia
Saulsberry (Director of ADHR’s Child Support Enforcement Program) failed to
review or wrongfully approved documents Lee submitted to Regions Bank in
connection with the garnishment. (Id. at 7, 12).3
In March 2018, ADHR moved to intervene in the plaintiff’s domestic
relations case and set aside an agreement into which the plaintiff and his former
wife had entered. (Id. at 7-8). The plaintiff had to travel to Birmingham, Alabama
from Galveston, Texas for a hearing on the motion. (Id. at 8). During the hearing,
ADHR made an oral motion to dismiss, which the court granted. (Id.). The
plaintiff alleges ADHR and the defendants had financial interests in his domestic
3
The plaintiff incorrectly identifies Aminha Roussell as Imna Rousell and Lathesia Saulsberry as
Lathesia Saulsderry. (Id. at 4-5).
2
relations proceedings. (Id.).
Following the hearing, the plaintiff spoke with an agent and/or financial
representative of the State of Alabama, who reviewed documents presented to him
by the plaintiff, stated “this was not right,” and gave him contact information for
an attorney. (Id.). The attorney reviewed the documents and told the plaintiff “to
talk to someone in Montgomery to resolve the matter.” (Id.).
On or about April 30, 2018, the plaintiff met with Saulsberry and Roussell.
(Id. at 8-9). He presented documents related to his divorce proceedings to them.
(Id. at 9). Roussell said ADHR did not have the court documents and made copies.
(Id.). Saulsberry and Roussell then coerced the plaintiff into signing a “review
paper,” stating that was the only way for his money to be returned. (Id.).
Based on the foregoing factual allegations, the plaintiff claims ADHR, Lee,
Frazier, Roussell, and Saulsberry violated his Fourth, Fifth, Eighth, and Fourteenth
Amendment rights under the U.S. Constitution; 4 15 U.S.C. §§ 1672(c) and
1673(c), which are garnishment provisions of the Consumer Credit Protection Act;
18 U.S.C. § 666, which criminalizes theft or bribery concerning programs
receiving federal funds; 42 U.S.C. § 1983, which prohibits the deprivation of
4
More specifically, the plaintiff alleges the defendants’ conduct violated his Fourth Amendment
right to be free from unreasonable searches and seizures, his Fifth and Fourteenth Amendment
rights not to be deprived of property without due process of law, and his Eighth Amendment
right to be free from the imposition of excessive fines and cruel and unusual punishment. (Doc.
19 at 7, 9, 12-13; Doc. 39 at 2, 4-5). The plaintiff first mentions his Fourth and Fourteenth
Amendment rights in his response to the defendants’ motion to dismiss. (Doc. 39 at 2, 4-5).
3
federal rights by “persons” acting under color of state law; 45 C.F.R. §§ 302.34
and 302.50(e), which set out state plan requirements for child support enforcement
programs under Title IV-D of the Social Security Act; Ala. Code § 13A-8-2, which
criminalizes theft of property; and Ala. Code § 13A-8-3, which provides that theft
of property exceeding $2,500 in value constitutes first-degree theft of property, a
Class B felony. (Id. at 7-13). He also alleges Frazier, Roussell, and Saulsberry
failed to properly train employees under their supervision. (Id. at 7, 12). He
requests a variety of monetary damages. (Id. at 11-13).
II. Standard of Review
Dismissal under Rule 12(b)(6) is appropriate if a complaint does not
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. “[L]abels and conclusions,” “a formulaic
recitation of the elements of a cause of action,” and “naked assertion[s] devoid of
further factual enhancement” are insufficient. Id. (quoting Twombly, 550 U.S. at
4
555, 557) (internal quotations omitted). “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). “This leniency, however, does not require or allow courts to rewrite an
otherwise deficient pleading in order to sustain an action.” Thomas v. Pentagon
Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
Although the defendants purport to bring their motion exclusively pursuant
to Rule 12(b)(6), their asserted grounds for dismissal implicate Rule 12(b)(1), as
well.
Dismissal is appropriate under Rule 12(b)(1) where subject matter
jurisdiction is lacking. See Fed. R. Civ. P. 12(b)(1). For example, “a dismissal on
sovereign immunity grounds should be pursuant to Rule 12(b)(1) because no
subject-matter jurisdiction exists.” Thomas v. U.S. Postal Serv., 364 F. App’x 600,
601 n.3 (11th Cir. 2010). Additionally, dismissal pursuant to Rule 12(b)(1) for
lack of subject matter jurisdiction is appropriate to the extent a plaintiff asserts a
claim under a statute that affords no private right of action. See Abner v. Mobile
Infirmary Hosp., 149 F. App’x 857, 858-59 (11th Cir. 2005) (holding district court
properly found subject matter jurisdiction lacking where statute at issue provided
no private right of action).
“[A] motion to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or factual challenge to
5
the complaint.” McElmurray v. Consol. Gov’t of Augusta-Richmond County, 501
F.3d 1244, 1251 (11th Cir. 2007).
