WILKERSON, SR v. INDIANA STATE POLICE DEPARTMENT et al

Filing 39

ORDER granting FBI's 23 Motion to Dismiss. Signed by Judge Richard L. Young on 12/9/2011. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

MYRON WILKERSON, SR.,
Plaintiff,
vs.
INDIANA STATE POLICE
DEPARTMENT, FLOYD COUNTY
SHERIFF’S DEPARTMENT, SHERIFF
DARRELL W. MILLS OF THE FLOYD
COUNTY SHERIFF’S DEPARTMENT,
and FEDERAL BUREAU OF
INVESTIGATION,
Defendants.

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3:11-cv-038-RLY-WGH

ENTRY ON FBI’S MOTION TO DISMISS OR IN THE ALTERNATIVE
MOTION FOR SUMMARY JUDGMENT
Plaintiff, Myron Wilkerson, Sr., is an officer employed by the Indiana State Police
Department (“ISP”). After he was removed from a wire-tap investigation and was
subjected to an internal affairs investigation, Plaintiff filed a three-count Complaint
against the ISP, the Floyd County Sheriff’s Department, Sheriff Darrell W. Mills, and the
Federal Bureau of Investigation (“FBI”), alleging (1) race discrimination; (2) retaliation
for filing a charge of discrimination with the Equal Employment Opportunity
Commission, and (3) denial of due process rights based upon the Fourteenth Amendment
of the United States Constitution, in violation of 42 U.S.C. § 1983 (“Section 1983”). The
FBI moves to dismiss, or in the alternative, moves for summary judgment. For the

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reasons set forth below, the Motion is GRANTED.
The court first addresses Plaintiff’s discrimination and retaliation claims under
Title VII of the Civil Rights Act of 1964 (“Title VII”). While Title VII extends to
discrimination in the federal workplace, the relevant statutory section provides that the
action must be brought by a federal employee. See 42 U.S.C. § 2000e-16 (“All personnel
actions affecting employees . . . in executive agencies . . . shall be free from any
discrimination based on race, color, religion, sex, or national origin.”); see also Small v.
Choa, 398 F.3d 894, 897-98 (7th Cir. 2005) (affirming dismissal of employment
discrimination claim against non-employer); Moret v. Harvey, 381 F.Supp.2d 458, 465
(D. Md. 2005) (holding that a “threshold requirement for imposing Title VII liability
against the federal government is that the plaintiff be an ‘employee’ of the federal agency,
and citing 42 U.S.C. § 2000e-16). Plaintiff’s Complaint alleges that he is an employee of
the ISP, not the FBI. Accordingly, Plaintiff’s Title VII race discrimination and
retaliations claims against the FBI must be dismissed.
This leaves for consideration Plaintiff’s Section 1983 Fourteenth Amendment due
process claim. As correctly argued by the FBI, the doctrine of sovereign immunity bars
lawsuits “prosecuted against the United States,” unless the United States has consented to
be sued. United States v. Rural Elec. Convenience Co-op. Co., 922 F.2d 429, 434 (7th
Cir. 1991) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat) 264 (1821)); Williamson v.
United States Dep’t of Agric., 815 F.2d 368, 373 (5th Cir. 1987). Thus, in order to sue
the United States in federal court, a party must “identify a statute that confers subject
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matter jurisdiction on the district court” and “a federal law that waives the sovereign
immunity of the United States to the cause of action.” Macklin v. United States, 300 F.3d
814, 818 (7th Cir. 2002).
Here, Plaintiff cannot maintain his Section 1983 Fourteenth Amendment due
process claim against the FBI because he cannot show any waiver of sovereign immunity
to support his claims. Moreover, only “persons” may be sued for the deprivation of one’s
constitutional rights, and the FBI is not such a “person.” See 42 U.S.C. § 1983 (providing
that “[e]very person” who acts “under color of” state law to deprive another of
constitutional rights shall be liable in a suit for damages); Accardi v. United States, 435
F.2d 1239, 1241 (3d Cir. 1970); Hindes v. F.D.I.C., 137 F.3d 148, 159 (3d Cir. 1998)
(holding that a federal agency is not a “person” subject to Section 1983 liability).
Accordingly, the court must GRANT the FBI’s Motion to Dismiss (Docket # 23).

SO ORDERED this 9th day of December 2011.

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RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Electronic Copies to:
Laura Lee Bowker
INDIANA ATTORNEY GENERAL
[e-mail]

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Wade J. Hornbacher
INDIANA ATTORNEY GENERAL
[e-mail]
R. Jeffrey Lowe
KIGHTLINGER & GRAY, LLP
[e-mail]
Mark Kelly Phillips
MARK K. PHILLIPS, ATTORNEY AT LAW, P.C.
[e-mail]
Debra G. Richards
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Dawnya G. Taylor
[e-mail]

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