HALL EL v. UNITED STATES OF AMERICA

Filing 25

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 04/03/2013, that it is RECOMMENDED that Defendants' motion to dismiss (Docket Entry 13 ) be GRANTED for lack of subj ect matter jurisdiction, due to the immunity of Defendant, and for failure to state a claim. FURTHER RECOMMENDED that Plaintiff's motions for entry of default (Docket Entry 21 ) and for default judgment (Docket Entry 18 ) be DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM SALAAM HALL-EL,
Plaintiff,
v.
UNITED STATES and RUSTY PATE,
individually and in his official capacity
as Assistant District Manager, Social
Security Administration,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

1:11CV1037

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendant’s motion to dismiss or, in the
alternative for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1),
12(b)(6), and 56. (Docket Entry 13.) Plaintiff William Salaam Hall-El, appearing pro se,
opposes the motion. (Docket Entry 17.) Also before the court are Plaintiff’s motion for
default judgment (Docket Entry 18) and motion for entry of default (Docket Entry 21). For
the following reasons, it is recommended that the Court grant Defendant’s motion to
dismiss. It is further recommended that the Court deny Plaintiff’s motion for default
judgment and motion for entry of default.
I. BACKGROUND
Plaintiff filed this action in the District Court of Guilford County, North Carolina on
October 24, 2011. (Docket Entry 5.) The complaint named Rusty Pate, Assistant District
Manager with the Social Security Administration’s Greensboro Field Office, individually and

in his official capacity, as Defendant. On November 28, 2011, Defendants removed this
action to this Court pursuant to 28 U.S.C. §§ 1441, 1442 and 1446. (Docket Entry 1.) On
December 6, 2011, this Court ordered that “as to the state common law tort claims set forth
in Plaintiff’s complaint, the United States is substituted in place of the individual Defendant
Rusty Pate.” (Order, Docket Entry 9.) This court further ordered that Defendant Pate
would remain a defendant with regard to the constitutional tort claims. (Id.)
In his pro se complaint, Plaintiff alleges that on October 17, 2011, he went to the
Social Security office in Greensboro “in an attempt to correct” the name on his Social
Security card by adding the suffix “El” to his last name. (See Compl. at 5, Docket Entry 5.)
According to the allegations in the complaint, an unnamed SSA employee informed Plaintiff
that he would first have to obtain a court order changing his name before “–El” could be
reflected on his Social Security card. (Id.) Defendant Pate confirmed this requirement to
Plaintiff. (Id.) Plaintiff alleges that the “-El” suffix reflects his Moorish nationality and that
the demand was “made in accordance with [his] religious beliefs.” (Id. at 12.) Plaintiff also
alleges that he has “been involuntarily forced into an ‘unrighteous’, egregious state against
[his] religious beliefs” and that he has “been under extreme mental anguish at not being in
obedience to [his] Divine Creator after repeatedly being told by [Defendants] untrue
statements.” (Id. at 6.)
Plaintiff alleges that after leaving the Greensboro SSA office, he sent Defendant Pate
an e-mail requesting that he provide Plaintiff with “the ‘law’ that required [him] to get a
‘court ordered’ name change, when in fact the North Carolina Department of Motor
Vehicles and the North Carolina Department of Health & Human Services had both
2

honored [his] religious rights without issue.” (Compl. at 6.) Defendant Pate responded to
the e-mail, again telling Plaintiff that he could not change his name for Social Security
purposes without proper documentation. (Id.; see also Affidavit of Rusty Pate ¶ 6, Docket
Entry 14-1.)
Plaintiff subsequently filed this action alleging: (1) that Defendant Pate committed or
conspired to commit criminal and unconstitutional acts, including violating Plaintiff’s First,
Fourth, and Thirteenth Amendment rights under the United States Constitution, (2) a
violation of the Treaty of Peace and Friendship between Morocco and the United States
pursuant to Article VI of the United States Constitution, (3) fraud, (4) deprivation of
Plaintiff’s right to work, (5) intentional infliction of mental anguish, (6) involuntary servitude,
(7) hindrance of unlimited right to contract, and (8) violating or conspiring to violate
“United States Codes TITLE 22 CH 73, TITLE 18 CH 13 § 241, 242.” (Compl. at 7-8,
Docket Entry 5.)
II. DISCUSSION
1. Standard of Review
Pro se complaints are held to a less stringent standard than those drafted by
attorneys. Gordon v. Leeke, 574 U.S. 1147, 1151 (4th Cir. 1978).