A “facial attack” on the complaint requires the court merely to look
and see if the plaintiff has sufficiently alleged a basis of subject matter
jurisdiction, and the allegations in his complaint are taken as true for
the purposes of the motion. “Factual attacks, on the other hand,
challenge the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such
as testimony and affidavits are considered.
Id. (internal quotation marks and citation omitted).
The defendants have not
submitted evidence outside the pleadings to support their arguments with respect to
subject matter jurisdiction.5 Therefore, they have made a facial attack on the
amended complaint.
III. Discussion
A. Section 1983 Claims
Title 42, Section 1983 of the U.S. Code “ ‘is not itself a source of
substantive rights.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). It provides a private right of
action to vindicate violations of federal rights elsewhere conferred by the U.S.
Constitution and federal statutes. See id. (recognizing purpose of § 1983); Maine
v. Thiboutot, 448 U.S. 1, 4-8 (1980) (rejecting argument § 1983 provides cause of
5
The defendants have submitted evidence outside the pleadings in support of their arguments the
amended complaint is due to be dismissed pursuant to the doctrines of abstention, res judicata,
and collateral estoppel. (Doc. 27 at 5-7, 12-16; Doc. 27-1). The undersigned declines to address
these argument because alternative grounds support dismissal.
6
action only for constitutional violations).
Accordingly, the undersigned construes the plaintiff’s claim for a violation
of § 1983 as a vehicle for asserting his claims for violations of various other
federal constitutional, statutory, and regulatory provisions.
See Green v.
Pennington, 2006 WL 1553999, at *1 (N.D. Ga. May 30, 2006) (holding claim for
violation of § 1983 was more appropriately viewed as vehicle for bringing claims
for due process and equal protection violations). So construed, the plaintiff’s
claims brought pursuant to § 1983 implicate whether the defendants are “persons”
subject to suit under § 1983, as well as sovereign and qualified immunity. These
defenses will be addressed after consideration of the plaintiff’s the failure-to-train
claim against Frazier, Roussell, and Saulsberry.
1. Failure-to-Train Claim
“[U]nder § 1983, a supervisor can be held liable for failing to train his or her
employees ‘only where the failure to train amounts to deliberate indifference to the
rights of persons with whom the [subordinates] come into contact.’” Keith v.
DeKalb Cty., Georgia, 749 F.3d 1034, 1052 (11th Cir. 2014) (quoting City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
“[A] plaintiff alleging a
constitutional violation premised on a failure to train must demonstrate that the
supervisor had ‘actual or constructive notice that a particular omission in [the]
training program causes [subordinates] to violate citizens’ constitutional rights,’
7
and that armed with that knowledge the supervisor chose to retain that training
program. Id. (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).
To
establish the requisite actual or constructive notice, “ ‘[a] pattern of similar
constitutional violations by untrained employees is ordinarily necessary.’” Id. at
1053 (quoting Connick, 563 U.S. at 62); see also Belcher v. City of Foley,
Alabama, 30 F.3d 1390, 1397-98 (11th Cir. 1994) (“Failure to train can amount to
deliberate indifference when the need for more or different training is obvious,
such as when there exists a history of abuse by subordinates that has put the
supervisor on notice of the need for corrective measures, and when the failure to
train is likely to result in the violation of a constitutional right.” (internal citations
omitted)).
Here, the plaintiff does not allege a pattern of similar constitutional
violations by untrained employees or any other facts that would support the
inference Frazier, Roussell, or Saulsberry had actual or constructive notice of a
deficiency in their training of subordinates. Accordingly, to the extent the plaintiff
asserts a failure-to-train claim against these defendants pursuant to § 1983, that
claim is due to be dismissed without prejudice pursuant to Rule 12(b)(6) for failure
to state a claim on which relief may be granted.6
6
The undersigned does not read the amended complaint to include a claim for supervisory
liability against Frazier, Roussell, or Saulsberry. Nonetheless, the undersigned notes any such
claim would fail. “The standard by which a supervisor is held liable in [his] individual capacity
8
The plaintiff’s claim fares no better construed as brought pursuant to
Alabama law. “Alabama does not recognize a cause of action for a supervisor’s
negligent training or supervision of a subordinate.” Lucio v. City of Tarrant,
Alabama, 2014 WL 3543696, at *3 (N.D. Ala. July 16, 2014). This is because
under Alabama law, the tort of negligent supervision or training requires the
existence of a master-servant relationship, and “a supervisor is not the master of a
subordinate, nor is the subordinate the servant of the supervisor; rather, as
Alabama cases make plain, the status of master is restricted to one who is actually
or essentially the employer of the servant.” Bell v. City of York, Alabama, 2013
WL 1352022, at *29 (N.D. Ala. Mar. 29, 2013) (internal quotation marks omitted).
