Walker v. Harmon et al
Filing
48
ORDER denying 35 Motion for Summary Judgment; denying 46 Motion to Amend/Correct; denying 21 Motion for Default Judgment; granting 23 Motion to Set Aside Default; granting in part and denying as moot in part 29 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Jeffrey L. Viken on 9/26/16. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 15-5037-JLV
CLAYTON WALKER,
Plaintiff,
vs.
JOSEPH HARMON, individual
capacity, and BLACK HILLS FUGITIVE
TASK FORCE,
ORDER
Defendants.
INTRODUCTION
On May 11, 2015, plaintiff Clayton Walker filed a complaint against
defendants pursuant to 42 U.S.C. § 1983. (Docket 1). Defendants Black Hills
Fugitive Task Force (“Task Force”) failed to respond, and the clerk of court
entered default in Mr. Walker’s favor. (Docket 20). Defendants move to set
aside the entry of default and to dismiss Mr. Walker’s complaint. (Dockets 23
& 29). Mr. Walker moves for default judgment and summary judgment.
(Dockets 21 & 35). The court gave notice to the parties it was converting
portions of defendants’ motion to dismiss into a motion for summary judgment.
(Docket 42). Mr. Walker also moves to amend his complaint. (Docket 46). For
the reasons below, the court grants in part and denies in part defendants’
motions and denies plaintiff’s motions.
DISCUSSION
I.
Defendant Task Force’s motion to set aside the entry of default
“The court may set aside an entry of default for good cause . . . .” Fed. R.
Civ. P. 55(c). “When examining whether good cause exists, the district court
should weigh ‘whether the conduct of the defaulting party was blameworthy or
culpable, whether the defaulting party has a meritorious defense, and whether
the other party would be prejudiced if the default were excused.’ ” Stephenson
v. El-Batrawi, 524 F.3d 907, 912 (8th Cir. 2008) (citing Johnson v. Dayton
Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir. 1998)). The court will focus on the
meritorious defense aspect of good cause because it is relevant to this case.
A.
Existence of a meritorious defense
Showing an existing meritorious defense “underscore[s] the potential
injustice of allowing the case to be disposed of by default, . . . thus triggering
the incessant command of a court’s conscience that justice be done in light of
all the facts.” Johnson, 140 F.3d at 784 (internal citations and quotation
marks omitted). “Whether a meritorious defense exists is determined by
examining whether the proffered evidence would permit a finding for the
defaulting party.” Stephenson, 524 F.3d at 914 (citing Johnson, 140 F.3d at
785) (internal quotation marks and other citations omitted). “The underlying
concern is . . . whether there is some possibility that the outcome . . . after a
full trial will be contrary to the result achieved by the default.” Id. (internal
citation and quotation marks omitted).
2
In its motion to set aside the entry of default, defendant Task Force
asserts it is not an entity subject to suit. (Docket 24 at pp. 7-8). In support of
its motion, the Task Force provides a declaration from defendant Joseph
Harmon, a Deputy United States Marshal and member of the Task Force,
explaining the nature of the Task Force. (Docket 25 at pp. 1-3). Plaintiff’s
response to the Task Force’s motion reasserts his motion for a default
judgment, but does not explain whether the Task Force can be sued. (Dockets
32 at pp. 1-2 and 43 at pp. 5-6).