A federal court is charged

with liberally construing a complaint filed by a pro se litigant to allow the development of a
potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court
is evaluating a pro se complaint, the plaintiff’s allegations are assumed to be true. Id. at 93
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The requirement of liberal
construction does not mean that the court can ignore a clear failure in the pleadings to allege
3

facts which set forth a federal claim, Weller v. Dep’t of Social Servs., 901 F.2d 387, 390-91 (4th
Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where
none exists.
Defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) for the lack of subject matter jurisdiction.

Lack of subject matter

jurisdiction may be raised at any time either by a litigant or the court. Mansfield, C & L. M.R.
Co. v. Swan, 111 U.S. 379, 382 (1884). Should a defendant challenge the existence of federal
subject-matter jurisdiction, the plaintiff bears the burden of showing the jurisdiction exists.
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982).
A “court should grant the Rule 12(b)(1) motion to dismiss ‘only if the material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of
law.”

Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). As the
party invoking federal jurisdiction in this case, Plaintiff has the burden of establishing the
existence of subject matter jurisdiction. Richmond, 945 F.2d at 768. This burden, at the
pleading stage, can be met by alleging sufficient facts to show that there is a proper basis for
jurisdiction. Fed. R. Civ. P. 8(a)(1) (a complaint “shall contain a short and plain statement of
the grounds upon which the court’s jurisdiction depends”).
Defendants also seek dismissal pursuant to Federal Rule of Civil Procedure 12 (b)(6)
for failure to state a claim or, in the alternative, for summary judgment pursuant to Rule 56.
A motion to dismiss under Rule 12 (b)(6) for failure to state a claim should be granted if the
4

complaint does not allege “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. In other words, the factual allegations must “be enough to raise a
right to relief above the speculative level.” Id. at 555. “Thus, while a plaintiff does not need
to demonstrate in a complaint that the right to relief is ‘probable,’ the complaint must
advance the plaintiff’s claim ‘across the line from conceivable to plausible.’” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting Twombly, 550 U.S. at 570).

As

explained by the United States Supreme Court:
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. The plausibility standard is not akin to probability
requirement, but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted).
A Rule 12 (b)(6) motion tests the sufficiency of a complaint and “does not resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Accordingly, a court
should “assume the truth of all facts alleged in the complaint and the existence of any fact
that can be proved, consistent with the complaint’s allegations.” E. Shore Mkts., Inc. v. J.D.
Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). Although the truth of the facts alleged
is assumed, courts are not bound by the “legal conclusions drawn from the facts” and “need
not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Id.
Under Rule 56, a “court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as
5

a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986). The facts and inferences to be drawn from the evidence must be viewed in the
light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th
Cir. 1991). The moving party “bears the initial burden of pointing to the absence of a
genuine issue of material fact.” Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th
Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party carries this
burden, “the burden then shifts to the non-moving party to come forward with facts
sufficient to create a triable issue of fact.” Id. at 718-19 (citing Anderson, 477 U.S. at 247-48).
2. Subject Matter Jurisdiction
Defendant Pate first argues that this court lacks subject matter jurisdiction to award
relief against Defendant Pate in his official capacity under the doctrine of sovereign
immunity and that Defendant Pate has not waived his immunity from suit. This argument
has merit. A suit to recover damages against the United States without its consent is barred
by the doctrine of sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212 (1983);
Campbell v. Social Sec. Admin., 446 Fed. Appx. 477, 482 (3d Cir. 2011); accord Glover v. Social Sec.
Admin., No. 1:12CV372, 2012 WL 1718827, at *3 (M.D.N.C. May 14, 2012). A suit against
a federal agency is a suit against the United States for the purposes of sovereign immunity,
and sovereign immunity cannot be avoided by suing individual federal employees. See Hines
v. Irvington Counseling Ctr., 933 F. Supp. 382, 388 (D.N.J. 1996) (finding a lack of subject
matter jurisdiction to hear civil rights claims against the Social Security Administration and
its employees in their official capacities, given absence of express waiver of the United
States’ sovereign immunity); Proffitt v. United States, 758 F. Supp. 342, 345 (E.D. Va. 1990)
6

(“[T]he United States is not a person within the meaning of § 1985 . . . [n]or can plaintiff
recover monetary damages against the individual defendants sued in their official capacity.”)
Accordingly, Plaintiff’s action as to Defendant Pate and the United States should be
dismissed for lack of subject matter jurisdiction.
3. Qualified Immunity
Defendant Pate also argues that the constitutional claims against him are barred
under the doctrine of qualified immunity because his conduct did not violate established
statutory or constitutional rights of which a reasonable person would have known. The
Court of Appeals for the Fourth Circuit, discussing qualified immunity, stated:
Qualified immunity shields public officials from personal liability for
performance of their official duties, provided that they do not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known. A court considers whether the rights allegedly violated by
the public official were clearly established at the time of the challenged
conduct, and whether such conduct was objectively reasonable. As such, if
there is a legitimate question as to whether an official’s conduct constitutes a
constitutional violation, the official is entitled to qualified immunity.
Martin v. St. Mary’s Dept. Social Servs., 346 F.3d 502, 505 (4th Cir. 2003) (internal quotations
and citations omitted).
Plaintiff here has failed to allege that Defendant Pate’s conduct (1) violated a federal
statutory or constitutional right that (2) was clearly established at the time of the conduct,
such that (3) an objectively reasonable Social Security employee would have understood that
the conduct violated that right. Moreover, as pointed out by Defendants, Defendant Pate’s
actions were not prohibited by federal law.