Accordingly, to the extent the plaintiff asserts a failure-to-train claim against
Frazier, Roussell, and Saulsberry under Alabama law, that claim is due to be
for the actions of a subordinate is extremely rigorous.” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003) (internal quotation marks omitted). “It is well established in [the Eleventh
Circuit] that supervisory officials are not liable under § 1983 for the unconstitutional acts of their
subordinates on the basis of respondeat superior or vicarious liability.” Id. (internal quotation
marks omitted). Apart from personal participation in the alleged unconstitutional conduct,
supervisory liability is available only where there is a causal connection between the supervisor’s
actions and the alleged constitutional deprivation. Id. The requisite causal connection is
established (1) “when a history of widespread abuse puts the responsible supervisor on notice of
the need to correct the alleged deprivation, and he fails to do so”; (2) “when a supervisor’s
custom or policy results in deliberate indifference to constitutional rights”; (3) or “when facts
support an inference that the supervisor directed the subordinates to act unlawfully or knew that
the subordinates would act unlawfully and failed to stop them from doing so.” Id. (internal
quotation marks and alterations omitted). The plaintiff does not allege any facts that would
establish the requisite causal connection.
9
dismissed with prejudice pursuant to Rule 12(b)(6) for failure to state a claim on
which relief may be granted.
2. “Persons” Subject to § 1983 Claim & Sovereign Immunity
A necessary element of a § 1983 claim is that the claim be asserted against a
“person” acting under color of state law. Greffey v. State of Alabama Dep’t of
Corr., 996 F. Supp. 1368, 1377 (N.D. Ala. 1998). A suable “person” under the
statute does not include a state, state agency, or state official to the extent sued in
her official capacity for money damages. Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989); see also A.D. ex rel. McGhee v. Alabama Dep’t of Human
Res., 995 F. Supp. 2d 1253, 1269 (N.D. Ala. 2014) (holding ADHR is not a
“person” subject to suit under § 1983).
Relatedly, the Eleventh Amendment bars suits for money damages against a
state by its citizens.
See U.S. Const. amend. XI; Carr v. City of Florence,
Alabama, 916 F.2d 1521, 1524 (11th Cir. 1990) (citing Hans v. Louisiana, 134
U.S. 1 (1890)). “Because the Eleventh Amendment represents a constitutional
limitation on the federal judicial power established in Article III, federal courts
lack jurisdiction to entertain claims that are barred by the Eleventh Amendment.”
McClendon v. Georgia Dep’t of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir.
2001) (internal citation omitted); see also Seminole Tribe of Florida v. State of
10
Florida, 11 F.3d 1016, 1021 (11th Cir. 1994) (Where no exception applies, “the
Eleventh Amendment serves as a jurisdictional bar to the suit.”).
There are three exceptions to the application of Eleventh Amendment, or
sovereign, immunity: (1) a state may waive its immunity, (2) Congress may
abrogate the immunity, and (3) under the doctrine announced by the United States
Supreme Court in Ex parte Young, 209 U.S. 123 (1908), a citizen may sue a state
official in her official capacity for prospective injunctive relief to end a continuing
violation of federal law. Carr, 916 F.2d at 1524, 1524 n.2 (citing Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 100, 104 (1984); Ex parte Young, 209 U.S. 123;
Kentucky v. Graham, 473 U.S. 159 (1985)).
The State of Alabama has not waived its Eleventh Amendment immunity.
See Ala. Const. Art. I, § 14 (“[T]he State of Alabama shall never be made a
defendant in any court of law or equity.”); Carr, 916 F.2d at 1525. Congress has
not abrogated Eleventh Amendment immunity in actions brought pursuant to §
1983. Carr, 916 F.2d at 1525 (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
Because the plaintiff seeks only monetary relief, the Ex parte Young doctrine does
not apply. See Carr, 916 F.2d at 1524 n.2 (holding “narrow” third exception to
Eleventh Amendment immunity did not apply because appellants sought only
monetary relief).
11
Eleventh Amendment immunity extends to state entities and officers when
they act as “arm[s] of the state.” Lightfoot v. Henry Cty. School Dist., 771 F.3d
764, 768 (11th Cir. 2014) (internal quotation marks omitted). State and federal
case law makes clear that ADHR is an arm of the state entitled to Eleventh
Amendment immunity. See, e.g., Rizo v. Alabama Dep’t of Human Res., 228 F.
App’x 832, 834-35 (11th Cir. 2007) (affirming dismissal of claims against ADHR
based on Eleventh Amendment immunity); Zeigler v. Alabama Dep’t of Human
Res., 710 F. Supp. 2d 1229, 1249-50 (M.D. Ala. 2010) (dismissing claims against
ADHR based on Eleventh Amendment immunity); Ex parte Mobile Cty. Dep’t of
Human Res., 815 So. 2d 527, 530 (Ala. 2001) (same); Tomberlin v. Clark, 1 F.
Supp. 3d 1213, 1224 (N.D. Ala. 2014) (noting ADHR is an arm of the state for
purposes of Eleventh Amendment immunity). Moreover, as agents of ADHR, Lee,
Frazier, Roussell, and Saulsberry are entitled to Eleventh Amendment immunity to
the extent the plaintiff asserts § 1983 claims against them in their official
capacities. See Tomberlin, 1 F. Supp. 3d at 1224-25 (dismissing claims against
employees of county subdivision of ADHR in their officials capacities based on
Eleventh Amendment immunity).
