Brown v. Haley et al

Filing 18

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATIONS adopting 10 Report and Recommendations and dismissing the plaintiff's complaint without prejudice and without issuance and service of process for failure to state a claim; denying 15 Motion to order clerk to issue summons filed by Zack B Brown. Signed by Chief Judge Margaret B Seymour on 4/10/2012. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Zack B. Brown,

)
Plaintiff,
)
)
vs.
)
)
Nikki Haley, in her official capacity as
)
Governor; State of South Carolina Vital
)
Records; and Commissioner, S.C.D.H.E.C, )
Vital Records,
)
Defendants.
)
)

C.A. No. 3:11-2080-MBS
ORDER AND OPINION

Plaintiff Zack B. Brown (“Plaintiff”) filed this pro se action pursuant to 42 U.S.C. § 1983
alleging that Defendants violated his due process rights by denying him a copy of his birth
certificate. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, D.S.C., the
within action was referred to United States Magistrate Judge Joseph R. McCrorey for pretrial
handling.
Background
Plaintiff is an African American male. Plaintiff alleges he was born in Camden, South
Carolina in 1946. Plaintiff attended Morehouse College in Atlanta, Georgia. Subsequently,
Plaintiff earned a medical degree from Meharry Medical School in Nashville, Tennessee.
Plaintiff practiced medicine in Detroit, Michigan for over thirty years, prior to his 2007
conviction for health care fraud.

Plaintiff is currently serving a 200-month federal prison

sentence at FCI-Fort Dix in New Jersey. While incarcerated, Plaintiff contacted Defendants in
an attempt to obtain a copy of his birth certificate. Plaintiff also solicited the help of his family
members in contacting Defendants. Ultimately, Plaintiff did not receive a copy of his birth
certificate.

On August 8, 2011, Plaintiff filed the instant complaint. Plaintiff paid the full filing fee.
Plaintiff alleges he has been denied his birth certificate without due process under the Fourteenth
Amendment. He further alleges that Defendants have treated him and his family with disrespect
based on his race. Plaintiff alleges that he was asked by Defendant State of South Carolina Vital
Records (“Defendant Vital Records Department”) to submit certain documents and pay certain
fees, which he claims he has done. Elsewhere in the complaint, Plaintiff indicates that Defendant
Vital Records Department had requested ten years of driving records and his children’s birth
certificates, which Plaintiff states he has not provided because he deems those materials
irrelevant.

Plaintiff further alleges that his family members have made many requests to

Defendant Vital Records Department in an attempt to obtain Plaintiff’s birth certificate and that
they were met with rudeness and disrespect. Plaintiff further alleges that he complained to
Defendant Commissioner, S.C.D.H.E.C., Vital Records (“Defendant Commissioner”) about his
difficulty with Defendant Vital Records Department, but that Defendant Commissioner ignored
his letters and phone calls.
One of Plaintiff’s family members inquired about Plaintiff’s birth certificate with a state
employee working in the Office of the Governor, Defendant Nikki Haley (“Defendant Haley”).
Plaintiff contends that this employee refused to give his name and stated that Defendant Haley’s
office does not issue birth certificates and that S.C.D.H.E.C. is the correct place to obtain this.
Plaintiff alleges that when his family member indicated to the state employee that Defendant
Vital Records Department, the relevant department within S.C.D.H.E.C., had not been
cooperating, the employee began an angry tirade in which he referred to Plaintiff as a “coon in
federal prison,” “son of a b****” and stated that “before the 1950’s, 90% of all n**gers born,
especially in the South were delivered by midwives and some could not read or write; and being

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so ignorant, they did not file birth record reports.” Plaintiff alleges that he wrote to Defendant
Haley’s office numerous times regarding his inability to obtain his birth certificate but received
no response.
Plaintiff states that Defendants’ refusal to provide him with his birth certificate is
preventing him from being released from federal prison.1 Furthermore, Plaintiff states that he
spent $1,500.00 to $2,000.00 trying to obtain his birth certificate and that the poor treatment by
Defendants caused him to become ill with hypertension.

Plaintiff seeks declaratory and

injunctive relief; $3,000,000.00 in damages assessed against Defendant Haley; and nominal,
compensatory, and punitive damages assessed against each Defendant.
Magistrate Judge’s Findings
The Magistrate Judge reviewed the complaint pursuant to the procedural provisions
outlined in 28 U.S.C. § 1915(A). Pursuant to §1915(A), the court can dismiss a prisoner’s
complaint against a governmental entity or officer of a governmental entity without the issuing
of a summons if the complaint is frivolous, malicious, or fails to state a claim upon which relief
may be granted. The Magistrate Judge noted that §1915(A)’s screening mechanism is applicable
to all prisoner suits against governmental entities, regardless of whether or not the prisoner
proceeds in forma pauperis. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).
The Magistrate Judge found that Defendant Vital Records Department is an agency of the
State of South Carolina and accordingly is immune to suit in federal court by a citizen of any
state pursuant to the Eleventh Amendment. See U.S. Const. amend. XI; see also Hans v.
Louisiana, 134 U.S. 1 (1889). Additionally, the Magistrate Judge stated that the clear language
of § 1983 requires that a “person” be sued, noting that a state agency was not a “person” within

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Plaintiff fails to explain how his inability to obtain a birth certificate is what is keeping him in federal custody. It
appears that Plaintiff continues to be in federal custody because his federal prison sentence extends until 2021.

