Favors-Morrell et al v. United States et al

Filing 52

ORDER dismissing as moot 36 Motion For Legislative Consent to Waive Sovereign Immunity and 39 Motion to Strike; granting the Government's 16 Motion to Dismiss and the Individuals Defendants' 22 Motion to Dismiss. The Clerk is DIRECTED to enter the appropriate judgment of dismissal and to close this case. Signed by Chief Judge Lisa G. Wood on 6/8/2016. (ca)

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ANGELA FAVORS-MORRELL and
TONY L. MORRELL,

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Plaintiffs,

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V.

CV 215-24

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UNITED STATES, U.S. ATTORNEY
EDWARD J. TARVER, MELISSA M.
MUNDELL, JAMES D. DURHAM, THOMAS
CLARKSON, and T. SHANE MAYES,

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Defendants.

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ORDER

This matter comes before the Court on several motions: a
Motion to Dismiss filed by Defendant United States (the
"Government") (dkt. no. 16); a Motion to Dismiss filed by the
individual Defendants including U.S. Attorney Edward J. Tarver
and Assistant U.S. Attorneys Melissa M. Mundell, James D.
Durham, Thomas Clarkson, and T. Shane Mayes (collectively, the
"Individual Defendants") (dkt. no. 22); a Motion for Legislative
Consent To Waive Sovereign Immunity filed by Plaintiffs Angela
Favors-Morrell and Tony L. Morrell (collectively, "Plaintiffs")
(dkt. no. 36); and a Motion to Strike Plaintiffs' Request for
Legislative Consent to Waive Sovereign Immunity, filed by the
Individual Defendants (dkt. no. 39). For the following reasons,

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the Government's Motion to Dismiss (dkt. no. 16) and the
Individuals Defendants' Motion to Dismiss (dkt. no. 22) are
GRANTED, and Plaintiffs' claims against all Defendants are
DISMISSED.

Additionally, Plaintiffs' Motion for Legislative

Consent To Waive Sovereign Immunity (dkt. no. 36), and the
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Individual Defendants' Motion to Strike the same (dkt. no. 39),
are DISMISSED as MOOT.
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FACTUAL

Plaintiffs contend that the Individual Defendants, acting
in concert and under the color of federal law, "used scare
tactics and harassed . . . Plaintiff [Angela Favors-Morrell]" in
the course of other civil actions between the Plaintiff and the
Government or one or more of the Defendants. Dkt. No. 5, p. 2.1
. On one occasion, Plaintiff Angela Favors-Morrell allegedly
requested the names and contact information of the
individuals representing the Government in certain of these
actions. Id. According to Plaintiffs,

"[t]his request for

information should not have required intervention by the
[United States Marshals Service]," but the Individual

' While not detailed in the Amended Complaint, Plaintiffs' original
Complaint cited the following prior civil actions: Favors-Morrell V.
United States, No. CV 214-164, 2015 WL 3766853 (S.D. Ga. June 15,
2015); Favors-Morrell v. United States of America, No. 2:11-cv-91
(S.D. Ga. Nov. 30, 2011); Favors-Morrell v. United States of America
No. 2:09-cv-58 (S.D. Ga. Dec. 16, 2009); and Favors Morrell v.
Summers, No. 2:00-cv-158 (S.D. Ga. Apr. 2, 2002). Dkt. No. 1, p. 2.
The pleadings, however, are unclear as to which civil action or
actions many of Plaintiffs' allegations in this case relate.
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Defendants nevertheless "required the

[P]laintiff to report

to a meeting with the [U.S. Marshals] on June 10, 2014."
Id.
. Plaintiffs aver that on February 20, 2015, the Individual
Defendants "threatened sanctions" against Plaintiff Angela
Favors-Morrell and "[a]ccused [her] of [a] continued
frivolous pattern of litigation, harassment and
threats .

. as an inducement to settle" the action

pending at that time. Id. at p. 3 (citing Favors-Morrell,
2015 WL 3766853, at *1)
. Plaintiffs describe having had conversations with Defendant
Thomas Clarkson at some point in time, in which the
Defendant allegedly explained the procedures for exchanging
discovery. Id. at p. 4. Plaintiffs assert that Plaintiff
Angela Favors-Morrell notified the Defendant of her
homelessness and requested to conduct this exchange
electronically rather than by mail. Id.
• Plaintiffs generally allege that the Individual Defendants
"misled courts [and] withheld evidence" during litigation.