Under the Social Security Act, “The

Commissioner of Social Security shall require of applicants for social security account
numbers such evidence as may be necessary to establish the age, citizenship, or alien status,
7

and true identity of such applicants, and to determine which (if any) social security account
number has previously been assigned to such individual.” 42 U.S. § 405(c)(2)(B)(ii). Further,
Social Security regulations provide:
An applicant for an original social security number card must submit
documentary evidence that the Commissioner of Social Security regards as
convincing evidence of age, U.S. citizenship or alien status, and true identity.
An applicant for a replacement social security card must submit convincing
documentary evidence of identity and may also be required to submit
convincing documentary evidence of age and U.S. citizenship or alien status.
AN applicant for an original or replacement social security number card is also
required to submit evidence to assist us in determining the existence and
identity of any previously assigned number(s). A social security number will
not be assigned, or an original or replacement care issued, unless all the
evidence requirements are met.
20 C.F.R. § 422.107(a). Finally,
An applicant for an original social security number or a replacement social
security number card is required to submit convincing documentary evidence
of identity. Documentary evidence of identity may consist of a driver’s
license, identity card, school record, medical record, marriage record, passport,
Department of Homeland Security document, or other similar document
serving to identify the individual. The document must contain sufficient
information to identify the applicant, including the applicant’s name and (1)
the applicant’s age, date of birth, or parents’ names; and/or (2) a photograph
or physical description of the individual.
20 C.F.R. § 422.107(c).
This issue was addressed by a federal district court in Ohio, in Jennings-El v. Social
Security Admin., No. 1:07-cv-287, 2007 WL 1114237, at * 2 (S.D. Ohio April 12, 2007). The
court in Jennings dismissed the plaintiff’s claims that the SSA had violated his constitutional
rights by requiring him to obtain a name change before “-El” could be reflected on his Social
Security card. The court stated:

8

The requirement that plaintiff obtain proper verification of his identity before
a Social Security card may be issued does not deny plaintiff his right to use a
name which reflects his nationality. It simply reflects legitimate governmental
policies of reducing identity theft and ensuring fiscal responsibility. The
verification requirement does not, to this Court’s knowledge, violate plaintiff’s
constitutional rights. Nor is there any other logical construction of plaintiff’s
complaint from which the Court can divine a viable claim against the
defendant over which the Court might have jurisdiction.
Id. Similar considerations are at play in this case. Requiring an individual to have a
court ordered name change before changing the name on his Social Security card
simply does not violate that individual’s constitutional rights.
Moreover, internal policies of SSA, as documented in the Programs Operations
Manual System (POMS), specifically identify the forms of acceptable evidence necessary for
SSA processing of name changes. See POMS RM 10212.010, 2010 WL 835111 (Mem. Supp.
Mot. to Dismiss, Ex. A-4, Docket Entry 14-1.) Under these regulations, in the absence of a
change in marital or domestic partnership status, the SSA requires either a United States
court ordered name change or a United States amended/corrected birth certificate. Id. As
such, Defendant Pate’s conduct was clearly not prohibited by federal law. Defendant Pate’s
motion to dismiss on qualified immunity grounds should be granted.
4. State Law Claims
Plaintiff has alleged state law tort claims against the United States. Defendant argues
that these state law claims should be dismissed for failure to exhaust administrative remedies.
The court agrees. Defendant submitted the Declaration of Mark S. Ledford, a Division
Director in the Office of General Counsel, who states that “to the best of my knowledge,
information and belief, no administrative tort claim has been filed against SSA by William

9

Salaam Hall.” (Def.’s Mem., Ex. C, Declara. of Mark S. Ledford, Docket Entry 14-3.)
Under the Federal Tort Claims Act (FCTA):
An action shall not be instituted upon a claim against the United States for
money damages for . . . injury or loss . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall have
been finally decided by the agency in writing and sent by certified or registered
mail.
28 U.S.C. § 2675 (a). This exhaustion requirement is jurisdictional and cannot be waived. See
Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990).