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the meaning of § 1983. See Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
As for Plaintiff’s request for monetary damages against Defendant Haley and Defendant
Commissioner, the Magistrate Judge found that this type of relief may not be sought against
government actors in their official capacity. See id. at 71.
With regard to Plaintiff’s request for injunctive relief, wherein he requested that the court
compel Defendants to issue Plaintiff his birth certificate, the Magistrate Judge construed the
request to be a mandamus action. The Magistrate Judge noted that mandamus relief is not
available in this case because the court does not have supervisory control over a state employee.
The Magistrate Judge cited to Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586
(4th Cir. 1969), for the proposition that federal courts are without jurisdiction to issue a writ of
mandamus compelling a state employee to act. Id. at 587.
Discussion
Standard of Review
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which an objection is made. The court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the Magistrate Judge. The court may
also receive further evidence or recommit the matter to the Magistrate Judge with instructions.
28 U.S.C. § 636(b)(1).
Plaintiff’s Objections
Plaintiff’s first objection is that he never consented to having a Magistrate Judge rule on

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any portions of his case. Plaintiff’s objection is without merit, because the Magistrate Judge did
not rule on any portion of his case. As stated above, the Magistrate Judge only makes a
recommendation to this court which recommendation has no presumptive weight. This court has
conducted a de novo review of Plaintiff’s complaint.
Plaintiff’s second objection is that the Magistrate Judge misinterpreted the Eleventh
Amendment, because the constitutional text itself does not include the word “absolute
immunity.” Furthermore, Plaintiff objects to an interpretation of the Eleventh Amendment that
permits the United States government to sue state governments and state officials but does not
permit state citizens to do the same. Plaintiff’s objection is without merit. The Magistrate Judge
correctly noted that state governments are immune from any suit brought in federal court by an
individual state citizen.
Plaintiff’s third objection is that a writ of mandamus is not at issue in this case and has no
bearing on the matter before the court. Plaintiff fails to explain why his claim is not essentially a
mandamus action, in light of the fact that he is requesting the court to compel state government
employees. The court agrees with the Magistrate Judge’s finding that Plaintiff is requesting a
writ of mandamus and that the court is without jurisdiction to issue a writ of mandamus to
compel a state employee to act.
Plaintiff fourth objection is that the Magistrate Judge “misquotes” 28 U.S.C. § 1915(A)
as permitting him to rule on his case. Plaintiff’s objection is without merit. The Magistrate
Judge correctly cited §1915(A) and as stated before, the Magistrate Judge has made no ruling as
to Plaintiff’s complaint.
Plaintiff’s fifth objection is that his complaint should be titled a “Bivens” action because
he is in federal custody. Plaintiff’s objection is without merit. The operative question is what

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type of Defendant, federal or state entity, is being sued. Since Plaintiff was suing the state
government and state government officials, the Magistrate Judge correctly construed Plaintiff’s
action as being filed pursuant to 42 U.S.C. § 1983.
Plaintiff’s sixth objection is that the Magistrate Judge’s finding that a state cannot be
subject to suit pursuant to the Eleventh Amendment is erroneous because Plaintiff did not sue the
state of South Carolina, but rather, sued a state agency. Plaintiff’s objection is without merit.
Eleventh Amendment state immunity extends to state agencies and instrumentalities such as
Defendant Vital Records Department. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 280 (1977). Lastly, Plaintiff states that the court must refund his $350.00 filing
fee if the Clerk of Court is not going to issue a summons. Plaintiff’s objection is without merit,
because the filing fee is non-refundable regardless of whether the Clerk issues a summons.
Furthermore, §1915(A) authorizes the court to dismiss this action prior to the issuance of a
summons.
The court has conducted a de novo review of Plaintiff’s complaint. The court agrees with
the Magistrate Judge’s finding that Plaintiff’s § 1983 suit against Defendant Vital Records
Department fails because Defendant Vital Records is a state agency entitled to Eleventh
Amendment immunity. Likewise, the court agrees with the Magistrate Judge’s finding that
Plaintiff’s suit for monetary relief against Defendant Haley and Defendant Commissioner also
fails, because these Defendants are immune to suit for monetary damages in their official
capacities. See Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996). To the extent that Plaintiff is
suing Defendant Commissioner in his individual capacity, Plaintiff has alleged no facts
supporting an inference that Defendant Commissioner or his staff members committed a
constitutional or federal statutory violation against Plaintiff. Lastly, as the Magistrate Judge

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correctly noted, a federal district court may issue a writ of mandamus only against an employee
or official of the United States. See Gurley, 411 F.2d at 587; see also Davis v. Lansing, 851 F.2d
72 (2d 1988). Accordingly, Plaintiff’s complaint is properly subject to dismissal pursuant to 28
U.S.C. § 1915(A) for failure to state a claim upon which relief can be granted.
On March 7, 2012, Plaintiff filed a motion styled “motion to order clerk to forward
summons to U.S. Marshals service for process.” The court construes this as a request that the
court issue a summons to Defendants. For the reasons stated above, the court denies Plaintiff’s
motion and summarily dismisses Plaintiff’s complaint without the issuance of a summons.
Conclusion
After a thorough review of the Report and Recommendation, the Plaintiff’s objections,
the record in its entirety, and the applicable law, the court adopts the Magistrate Judge’s Report
and Recommendation and incorporates it herein by reference.

Plaintiff’s complaint is

DISMISSED without prejudice for failure to state a claim upon which relief can be granted,
pursuant to 28 U.S.C. § 1915(A). Furthermore, Plaintiff’s motion to order clerk to issue a
summons is denied (ECF No. 15).

IT IS SO ORDERED.
s/ Margaret B. Seymour
Margaret B. Seymour
Chief United States District Judge
April 10, 2012
Columbia, South Carolina

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