For the foregoing reasons, the plaintiff’s claims for violations of various
federal constitutional, statutory, and regulatory provisions asserted through § 1983
against ADHR and against Lee, Frazier, Roussell, and Saulsberry in their official
12
capacities are due to be dismissed with prejudice pursuant to Rule 12(b)(6) because
they are not “persons” subject to suit under § 1983 or, alternatively, pursuant to
Rule 12(b)(1) because sovereign immunity deprives this court of subject matter
jurisdiction. 7
3. Qualified Immunity
“Qualified immunity protects government officials performing discretionary
functions from suits in their individual capacities unless their conduct violates
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007)
(internal quotation marks omitted). 8 “Because qualified immunity is a defense not
only from liability, but also from suit, it is important for a court to ascertain the
validity of a qualified immunity defense as early in the lawsuit as possible.” Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks omitted).
“It is therefore appropriate for a district court to grant the defense of qualified
7
Because the Eleventh Amendment clearly bars these claims, the undersigned assumes, without
deciding, the federal statutes the plaintiff alleges the defendants violated create federal rights
enforceable through § 1983. See Blessing v. Freestone, 520 U.S. 329, 340 (1997) (“[T]o seek
redress through § 1983, [] a plaintiff must assert the violation of a federal right, not merely a
violation of federal law.” (emphasis in original)); Harris v. James, 127 F.3d 993, 997-1004, 1009
(11th Cir. 1997) (discussing three-prong test for determining whether statute creates federal right
enforceable through § 1983, as articulated in a series of United States Supreme Court cases).
The undersigned further assumes, without deciding, the statutory provisions underlying the
federal regulations the plaintiff alleges the defendants violated create enforceable federal rights.
See Harris, 127 F.3d at 1009 (explaining that federal regulations do not create enforceable rights
in and of themselves); Fla. Pharmacy Ass’n v. Cook, 17 F. Supp. 2d 1293, 1297-98 (N.D. Fla.
1998) (same).
8
A state official sued in her individual capacity for money damages is a “person” subject to suit
under § 1983. Hafer v. Melo, 502 U.S. 21, 33 (1991).
13
immunity at the motion to dismiss stage if the complaint fails to allege the
violation of a clearly established constitutional right.” Gonzalez v. Reno, 325 F.3d
1228, 1233 (11th Cir. 2003) (internal quotation marks omitted).
In determining whether a government official was performing a
discretionary function, a court considers whether the official “was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize.” Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). “In applying each prong of this
test, [a court] look[s] to the general nature of the defendant’s action, temporarily
putting aside the fact that it may have been committed for an unconstitutional
purpose, in an unconstitutional manner, to an unconstitutional extent, or under
constitutionally inappropriate circumstances.” Id. at 1266; see also Harbert Int’l,
Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (noting that framing the
inquiry as whether it was within a defendant’s authority to commit an allegedly
illegal act “is no more than an untenable tautology”). “Put another way, to pass the
first step of this discretionary function test for qualified immunity, the defendant
must have been performing a function that, but for the alleged constitutional
infirmity, would have fallen with[in] his legitimate job description.” Holloman ex
rel. Holloman, 370 F.3d at 1266 (emphasis in original). A court must, however,
“be sure not to characterize and assess the defendant’s act at too high a level of
14
generality.” Id. (explaining characterization of action at high level of abstraction
makes it impossible to determine whether official was truly acting within proper
scope of job-related activities).
For example, “[i]n considering whether an act of allegedly excessive force
fell within a police officer’s duties . . . [a court] do[es] not ask whether police have
the right to use excessive force. [It] also do[es] not immediately jump to a high
level of generality and ask whether police are responsible for enforcing the law or
promoting the public interest. [It] instead ask[s] whether they have the power to
attempt to effectuate arrests.”
Id. (citing Lee, 284 F.3d at 1194); see also
Tomberlin, 1 F. Supp. 3d at 1225-26 (holding employees of county subdivision of
ADHR acted within discretionary authority when investigating allegations plaintiff
committed child abuse, which investigation the plaintiff claimed gave rise to
constitutional violations). Relatedly, “it is not within a teacher’s official powers to
sign her students up for the Army to promote patriotism or civic virtue, or to
compel them to bring their property to school to redistribute their wealth to the
poor so that they can have firsthand experience with altruism,” although promotion
of civic engagement and altruism may be legitimate pedagogical goals. Holloman
ex rel. Holloman, 370 F.3d at 1267.
