Leitgeb v. State of South Carolina Department of Motor Vehicles, The et al

Filing 84

ORDER RULING ON REPORT AND RECOMMENDATIONS granting 67 Motion to Dismiss for Failure to State a Claim, filed by State of South Carolina, The, granting 39 Motion to Dismiss, filed by Linda Annette Grice, State of South Carolina Department of Motor Vehicles, The adopting 75 Report and Recommendations. Signed by Honorable Timothy M Cain on 11/23/11. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION

Lawrence Leitgeb,
Plaintiff,
v.

The State of South Carolina
Department of Motor Vehicles;
The State of South Carolina;
and Linda Annette Grice,
Defendants.
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C/A No. 7:10–2989-TMC

OPINION & ORDER

Lawrence Leitgeb (“Plaintiff”), proceeding pro se, filed this action pursuant to 42
U.S.C. § 1983. This matter is before the Court on the Magistrate Judge’s Report and
Recommendation filed August 23, 2011, recommending that the court grant Defendants
the State of South Carolina Department of Motor Vehicles (“SCDMV”) and Linda
Annette Grice’s (“Grice’s”) Motion to Dismiss or, in the alternative, Motion for Summary
Judgment (Dkt. # 39) and Defendant the State of South Carolina’s (“State’s”) Motion to
Dismiss (Dkt. # 67). (Dkt. # 75).
The Magistrate Judge’s Report and Recommendation is made in accordance
with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this court.

The

recommendation has no presumptive weight. The responsibility to make a final
determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo determination of those portions of

the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Background/Procedural History
In his seventy-nine page Complaint and two addendums, Plaintiff alleges
numerous claims of purported constitutional violations including: the denial of the right
to travel, vote, a trial, pled the Fifth; contract; assembly; overthrow the government; and
practice religion; and violations of Equal Protection and Double Jeopardy clauses.
(Compl. at 3-5, 7, 18, 23, 26, 32, 35, 54, 58). Plaintiff also alleges Defendants have
violated the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb through
2000bb-4.

(Compl. at 44).

Plaintiff’s allegations stem from SCDMV’s denial of a

driver’s license to Plaintiff because he refuses to submit his Social Security number. He
alleges the practice is discriminatory toward Christians and violates his religious rights
under the RFRA.

Plaintiff also alleges Social Security is a Ponzi scheme and he

believes that the use of his Social Security number for any reason other than the Social
Security program violates privacy laws. (Compl. at 57).

Plaintiff alleges Defendant

SCDMV has denied him the right to travel and vote and has denied him “citizenship of
the State of South Carolina.” (Compl. at 58, 59). Plaintiff also alleges that the demand
for a Social Security number by SCDMV is based on the “deadbeat dad” statute and
requiring him to submit a Social Security number to obtain a license causes him to have
him prove his innocence while denying his right to a trial. (Compl. at 17).
Plaintiff originally filed this Complaint in the Spartanburg County Court of
Common Pleas on October 12, 2010. On November 17, 2010, Defendants SCDMV and

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Grice removed the matter to federal court.1

On January 18, 2011, Plaintiff filed two

supplements to the Complaint. (Dkt. # 20). On March 25, 2011, Defendants SCDMV
and Grice filed a Motion to Dismiss or alternatively for Summary Judgment. (Dkt. # 39).
On June 28, 2011, the State also filed a Motion to Dismiss. (Dkt. # 67). Plaintiff filed
responses opposing both motions. (Dkt. # 43; 72).
In her Report, the Magistrate Judge states that the court lacks subject matter
jurisdiction over Defendants SCDMV and the State based upon Eleventh Amendment
immunity. (Report at 12). Further, the Magistrate Judge finds that the Plaintiff has
failed to allege facts to support a deprivation of a federal right by any of the Defendants.
(Report at 13 & n. 9). The Magistrate Judge recommends that the Defendants’ motions
to dismiss be granted and that this action dismissed.
Plaintiff was advised of his right to file objections to the Report and
Recommendation (Dkt. # 75 Attach. #1).