Plaintiff has failed to file an

administrative claim for the injury and damages sought in his claim against Defendant
United States. Plaintiff’s failure to file claim with the proper administrative agency mandates
dismissal of the action under the Federal Torts Claim Act. Henderson v. United States, 785
F.2d 121, 124 (4th Cir. 1986).
5. Failure to State a Claim
As an additional ground for their motion to dismiss, Defendants argue that Plaintiff
has failed to state a claim upon which relief can be granted and that dismissal is proper
pursuant to Fed. R. Civ. P. 12 (b)(6).

This court has previously found that dismissal is

warranted for lack of subject matter jurisdiction and on the basis of sovereign immunity and
qualified immunity. Briefly, it is clear as well that Plaintiff has failed to state a claim against
the Defendants under the requirements of Iqbal and Twombly. Plaintiff has alleged no facts to
support a plausible claim against Defendants. The complaint is replete with contentions
regarding Plaintiff’s status as a Moorish national. Plaintiff alleges that he is “a MoorishAmerican protected by the Treaty of Peace and Friendship (1786 A.D. superseded 1836
A.D.) between Morocco and the United States . . .” (Compl. at 7) and later alleges that he is

10

“an internationally protected person pursuant to Title 18 U.S.C. section 112[.]” (Id. at 8.) In
this court, and others, it is well-recognized that organizations such as the Moorish (or
Washitaw) Nation are:
notorious organization[s] of scofflaws and ne’er-do-wells who attempt to
benefit from the protections of federal and state law while simultaneously
proclaiming their independence from and total lack of responsibility under
those same laws. Sanders-Bey v. United States, 267 F. App’x 464, 466 (7th Cir.
2008) (finding that the “Washitaw Nation . . . is not recognized by the United
States government”); Bybee v. City of Paducah, 46 F. App’x 735, 736-37 (6th Cir.
2002) (finding that the “Nation of Washitaw” is “fictional”); United States v.
Gunwall, No. 97-5108, 1998 U.S. App. LEXIS 18596, at *11 (10th Cir. Aug.
12, 1998) (rejecting claim that the court had no jurisdiction over a member of
the Washitaw as “frivolous”); Bey v. Louisiana, No. 08-cv-0250, 2008 WL
4072747 (W.D. La. July 11, 2008) (finding that plaintiff’s claim to land as a
member of the Washitaw was “patently frivolous” and rested on documents
of “dubious legal significance”); Great Seal Nat’l Ass’n of Moorish Affairs v. 46th
Dist. Ct. of Oakland County, No. 06-CV15625, 2007 U.S. Dist. LEXIS 3199,
2007 WL 169850 at *2 (E.D. Mich. Jan. 17, 2007) (dismissing claim that
plaintiffs owned several parcels of property by virtue of their Moorish ancestry
as “baseless, fantastic, and delusional” and finding the complaint to be
“indecipherable”); Khattab El v. U.S. Justice Dep’t, No 86-6963, 1988 WL 5117
at *5 (E.D. Pa. Jan. 22, 1988) (holding that “the United States has not
recognized the sovereignty of the Moorish Nation,” thus precluding sovereign
immunity.)
El-Bey v. United States, No. 1:08CV151, 2009 WL 1019999 (M.D.N.C. Jan. 26, 2009)
(unpublished). Plaintiff’s claims which rely on international treaties or organizations
and rights of Moorish nationals are clearly frivolous and do not state a claim against
Defendants.
6. Motions Relating to Entry of Default and Default Judgment
Plaintiff has moved for entry of default and for a default judgment against
Defendants. Neither of these motions have merit. Entry of default is appropriate where “a
party against whom a judgment for affirmative relief is sought has failed to plead or
11

otherwise defend.” Fed. R. Civ. P. 55 (a). On November 28, 2011, this case was removed
from state court by the filing of a notice of removal. (Docket Entry 1.) On November 28,
2011, the Defendants filed a motion for extension of time to answer or otherwise plead
(Docket Entry 4), which was granted on December 6, 2011. (Docket Entry 8.) Defendants
were given until December 28, 2011 to answer or otherwise plead. On December 27, 2011,
Defendant filed the instant motion to dismiss. (Docket Entry 13.) Defendants were not in
default and entry of default is not appropriate. Having found that entry of default is not
appropriate, Plaintiff may not obtain default judgment. See Fed. R. Civ. P. 55. Accordingly,
Plaintiff’s motions for entry of default and for default judgment should be denied.
III. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that Defendants’ motion to
dismiss (Docket Entry 13) be GRANTED for lack of subject matter jurisdiction, due to the
immunity of Defendant, and for failure to state a claim. It is further RECOMMENDED
that Plaintiff’s motions for entry of default (Docket Entry 21) and for default judgment
(Docket Entry 18) be DENIED.

Durham, North Carolina
April 3, 2013

12