IL at pp. 4-5.
In these instances, Plaintiffs maintain, the Individual
Defendants sought to use their positions as government employees
to bring about unjust settlements or court decisions and,
ultimately, committed ethical violations and threatened to deny
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Plaintiff Angela Favors-Morrell her due process rights. Id. at
p. 4.
PROCEDURAL BACKGROUND

On February 24, 2015, Plaintiffs filed a Complaint pursuant
to 42 U.S.C. § 1983 ("Section 1983") against the Government and
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the Individual Defendants. Dkt. No. 1. Plaintiffs filed an
Amended Complaint on March 3, 2015, naming only the Individual
Defendants and seeking relief under Section 1983, 42 U.S.C. §
1986 ("Section 1986"), and Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), for alleged
violations of their rights under the "First Amendment, Fourth
Amendment Due Process Clause[,] . . . and Fifth Amendment."
Dkt. No. 5. The Court then directed that service be made on the
Government and the Individual Defendants. Dkt. Nos. 6, 13. The
Government and the Individual Defendants moved to dismiss this
action on May 15, 2015, and June 12, 2015, respectively, and
those Motions are now fully briefed. Dkt. Nos. 16, 22-23, 27,
30, 32. Additionally, Plaintiffs' Motion for Legislative
Consent To Waive Sovereign Immunity, dated November 17, 2015,
and the Individual Defendants' Motion to Strike this request,
are ripe for review. See Dkt. Nos. 36, 38-40, 42.
LEGAL STANDARDS

Federal Rule of Civil Procedure 8(a) requires that a
plaintiff's complaint contain both "a short and plain statement
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of the grounds for the court's jurisdiction" and "a short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a) (1)-(2). Accordingly,
a responding party may move to dismiss the complaint based on a
"lack of subject-matter jurisdiction," Fed. R. Civ. P. 12(b) (1)
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("Rule 12(b) (1)"), or a "failure to state a claim upon which
relief can be granted," Fed. R. Civ. P. 12(b) (6) ("Rule
12(b) (6)"). Motions to dismiss under Rule 12(b) (1) and Rule
12(b) (6) challenge the legal sufficiency of the complaint. See
Fed. R. Civ. P. 12(b)(1), (6).
A court applies the same standards of review in evaluating
dismissal based on a lack of subject-matter jurisdiction and a
failure to state a claim. See Carmichael v. Kellogg, Brown &
Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). While
a complaint need not contain detailed factual allegations, it
"must 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) (citing Bell Ati.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (interpreting Fed.
R. Civ. P. 8(a) (2)). To be plausible on its face, a complaint
must set forth enough facts to "allow[] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. A plaintiff, therefore, must plead
more than mere labels and conclusions, and a formulaic

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recitation of the elements of a particular cause of action does
not suffice. Twornbly, 550 U.S. at 555. Rather, at a minimum, a
complaint should "contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory." Fin. Sec.
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Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th
Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
In evaluating a motion filed pursuant to Rule 12(b) (1) or
Rule 12(b) (6), a court must "accept as true the facts as set
forth in the complaint and draw all reasonable inferences in the
plaintiff's favor." Randall v. Scott, 610 F.3d 701, 705 (11th
dr. 2010). Ordinarily, a court's review on a motion to dismiss
is limited to the factual allegations on the face of the
complaint. See Iqbal, 556 U.S. at 678. If a court is presented
with matters outside the pleadings on a motion to dismiss, the
motion to dismiss is converted into one for summary judgment.
Fed. R. Civ. P. 12(d). However, there are certain instances in
which a court may consider matters outside the pleadings without
transforming a motion to dismiss into a summary judgment motion,
see Davis v. Self, 547 F. App'x 927, 929 (11th Cir. 2013),
including, for example, where those outside matters are facts
subject to judicial notice, see Fed. R. Evid. 201(a)-(d);
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

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(2007); see also Fed. R. Evid. 201(b) (2) ("The court may
judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.").
DISCUSSION
I. The Government's Motion to Dismiss (Dkt. No. 16)

The Governrtent moves for its dismissal from this case on
the theory that Plaintiffs failed to name it as a Defendant in
the Amended Complaint and thus abandoned any claims against it.
Dkt. No. 16, p. 3 & n.2. Even if Plaintiffs had included it in
the Amended Complaint, the Government contends, it is not
subject to suit under Section 1983, Section 1986, or Bivens.
Id. at pp. 3-5.
Pursuant to Federal Rule of Civil Procedure 15(a) ("Rule
15(a)"), plaintiffs may amend a complaint "as a matter of
course" within either (a) twenty-one days after serving it or
(b) twenty-one days after receiving service of a responsive
pleading or motion, if one is required. Fed. R. Civ. P.
15(a) (1). "As a general rule, an amended complaint supersedes
and replaces the original complaint unless the amendment
specifically refers to or adopts the earlier pleading."
Schreane v. Middlebrooks, 522 F. App'x 845, 847 (11th Cir. 2013)
(quoting Varnes v. Local 91, Glass Bottle Blowers Ass'n, 674
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F.2d 1365, 1370 n.6 (11th Cir. 1982)). Once a court accepts an
amended complaint, "the original [complaint] is abandoned by the
amendment, and is no longer a part of the pleader's averments
against his adversary." Id. (quoting Pintando v. Miami-Dade
Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007)).
Plaintiffs do not properly assert any causes of action
against the Government in this case. Plaintiffs' original
Complaint named the Government as a Defendant, presumably
seeking to hold it liable for the alleged actions of the
Individual Defendants under a theory of respondeat superior.
See Dkt. No. 1. However, Plaintiffs' Amended Complaint, which
neither refers to nor adopts the original Complaint, does not
list the Government among the party-Defendants or make any
factual allegations against it. See Dkt. No. 5. At no time—
even after the Government tiled the instant Motion to Dismiss on
these grounds—have Plaintiffs attempted or requested permission
to further amend their pleading so as to add the Government as a
Defendant in this action. 2 Because the Amended Complaint is now
the operative pleading and does not name or otherwise set forth