On September 7, 2011, Plaintiff filed

objections to the Report and Recommendation. (Dkt. # 80).
Standard of Review
A motion to dismiss under Rule 12(b)(1), Fed. R. Civ. P, examines whether the
complaint fails to state facts upon which jurisdiction can be founded. The burden of
proving subject matter jurisdiction in response to a Rule 12(b)(1) motion to dismiss is on
the plaintiff, the party asserting jurisdiction. Richmond, Fredericksburg & Potomac R.R.
v. United States, 945 F.2d 765, 768 (4th Cir.1991). The court should grant the motion
“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) (internal quotation marks and citations omitted).

1

At the time this case was removed, the State had not yet been served.
3

When a defendant files a motion to dismiss the plaintiff's complaint for lack of
personal jurisdiction under Rule 12(b)(2), Fed. R. Civ. P., “the burden is on the plaintiff
to establish the existence of a ground for exercising such jurisdiction.” ESAB Group,
Inc. v. Centricut, LLC, 34 F.Supp.2d 323, 328 (D.S.C.1999). In the absence of an
evidentiary hearing, the court may rely on the parties' pleadings, affidavits, and other
legal documents, and the plaintiff need only make a prima facie showing of jurisdiction.
Mylan Lab., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993). “In considering a challenge
on such a record, the court must construe all relevant pleading allegations in the light
most favorable to the plaintiff, assume credibility, and draw the most favorable
inferences for the existence of jurisdiction.” Combs v. Bakker, 886 F.2d 673, 676 (4th
Cir.1989).
When considering a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P.,
the court must accept as true the facts alleged in the complaint and view them in a light
most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999).
“To survive a motion to dismiss, a complaint 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, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell
Atlantic 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. Although “a
complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual
allegations,” a pleading that merely offers “labels and conclusions,” or “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Likewise, “a complaint [will not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancements.’ “ Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
4

DISCUSSION
The court has carefully reviewed Plaintiff's objections and finds that many of his
objections are non-specific, unrelated to the dispositive portions of the Magistrate
Judge's Report and Recommendation, or merely restate his claims. While most of the
Plaintiff’s objections are so lacking in merit that they do not warrant discussion, Plaintiff
does specifically state this action should not be dismissed for two reasons:
1. The Fourth District Court and/or Magistrate Judge
Jacquelyn D. Austin has erred in their assessment of the
Privacy Act of 1974 in light of subsequent laws.
2. Congress overstepped its Constitutional boundaries in
passing legislation relating to Social Security under the light
of the Tenth Amendment.
(Objections at 4). Before turning to these specific objections, the court notes that while
Plaintiff contends the Magistrate Judge erred in focusing on Plaintiff’s religious
objections, (Objections at 1), Plaintiff states he is “willing to relinquish any claim to [his]
religious objections in an attempt to force this Court to examine [his] Constitutional
objections.” Id. Plaintiff then specifically states that he “relinquishes all claims to the
Religious Freedom Restoration Act in an attempt to force this Honorable Court to
address the more important Constitutional issues presented in this lawsuit.” (Objections
at 4). Having waived his claims based upon religion, Plaintiff’s objections to the
Magistrate Judge’s report in regard to these claims are now moot.
As noted above, the Magistrate Judge determined that Eleventh Amendment
immunity divests this court of subject matter jurisdiction and thus she recommended
Plaintiff’s Complaint be dismissed for lack of subject matter jurisdiction as to Defendants
SCDMV and the State. (Report at 12).2 Further, the Magistrate Judge alternatively
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In his objections, Plaintiff's does not directly address the issue of Defendants’
Eleventh Amendment immunity. In the absence of a timely filed, specific objection, the
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determined even if the Defendants SDMV and the State were not entitled to Eleventh
Amendment immunity, Plaintiff failed to state a claim against any of the Defendants
(Report at 13. n 9) and, as discussed below, the court agrees with that
recommendation.
In his first specific objection, Plaintiff contends that the Magistrate Judge erred in
her assessment of the privacy Act in light of subsequent laws. The Magistrate Judge
relied upon the holding in North Carolina ex. Rel. Kasler v. Howard, 323 F.Supp.2d
6754 (W.D.N.C. 2003). In Kasler, the district court noted that the Tax Reform Act of
1976 expressly exempts state agencies, such as SCDMV, from the Privacy Act when
requiring disclosure of a SS number for the administration of a driver’s license. Id. at
679. Therefore, the court held that “the requirement that a person disclose their SS
number prior to the DMV’s issuance of a driver’s license does not violate the Privacy Act
of 1974” Id.3 Plaintiff argues that the “[Magistrate Judge] and/or the Court in Kasler v.
Howard errs in this matter.” (Objections ant 5). He argues that the “[Magistrate Judge]

Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.2005). The Magistrate
Judge recommended that Defendants SCDMV and the State be dismissed based on
Eleventh Amendment immunity without any discussion as to whether these Defendants
waived their Eleventh Amendment immunity by removing this case to federal court.
Lapides v. Board of Regents of the Univ. System of Georgia, 535 U.S. 613, 619
(2002)(holding it would be inconsistent for a State both to invoke federal jurisdiction
through removal and claim Eleventh Amendment immunity). However, the Fourth
Circuit has narrowly interpreted the holding in Lapides, noting that the Supreme Court
specifically addressed only whether a state that removes an action to federal court
having already consented to suit in its own courts can invoke Eleventh Amendment
immunity . . . .” Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir. 2005). After a
careful review of the record in this case, and the holdings in Lapides and Stewart, it
appears that Defendants did not consent to suit in state court prior to removing the
action to this court and thus the Magistrate Judge’s recommendation regarding Eleventh
Amendment immunity is not clearly erroneous.
3

The court also found that requiring the disclosure of a SS number in order to
obtain a driver’s license did not violate the First Amendment. Kasler, 323 F.Supp. 2d.
679-80.
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completely ignores new law, namely the Florida, et.al., v. US HHS case.” (Objections at
2).
Although Plaintiff failed to provide a citation for this case, the court assumes he is
referring to Florida ex. Rel. Bondi v. U.S. Department of Health & Human Services, 780
F.Supp.2d 1256, 2011 WL 285683 (N.D.Fla. 2011), cert. granted in part by Florida v.
Department of Health and Human Services, --- S.Ct. ----, 2011 WL 5515165 (U.S. Nov
14, 2011), where the issue is whether Congress can invoke its Commerce Clause
power to compel individuals to buy insurance as a condition of lawful citizenship or
residency. The court finds this case to be inapplicable to the claims raised by the
Plaintiff in his Complaint and agrees with the Magistrate Judge’s conclusion that the
issue in Kasler is not only directly on point to the instant case, but its holding is
persuasive.4 Accordingly, the court finds Plaintiff’s first objection to be without merit.
Furthermore, the court finds Plaintiff’s second objection that “Congress
overstepped its Constitutional boundaries in passing legislation relating to Social
Security under the light of the Tenth Amendment” relates to an issue which the
Magistrate Judge did not even address in her Report. Thus, the court declines to
address this objection as it is not the proper subject matter of an objection pursuant to
Rule 72, Fed.R.Civ.P.
Accordingly, after a thorough review of the Report and Recommendation and the
record in this case, the court adopts the Magistrate Judge’s Report and

4

Additionally, the court notes that to the extent that Plaintiff attempts to bring
claims under the Privacy Act against Defendant Grice, such claims must fail because
such actions can only be brought against agencies. See 5 U.S.C. § 552a(g)(1).
Because the proper defendant in a Privacy Act action is an agency and not individual
employees, see Adams v. Compton, 2005 WL 2006975 (W.D. Va. Aug. 17, 2005),
Plaintiff's Privacy Act claims against Defendant Grice must be dismissed.
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Recommendation (Dkt. # 75) and incorporates it herein. It is therefore ORDERED that
SCDMV and Grice’s Motion to Dismiss (Dkt. # 39) and the State of South Carolina’s
Motion to Dismiss (Dkt. # 67) are GRANTED and this action is DISMISSED with
prejudice.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge

Greenville, South Carolina
November 23, 2011

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.

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