Applying this standard, it is clear the conduct challenged by the plaintiff
occurred within the performance of the individual defendants’ job-related functions
15
through means within their power to utilize. A function of ADHR and, specifically,
its Child Support Enforcement Division, of which the individual defendants are
agents, is to collect child support, and garnishments and judicial actions are within
its arsenal of tools to accomplish this goal. 9
Having established the individual defendants were performing discretionary
functions in relation to the challenged conduct, the inquiry becomes whether the
plaintiff has alleged the violation of a clearly established constitutional or statutory
right. Holloman ex rel. Holloman, 370 F.3d at 1264. This inquiry is subdivided
into two prongs: (1) whether the plaintiff has alleged the violation of a
constitutional right and (2) whether that right was clearly established at the time of
the alleged violation. Id. A court has discretion to decide which of the prongs to
address first, taking into consideration the circumstances of a particular case.
Pearson v. Callahan, 555 U.S. 223, 235-42 (2009) (noting “[t]here are cases in
which it is plain that a constitutional right is not clearly established but far from
obvious whether in fact there is such a right.”).
The United States Supreme Court has explained that “the right allegedly
violated must be defined at the appropriate level of specificity before a court can
9
See http://dhr.alabama.gov/services/child_support_services/child_support_enforcement.aspx
(last visited July 23, 2019) (indicating ADHR’s Child Support Enforcement Division obtains
orders for payment of child support and secures compliance with child support court orders);
http://dhr.alabama.gov/services/child_support_services/Enfrcmnt_Ct_Ord_CSPayments.aspx
(last visited July 23, 2019) (identifying liens and levies on bank accounts as a means of securing
compliance with child support court orders).
16
determine if it was clearly established.” Wilson v. Layne, 526 U.S. 603, 615
(1999) (citing Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). The right
should not be defined abstractly or at a high level of generality but, rather, in a
more particularized manner. Anderson, 483 U.S. at 639 (explaining right defined
abstractly or at high level of generality would convert the rule of qualified
immunity into a rule of virtually unqualified liability); Ashcroft v. al-Kidd, 563
U.S. 731, 742 (2011) (noting the Court has repeatedly warned lower courts of this
error). For example, because the Due Process Clause of the Fifth and Fourteenth
Amendments clearly establishes the right to due process of law, “there is a sense in
which any action that violates [due process] violates a clearly established right.”
Anderson, 483 U.S. at 639.
Similarly, “[t]he general proposition [] that an
unreasonable search or seizure violates the Fourth Amendment is of little help in
determining whether the violative nature of particular conduct is clearly
established.” al-Kidd, 563 U.S. at 742.
The right properly defined is clearly established if precedent of the United
States Supreme Court, the Eleventh Circuit, or the Alabama Supreme Court, as
existed at the time of the conduct at issue, provided fair warning to the defendants
that their conduct violated the right. Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(holding relevant question was whether state of law at time of conduct at issue
gave defendants fair warning that such conduct was unconstitutional); Jenkins by
17
Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997) (noting
in Eleventh Circuit, law can be clearly established for purposes of qualified
immunity only by decision of United States Supreme Court, Eleventh Circuit Court
of Appeals, or highest court of state where case arose); see also Anderson, 483
U.S. at 640 (“The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.”). While a case
directly on point is not required, existing precedent “must have placed the statutory
or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.
Here, the rights the plaintiff alleges the defendants violated are properly
defined as the rights to be free from erroneous garnishment, improper application
of garnished funds to satisfy a medical support obligation, and improper
intervention in domestic relations proceedings. The plaintiff cites no United States
Supreme Court, Eleventh Circuit, or Alabama Supreme Court precedent that would
have informed the defendants their conduct violated these rights, and the
undersigned has found none. Cf. Tomberlin, 1 F. Supp. 3d at 1226 (holding
employees of county subdivision of ADHR were entitled to qualified immunity
because while plaintiff’s rights may have been violated by continuation of
investigation and modification of parental rights after acquiring knowledge abuse
was unlikely to have occurred, those rights were not clearly established).
Accordingly, to the extent the plaintiff asserts § 1983 claims against Lee, Frazier,
18
Roussell, and Saulsberry in their individual capacities, these defendants are entitled
to qualified immunity, and the claims are due to be dismissed with prejudice
pursuant to Rule 12(b)(6) for failure to state a claim on which relief may be
granted.10
B. Direct Claims
To the extent the plaintiff asserts claims directly under the constitutional,
statutory, and regulatory provisions he alleges the defendants violated, those
claims fail either because the provisions at issue do not provide a direct or private
right of action or because the plaintiff has failed to allege plausible facts to support
the claims.
1. Constitutional and Statutory Violations for Which No Private
Right of Action Exists
A private right of action is “an individual’s right to sue in a personal
capacity to enforce a legal claim.” Right of Action, BLACK’S LAW DICTIONARY
(10th ed. 2014). Not every federal statute provides a private right of action. See
Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979) (“[T]he fact that a federal
statute has been violated and some person harmed does not automatically give rise
to a private cause of action in favor of that person.”). For an individual to bring a
claim alleging a violation of a statute, the statute must explicitly or implicitly
10
Here again, the undersigned assumes, without deciding, the federal statutes and regulations the
plaintiff alleges the defendants violated create federal rights enforceable through § 1983. See
supra note 7.
19
provide for a private right of action.
See Hemispherx Biopharma, Inc. v.