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In their Motion to Strike, the Individual Defendants submit that
Plaintiffs' Motion for Legislative Consent To Waive Sovereign Immunity
is essentially another amended complaint. Dkt. No. 39, p. 3 n.1.
While Plaintiffs' Motion does purport to set forth the basis for this
Court's jurisdiction to afford relief, it neither follows the
structure and format nor includes the factual content characteristic
of Plaintiffs' original and amended complaints. See Dkt. Nos. 1, 5,
36. Because it does not appear that Plaintiffs intended this filing
to serve as an amendment to their pleading, the Court declines to
construe it as such.

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any claims against the Government, the Government must be
dismissed as a Defendant from this case. The Government's
Motion is thus GRANTED.
II. Plaintiffs' Motion for Legislative Consent To Waive
Sovereign Immunity (Dkt. No. 36)

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In their Motion, Plaintiffs "request express legislative
consent to waive sovereign immunity to proceed" against the
Government. Dkt. No. 36, p. 1. Plaintiffs contend that this
Court has jurisdiction to adjudicate claims against the
Government pursuant to 11 U.S.C. § 106 ("Section 106") and the
Tucker Act, 28 U.S.C. §§ 1346(a), 1491 (the "Tucker Act"). Id.
at pp. 1-2.
Plaintiffs' Motion is readily subject to dismissal. As
discussed above, Plaintiffs have not properly named the
Government as a party-Defendant in this action. See supra Part
I. Accordingly, there is no reason to entertain any arguments
as to the Government's immunity from suit or this Court's
jurisdiction to hear claims against it. Plaintiffs' Motion is,
therefore, DISMISSED as moot.

The Court notes, however, that

even if the Government remained a named Defendant in this
action, Plaintiffs' Motion would be due to be denied, because
the asserted grounds for waiving sovereign immunity—namely,
Section 106 and the Tucker Act—are inapplicable here. See 11
U.S.C. § 106 (abrogating sovereign immunity for governmental

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units in certain bankruptcy proceedings); 28 U.S.C. § 1491 (a) (1)
(conferring jurisdiction on the Court of Federal Claims and
waiving sovereign immunity for damages claims based-upon a
federal law specifically authorizing the payment of money
damages by the Government or based upon a governmental
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contract).
III. The Individual Defendants' Motion to Strike (Dkt. No. 39)

The Individual Defendants move to strike Plaintiffs' Motion
for Legislative Consent To Waive Sovereign Immunity, arguing
that Plaintiffs' request is immaterial and impertinent. Dkt.
No. 39, p. 3. In the alternative, the Individual Defendants ask
that Plaintiffs' Motion be denied based on the inapplicability
of Section 106 and the Tucker Act to this case and this Court's
lack of jurisdiction to hear such matters, in any event. Id.
Because the Court has determined that Plaintiffs' Motion to
waive sovereign immunity is subject to dismissal on mootness
grounds, the Individual Defendants' request to strike the same
is likewise rendered moot. Thus, this Motion is DISMISSED as
moot.
IV.

The Individual Defendants' Motion to Dismiss (Dkt. No. 22)

The Individual Defendants move to dismiss Plaintiffs'
claims against them, arguing that absolute immunity, or,
alternatively, qualified immunity, protects them from suit.
Dkt. No. 22, pp. 3-19. The movants also contend that Plaintiffs
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fail to set forth any plausible claim for relief against them.
at pp. 20-22.
A. Bivens Claims