In Brown v. Fifth Judicial Dist. Drug Task Force, the United States Court
of Appeals for the Eighth Circuit, on plain error review, upheld a district court’s
determination the defendant Task Force was a multi-governmental unit that
was not capable of being sued. 255 F.3d 475, 476-78 (8th Cir. 2001). In
support of this conclusion, the Eighth Circuit noted “authorities more directly
in point appear to be uniform in holding that drug task forces similar to the
defendant in this case are not separate legal entities subject to suit.” Id. at
477-78 (citing Eversole v. Steele, 59 F.3d 710 (7th Cir. 1995); Hervey v. Estes,
65 F.3d 784, 792 (9th Cir. 1995); Dillon v. Jefferson County Sheriff’s
Department, 973 F. Supp. 626 (E.D. Tex. 1997); Alexander v. City of Rockwall,
No. CIV.A. 3:95-CV-0489, 1998 WL 684255 (N.D. Tex., Sept. 29, 1998)). The
core question in these cases is whether creation of the task force meant to form
a separate legal entity. See, e.g., Eversole, 59 F.3d at 791-92. Based on the
declaration of Deputy Harmon, the Task Force in this case is not a discrete law
enforcement agency. (Docket 25 at p. 3). The Task Force is “a joint,
3
intergovernmental cooperative law enforcement effort to locate and arrest
federal, state, and local fugitives.” Id. The Task Force is not subject to suit.
See Brown, 255 F.3d at 476-78. Because the Task Force lacks the capacity to
sue or be sued, it has a meritorious defense to plaintiff’s claims. Pursuant to
Fed. R. Civ. P. 55(c), the court grants the motion to set aside the entry of
default against the Task Force.1
II.
Plaintiff’s motion for default judgment as to the Task Force
The court denies plaintiff’s motion for default judgment. (Docket 21).
III.
Defendants’ motion to dismiss for insufficient service of process
Following the August 1, 2016, order plaintiff accomplished service in
compliance with Rule 4(i). (Docket 44 at p. 1).2
IV.
Defendants’ motion to dismiss for lack of subject matter jurisdiction
In their Rule 12(b)(1) motion to dismiss, defendants argue sovereign
immunity bars plaintiff’s suit against the Task Force and Deputy Harmon.
(Docket 30 at pp. 8-10). The United States and its agencies are generally
immune from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from
suit.”); Brown v. United States, 151 F.3d 800, 803-04 (8th Cir. 1998).
“Sovereign immunity is a jurisdictional issue . . . .” Rupp v. Omaha Indian
1Because
the Task Force meets the good cause standard by showing a
meritorious defense, it is not necessary to examine other options for good cause
in Fed. R. Civ. P. 55(c). Section IV of this order, discussing the Task Force’s
sovereign immunity defense, applies to this section and is another example of a
meritorious defense. See infra Section IV.
2The
court denies as moot defendants’ motion to dismiss for failure to
comply with Fed. R. Civ. P. 4(i). (Docket 30 at p. 10).
4
Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995). If the government “possess[es]
sovereign immunity, then the district court [has] no jurisdiction to hear
[plaintiff’s claims].” Id.
For the purposes of defendants’ 12(b)(1) motion, the court treats
plaintiff’s claims against the Task Force as claims against the United States
Marshals Service. As explained above, the Task Force is not a legal entity
subject to suit. According to Deputy Harmon, the Marshals Service “operates
and supervises the Task Force . . . . [as] a joint operation of all participating
law enforcement agencies, not a separate law enforcement agency.” (Docket 25
at p. 3). To the extent plaintiff’s claims could reach an entity with the capacity
to be sued, the Marshals Service is that entity. Plaintiff cannot bring his
claims without identifying a basis for waiver of sovereign immunity by the
United States Marshals Service. See Meyer, 510 U.S. at 475.
Plaintiff’s claims against Deputy Harmon in his official capacity function
as a suit against the United States. See Olivares v. L.A. Rampart Station, Civ.
No. 14-5061, 2014 WL 6453833, at *3 (D.S.D. Nov. 17, 2014). For Mr. Walker
to sue Deputy Harmon, the waiver of sovereign immunity by the United States
must be “unequivocally expressed.” Hagemeier v. Block, 806 F.2d 197, 202
(8th Cir. 1986) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980))
(internal quotation marks omitted).
Because Mr. Walker is proceeding pro se, his pleading must be liberally
construed and his complaint, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
5
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).