Johannesburg Consol. Invs., 553 F.3d 1351, 1361 n.14 (11th Cir. 2008) (noting
that when statute does not expressly provide for private right of action, court
considers four factors identified in Cort v. Ash, 422 U.S. 66, 78 (1975), to
determine whether Congress intended to imply such right).
No direct right of action under the Constitution exists against state actors
because § 1983 provides a remedy for alleged constitutional violations by these
persons. See Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir. 1982) (holding
direct right of action under Constitution should not be implied against state actors
because § 1983 provides an adequate substitute); Anderson v. Edwards, 505 F.
Supp. 1043, 1045 (S.D. Ala. 1981) (noting no claim exists under First and
Fourteenth Amendments but, rather, violation of those amendments must be
vindicated through § 1983); Barbee v. Naphcare, Inc., 2007 WL 9712008, at *3
(N.D. Ala. Aug. 9, 2007) (dismissing claims for violations of the First and
Fourteenth Amendments because plaintiff did not assert these claims under § 1983
and had no direct right of action under the Constitution); Am. Gen. Life and Acc.
Ins. Co. v. Ward, 509 F. Supp. 2d 1324, 1334-35 (N.D. Ga. 2007) (dismissing
direct claim for violation of Fourteenth Amendment); Azul-Pacifico, Inc. v. City of
Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (holding plaintiff had no direct
right of action under Constitution and was required to have asserted claim for
20
constitutional violation through § 1983); Universal Outdoor, Inc., v. Elk Grove
Village, 969 F. Supp. 1124, 1125 (N.D. Ill. 1997) (noting no direct right of action
under Constitution exists against state actors); Mohsin v. California Dep’t of Water
Res., 52 F. Supp. 3d 1006, 1011 (E.D. Cal. 2014) (dismissing direct claim for
violation of Fourteenth Amendment). 11
Courts have held no express or implied private right of action exists under
the garnishment provisions of the Consumer Credit Protection Act, which are
enforced by the Secretary of Labor. See Curry v. Lopez, 2017 WL 5989728, at *7
(N.D. Ill. Dec. 4, 2017), aff’d, 756 F. App’x 649 (7th Cir. 2019); Corrado v. State
of New York Univ. Stony Brook Police, 2016 WL 4179946, at *4 (E.D.N.Y. Aug.
5, 2016); Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d 491, 501-02 (S.D.N.Y.
Mar. 6, 2015); Colbert v. Roling, 233 F. App’x 587, 590 (8th Cir. 2007); Flax v.
Delaware Div. of Family Servs., 2008 WL 1758857, at *11 (Apr. 16, 2008), aff’d
sub nom. Flax v. Delaware, 329 F. App’x 360 (3d Cir. 2009); Smeyres v. Gen.
Motors Corp., 820 F.2d 782, 783-84 (6th Cir. 1987); LeVick v. Skaggs Cos., 701
11
Additionally, the undersigned notes the Due Process Clause of the Fifth Amendment does not
apply to the states but, rather, only to the federal government. See Martinez-Rivera v. Sanchez
Ramos, 498 F.3d 3, 8 (1st Cir. 2007) (“The Fifth Amendment Due Process Clause . . . applies
‘only to actions of the federal government – not to those of state or local governments.’”)
(quoting Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)); cf. Dusenbery v. United
States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment prohibits
the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States,
from depriving any person of property without due process of law.” (internal quotation marks
omitted)); Buxton v. Plant City, 871 F.2d 1037, 1041 (11th Cir. 1989) (“The fifth amendment to
the United States Constitution restrains the federal government, and the fourteenth amendment,
section 1, restrains the states, from depriving any person of life, liberty, or property without due
process of law.”).
21
F.2d 777, 779-80 (9th Cir. 1983); McCabe v. City of Eureka, Missouri, 665 F.2d
680, 682-83 (8th Cir. 1981); Smith v. Cotton Bros. Baking Co., Inc., 609 F.2d 738,
741-43 (5th Cir. 1980), cert. denied, 449 U.S. 821 (1980).
Likewise, courts have held no express or implied private right of action
exists under 18 U.S.C. § 666. See Dixon v. Washington, 2018 WL 5046033, at *3
(E.D. Pa. Oct. 17, 2018); Myers v. Davenport, 2014 WL 2805278, at *1 (D. Mass.
June 18, 2014); Small v. Mortg. Elec. Registration Sys., Inc., 2010 WL 3719314, at
*8-9 (E.D. Ca. Sept. 16, 2010); Crooked Creek Properties, Inc. v. Ensley, 2009
WL 3644835, at *6 (M.D. Ala. Oct. 28, 2009), aff’d, 380 F. App’x 914 (11th Cir.
2010); Piorkowski v. Parziale, 2003 WL 21037353, at *8 (D. Conn. May 7, 2003);
Whitmire v. U.S. Veterans Admin., 661 F. Supp. 720, 723 (W.D. Wash. 1986).
Federal courts have declined to interpret state criminal statutes as providing
private rights of action where the statutes do not so expressly provide.