In Bivens, the Supreme Court of the United States
recognized a cause of action for damages against a federal
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official who deprives a person of her federal constitutional or
statutory rights. 403 U.S. at 396. It is well settled,
however, that federal prosecutors, as well as federal-government
attorneys participating in civil proceedings, are entitled to
absolute immunity from suit for acts or omissions relating to
the judicial process. See Buckley v. Fitzsimmons, 509 U.S. 259,
272-73 (1993) (prosecutors generally); Butz v. Economou, 438
U.S. 478, 511-12 (1978) (civil attorneys); Bolin v. Story, 225
F.3d 1234, 1242 (11th Cir. 2000) (federal prosecutors) . A
government official seeking to assert absolute immunity bears
the burden of demonstrating that such immunity is warranted for
the function in question. Buckley, 509 U.S. at 269 (quoting
Burns v. Reed, 500 U.S. 478, 486 (1991), and Antoine v. Byers &
Anderson, Inc., 508 U.S. 429, 432 & n.4 (1993)). In other
words, a court deciding whether absolute immunity applies in a
given case must look to "the nature of the function performed,
not the identity of the actor who performed it." Id. (quoting
Forrester v. White, 484 U.S. 219, 229 (1988)). If the
government official is able to show that the complained-of

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actions were taken "in preparing for the initiation of judicial
proceedings or for trial" or occurred "in the course of his role
as an advocate for the [government]," then absolute immunity
shields him from suit for money damages. Id. at 273; see also
Bolin, 225 E'.3d at 1242 (absolute immunity applies to acts
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"taken in initiating a prosecution and in presenting the
government's case" (citing Imbler v. Pachtman, 424 U.S. 409,
430-31 (1976); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.
1999); and Fuilman v. Graddick, 739 F.2d 553, 558-59 (11th Cir.
1984))
The Individual Defendants have carried their burden of
establishing that they are entitled to absolute immunity from
Plaintiffs' Bivens action. It is undisputed that each of the
Individual Defendants serves as U.S. Attorney or Assistant U.S.
Attorney in this District. See Dkt. No. 5. Moreover, the
factual underpinnings of Plaintiffs' claims include only actions
that these Defendants allegedly took while representing the
government in prior civil proceedings: (1) the Individual
Defendants allegedly required that Plaintiff Angela. FavorsMorrell meet with the U.S. Marshals in response to her request
for certain information in prior civil actions; (2) they
allegedly threatened to pursue sanctions against her in a prior
action; (3) one of the Individual Defendants allegedly discussed
procedures for exchanging discovery with her; and (4) these

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Defendants allegedly misled courts and withheld evidence during
prior litigation. See id. at pp. 2-5. Even assuming the truth
of these allegations, as the Court must do at this stage, the
Individual Defendants are afforded absolute immunity from suit
for their conduct while functioning as government advocates.
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Thus, the Individual Defendants' Motion is GRANTED as to
Plaintiffs' damages claims under Bivens.
B. Claims Under Section 1983 and Section 1986

Section 1983 provides redress where a person acting under
color of state law violates another's federally protected
rights. 42 U.S.C. § 1983. Section 1986, by contrast, creates a
cause of action against any person who has knowledge of a
conspiracy to interfere with civil rights and has the power to
prevent the commission of such wrongs but neglects to do so.
Id. § 1986; see also id. § 1985 (conspiracy to interfere with
civil rights). Significantly, Section 1983 and the related
civil rights statutes do not apply where it is federal, rather
than state, action that is challenged. See Roots v. Callahan,
475 F.2d 751, 752 (5th Cir. 1973) ("It is settled that a suit
will not lie under [Section] 1983 against a federal official
acting under color of federal law." (citing Betha v. Reid, 445
F.2d 1163, 1164 (3d Cir. 1971); Williams v. R o gers, 449 F.2d

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513, 517 (8th Cir. 1971); and Norton v. McShane, 332 F.2d 855,
862 (5th Cir. 1964))).
In the instant matter, Plaintiffs challenge the conduct of
the Individual Defendants, who, as U.S. Attorney and Assistant
U.S. Attorneys, are indisputably federal, not state, officials.
As such, Plaintiffs cannot sustain a claim against these
Defendants under Section 1983 and Section 1986. The Individual
Defendants' Motion is, therefore, GRANTED as it relates to these
claims.
CONCLUSION

In light of the foregoing, the Government's Motion to
Dismiss (dkt. no. 16) and the Individuals Defendants' Motion to
Dismiss (dkt. no. 22) are GRANTED, and Plaintiffs' claims
against all Defendants are hereby DISMISSED.

Plaintiffs' Motion

for Legislative Consent To Waive Sovereign Immunity (dkt. no.
36), and the Individual Defendants' Motion to Strike the same
(dkt. no. 39), are DISMISSED as moot.

The Clerk of Court is

DIRECTED to enter the appropriate judgment of dismissal and to

close this case.

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc), the Court of Appeals for the Eleventh Circuit adopted as
binding precedent all of the former Fifth Circuit decisions prior to
September 30, 1981.
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SO ORDERED,

this 8TH day of June, 2016.

LISA GOOBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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