Plaintiff’s complaint cites 28 U.S.C. § 1331, 42 U.S.C. § 1983 and 28 U.S.C.
§ 13433 as the bases for the court’s jurisdiction. (Docket 1 at pp. 1-2).
Plaintiff’s response to defendants’ motion to dismiss relies on § 1983 for
jurisdiction. (Docket 36 at p. 2). Following the court’s order to identify an
applicable waiver of sovereign immunity, plaintiff cites § 1983, 18 U.S.C. § 242
and reasserts his allegations against defendants. (Docket 43 at pp. 2-5).
Viewing plaintiff’s pro se filings in a less stringent light, he still has not
identified a waiver of sovereign immunity.
“Section 1331 sets forth the general federal question jurisdiction of
federal district courts, but is not a general waiver of sovereign immunity
allowing suits against the government.” Wright v. Langdeau, 158 F. Supp. 3d
825, 832 (D.S.D. 2016) (quoting Rosebud Sioux Tribe v. U.S. Bureau of Indian
Affairs, 714 F. Supp. 1546, 1552 (D.S.D. 1989) (internal quotation marks
omitted).
Section 1983 does not waive the government’s sovereign immunity
defense. See Affiliated Professional Home Health Care Agency v. Shalala, 164
F.3d 282, 286 (5th Cir. 1999); Morpurgo v. Board of Higher Ed. In City of New
York, 423 F. Supp. 704, 714 (S.D.N.Y. 1976) (“[T]he United States itself
[cannot] be sued under [section 1983] . . . because [the statute does] not waive
sovereign immunity.”); Johnson v. U.S. Social Sec. Admin., No. C 03-5876,
3The
complaint cites 42 U.S.C. § 1343. (Docket 1 at p. 2). The court
assumes plaintiff means either 28 U.S.C. § 1343 or 42 U.S.C. § 1983. The
court’s analysis of this issue does not change for section 1343 or 1983.
6
2005 WL 418543, at *3 (N.D. Cal. Feb. 17, 2005) (dismissing plaintiff’s section
1983 claim for failing to identify waiver of sovereign immunity).
As to 28 U.S.C. § 1343, courts “which have considered the issue have
concluded that [the statute] does not constitute a waiver of the sovereign
immunity of the United States.” Andrews v. Martinez, Case No. C-3-01-285,
2002 WL 31368850, at *3 (S.D. Ohio Aug. 21, 2002) (citing Salazar v. Heckler,
787 F.2d 527, 528 (10th Cir. 1986); Beale v. Blount, 461 F.2d 1133, 1138 (5th
Cir. 1972); Brian v. Gugin, 853 F. Supp. 358, 363 (D. Idaho 1994), affirmed, 46
F.3d 1138 (9th Cir. 1995) (table); Royer v. I.N.S., 730 F. Supp. 588, 590
(S.D.N.Y. 1990)).
The final statute plaintiff cites, 18 U.S.C. § 242, is not a waiver of
sovereign immunity. See Fetter v. United States, No. 91-35706, 1992 WL
203890, at *2 (9th Cir. Aug. 20, 1992) (“[S]ection 242, the criminal version of
section 1983, is also a remedial statute and not a waiver of sovereign
immunity.”); Malik v. U.S. Department of Justice, Civil Action No. 12-30046,
2012 WL 4469131, at * 2 (D. Mass. July 19, 2012) (dismissing a § 242 claim
that failed to identify sovereign immunity waiver); United States v. Goodman,
Civil Action No. 11-cv-00274, 2012 WL 502807, at *4 (D. Colo. Jan. 4, 2012)
(“18 U.S.C. §§ 242 and 1581 are sections of the criminal code that provide no
private civil cause of action and do not demonstrate any intent by Congress to
waive the United States’ sovereign immunity.”).
“The burden of establishing that a cause of action lies within the limited
jurisdiction of the federal courts is on the party asserting jurisdiction . . . .”