See
Anthony v. Am. Gen. Fin. Servs., Inc., 583 F.3d 1302, 1305 (11th Cir. 2009)
(certifying to Georgia Supreme Court question whether Georgia criminal statute
addressing notary fees gives rise to private right of action after noting reluctance to
read provision for such action into criminal statute where state courts and state
legislatures have not done so), certified question answered, 287 Ga. 448, 459
(2010) (holding private right of action may not be implied to remedy violation of
Georgia criminal statute at issue); Goia v. CitiFinancial Auto, 499 F. App’x 930,
22
937 (11th Cir. 2012) (holding civil remedy cannot arise from violation of Georgia
criminal statutes for trespassing and theft because the statutes do not expressly
provide for civil remedy); Walker v. Mobile Police Dep’t, 2017 WL 1398654, at *3
(S.D. Ala. Apr. 18, 2017) (holding plaintiff could not bring civil suit for violations
of Alabama statute criminalizing harassment where nothing in text of statute could
plausibly be read as creating private right of action); Bass Angler Sportsman Soc.
V. U.S. Steel Corp., 324 F. Supp. 412, 415-16 (S.D. Ala. 1971) (noting that
generally criminal statutes cannot be enforced through private civil actions but,
rather, only by government), aff’d, 447 F.2d 1304 (5th Cir. 1971). The Alabama
Code does not expressly provide a private right of action to vindicate commission
of the crime of theft of property. See Ala. Code § 13A-8-1, et seq.; see also
Phillips v. Publ’g Co., Inc., 2015 WL 5821501, at *25 (S.D. Ga. Sept. 14, 2015)
(noting Alabama law does not provide private right of action for victim of criminal
theft); Dortch v. Hetrick, 2016 WL 6306122, at *3 (S.D. Ala. Sept. 27, 2016)
(recommending dismissal of plaintiff’s claim defendant committed theft under
Alabama law because private citizen has no judicially cognizable interest in
prosecution of crime), report and recommendation adopted, 2016 WL 6304441
(S.D. Ala. Oct. 26, 2016). The undersigned declines to imply one absent such
express provision.
For the foregoing reasons, to the extent the plaintiff asserts claims directly
23
under the Fourth, Fifth, Eighth, or Fourteenth Amendments, garnishment
provisions of the Consumer Credit Protection Act, 18 U.S.C. § 666, or Ala. Code.
§§ 13A-8-2 or 13A-8-3, those claims are due to be dismissed with prejudice
pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because there is no
direct or private right of action under these constitutional and statutory provisions.
2. Regulatory Violations That Lack Supporting Factual
Allegations
Federal regulations cannot create private substantive or procedural rights
absent statutory authorization. See Alexander v. Sandoval, 532 U.S. 275, 291
(2001) (“[W]hen a statute has provided a general authorization for private
enforcement of regulations, it may perhaps be correct that the intent displayed in
each regulation can determine whether or not it is privately enforceable. But it is
most certainly incorrect to say that language in a regulation can conjure up a
private cause of action that has not been authorized by Congress. Agencies may
play the sorcerer’s apprentice but not the sorcerer himself.”); Love v. Delta Air
Lines, 310 F.3d 1347, 1353-54 (11th Cir. 2002) (noting Sandoval instructs a
private right or remedy cannot be created or conferred by federal regulation
promulgated under statute that does not create or confer such right or remedy).
Title 45, Sections 302.34 and 302.50 of the Code of Federal Regulations
were promulgated under Title IV-D of the Social Security Act. See 45 C.F.R. §§
302.34 and 302.50. Title 42, sections 654(5) and (7) of the U.S. Code are the
24
statutory sections corresponding to the regulations. See 42 U.S.C. §§ 654(5) and
(7).
Research has yielded no authority directly addressing whether these
statutory sections and the regulations promulgated under them provide for private
rights of action.
See Ashish Prasad, Rights Without Remedies: Section 1983
Enforcement of Title IV-D of the Social Security Act, 60 U. CHI. L. REV. 197, 198
(1993) (noting that if Title IV-D cannot be enforced through § 1983, only potential
alternative private means of enforcement is through implied right of action under
statute, which alternative is unlikely because text and history of Title IV-D provide
no explicit indication of congressional intent to create such action). Ultimately, it
is not necessary to undertake the analysis because the plaintiff has failed to allege
facts that would support the violation of any substantive rights that might
conceivably be created by the statutory and regulatory provisions at issue. 12
12
A requisite predicate to the analysis would be that the statutory and regulatory provisions at
issue create substantive, personal rights. See Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2002)
(“[W]here the text and structure of a statute provide no indication that Congress intends to create
new individual rights, there is no basis for a private suit, whether under § 1983 or under an
implied right of action.”); Touche Ross & Co. v. Redington, 442 U.S. 560, 576 (1979) (“The
question whether Congress . . . intended to create a private right of action [is] definitively
answered in the negative” where a “statute by its terms grants no private rights to any identifiable
class.”). The undersigned notes that while the Supreme Court has left open the possibility that
some provisions of Title IV-D might create substantive, personal rights, see Blessing, 520 U.S. at
345, it does not appear any court of appeals has subsequently determined a provision of Title IVD creates such a right, see Arrington v. Helms, 438 F.3d 1336, 1342-47 (11th Cir. 2006) (holding
42 U.S.C. § 657 does not create a personal right enforceable through § 1983); Hughlett v. RomerSensky, 497 F.3d 557, 561-65 (6th Cir. 2006) (holding 42 U.S.C. §§ 657(a) and 654b(c) do not
25
Section 302.34 requires a state plan to provide for cooperative agreements
between the state and courts, law enforcement officials, corrections official, and
Indian Tribes or Tribal organizations for the purpose of encouraging the prompt
and efficient collection of child support. 45 C.F.R. § 302.34; see also 42 U.S.C. §
654(7). Subsection (a) of section 302.50 requires a state plan to provide for the
assignment to the state of child support rights belonging to a recipient of certain
federal benefits, and subsection (e) prohibits use of amounts collected pursuant to
the assignment for the purpose of satisfying a medical support obligation absent an
order to the contrary. 45 C.F.R. § 302.50(a) and (e); see also 42 U.S.C. § 654(5).
The plaintiff alleges the defendants violated § 302.34 by moving to set aside
an agreement into which he and his former wife had entered. (Doc. 19 at 9). The
plain language of § 302.34 makes clear the regulation addresses cooperative
agreements between the state and its partners for the purpose of collecting child
support, not child support agreements between parents. See 45 C.F.R. § 302.34;
see also 42 U.S.C. § 654(7). Therefore, even if this regulation and the statutory
provision to which it may be traced give rise to private substantive and procedural
create personal rights enforceable through § 1983); Cuvillier v. Taylor, 503 F.3d 397, 402-08
(5th Cir. 2007) (holding 42 U.S.C. §§ 651-652(a)(1) and (h), § 654(4)(B) and (13) and
corresponding federal regulations do not create personal rights enforceable through § 1983);
Sheetz v. Norwood, 608 F. App’x 401, 404-05 (7th Cir. 2015) (noting no court of appeals has
ever concluded a provision of Title IV-D creates a personal right) (citing Arrington, Hughlett,
and Cuvillier).
26
rights, the amended complaint lacks factual allegations that would support a claim
for violation of the right.
The plaintiff also claims the defendants violated 45 C.F.R. § 302.50(e). He
does not explain the basis for this claim in the body of his amended complaint. He
does attach to his amended complaint a payment summary generated by the State
of Alabama’s Child Support Enforcement Division, which appears to show he
owed $12,626.85 in medical support as of March 12, 2018. (Doc. 19 at 23).
However, the amended complaint is devoid of any factual allegation the defendants
used funds garnished from his Regions Bank account(s) to satisfy his medical
support obligation. Therefore, even if this regulation and the statutory provision to
which it may be traced give rise to private substantive and procedural rights, the
amended complaint lacks factual allegations that would support a claim for
violation of the right.
Accordingly, to the extent the plaintiff asserts claims directly under the 45
C.F.R. §§ 302.34 or 302.50(e), those claims are due to be dismissed without
prejudice pursuant to Rule 12(b)(6) for failure to state a claim on which relief may
be granted.
27
IV. Conclusion
For the foregoing reasons, the defendants’ motion to dismiss the plaintiff’s
amended complaint (Doc. 27) is due to be granted, and the plaintiff’s claims are
due to be disposed of as indicated above.13 A separate order will be entered.
DONE this 23rd day of July, 2019.
______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
13
Generally “[w]here a more carefully drafted complaint might state a claim, a plaintiff must be
given at least one chance to amend the complaint before the district court dismisses the action
with prejudice.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by
Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002). Although the
plaintiff has had an opportunity to file an amended complaint, that pleading was filed as “a
matter of course” and, therefore, cannot be considered as a prior opportunity to amend for
purposes of dismissing all of his claims with prejudice. See Fed. R. Civ. P. 15(a) (allowing
amendment of complaint as “a matter of course” within 21 days after service of Rule 12(b)
motion and, thereafter, only with leave of court); Bryant v. Dupree, 252 F.3d 1161, 1163-64
(11th Cir. 2001) (holding plaintiff could not be considered to have been given prior opportunity
to amend where amended complaint was filed as “a matter of course”). Accordingly, where a
more carefully drafted complaint could conceivably state a viable claim, the plaintiff’s claims are
due to be dismissed without prejudice. However, to the extent the defendants are not “persons”
subject to suit under § 1983 and are entitled to sovereign and qualified immunity, and to the
extent the constitutional and statutory provisions cited by the plaintiff provide no direct or
private right of action, amendment would be futile, and the plaintiff’s claims are due to be
dismissed with prejudice. See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (holding
district court need not allow amendment if to do so would be futile because complaint as
amended would still be properly dismissed or be immediately subject to summary judgment for
defendant).
28
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