7
Arkansas Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551
F.3d 812, 816 (8th Cir. 2009). Plaintiff does not meet this burden. The court
grants defendants’ motion to dismiss for lack of subject matter jurisdiction.
V.
Plaintiff’s motion to amend the complaint
Rule 15 of the Federal Rules of Civil Procedure governs plaintiff’s ability
to amend his complaint. Fed. R. Civ. P. 15. When the motion to amend comes
more than 21 days after serving the complaint, plaintiff needs either the
written consent of opposing parties or the court’s leave in order to amend. Fed.
R. Civ. P. 15(a)(2). Courts “freely give leave when justice so requires.” Id.
Because plaintiff lacks the written consent of defendants, the court must
decide whether to give him leave to amend the complaint or deny the motion as
futile.
“Amendment is futile if the proposed amended complaint does not
establish a court’s subject matter jurisdiction over the action.” American Ins.
Co. v. St. Jude Medical, Inc., 597 F. Supp. 2d 973, 979 (D. Minn. 2009) (citing
Longie v. Spirit Lake Tribe, 400 F.3d 586, 588 n.3 (8th Cir. 2005)). Plaintiff’s
original complaint, response to defendants’ motion to dismiss for lack of
subject matter jurisdiction, and his recent argument responding to the August
1, 2016, order fail to establish subject matter jurisdiction. Plaintiff proposes
amending his complaint to add the United States as a defendant. (Docket 46).
Including the United States as a defendant does not change the court’s
determination that it lacks subject matter jurisdiction based on defendants’
sovereign immunity defense. Allowing the proposed amended complaint would
8
be futile. See United States ex rel. Lee v. Fairview Health Sys., 413 F.3d 748,
749 (8th Cir. 2005) (“[P]laintiffs do not have an absolute or automatic right to
amend. . . . Futility is a valid basis for denying leave to amend.”). The motion
to amend the complaint is denied.
VI.
Defendants’ motion for summary judgment
The August 1, 2016, order converted part of defendants’ 12(b)(6) motion
to dismiss into a motion for summary judgment.4 (Docket 42 at 8-9).
Defendants’ summary judgment motion consists of three issues: whether the
Task Force is an entity capable of being sued; whether Deputy Harmon was a
state actor under color of state law; and whether Deputy Harmon is entitled to
qualified immunity.5 Id. at pp. 9-10.
Under Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate where the moving party “shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The court must view the facts, and inferences from those
facts, in the light most favorable to the nonmoving party. See Matsushita Elec.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)); Helton v. Southland Racing Corp.,
4Although
granting defendants’ motion to dismiss for lack of subject
matter jurisdiction is dispositive, the court rules on the parties’ motions for
summary judgment in the alternative.
5Even
though plaintiff moved for summary judgment, the court need not
analyze that motion because it lacks a substantive argument and fails to
comply with Fed. R. Civ. P. 56(c) and South Dakota District Court Local Rule
56.1(A), which requires plaintiff to include a statement of undisputed material
facts citing to the record.
9
600 F.3d 954, 957 (8th Cir. 2010) (per curiam). Summary judgment will not lie
if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994).
A.
Whether the Task Force is an entity capable of being sued
The court’s discussion of this issue above controls. The court finds the
Task Force is not an entity capable of being sued.
B.
Whether Deputy Harmon was a state actor under color of state
law
The United States Marshals Service employs Joseph Harmon as a Deputy
United States Marshal, and he serves as a member of defendant Task Force.
(Docket 25 at p. 1). As a federal employee, Deputy Harmon is not a state actor
acting under color of state law. See Jones v. United States, 16 F.3d 979, 981
(8th Cir. 1994) (citing Haley v. Walker, 751 F.2d 284, 285 (8th Cir. 1984)); see
also Olivares, 2014 WL 6453833, at *3 (“Federal officials do not act under state
law.”). Lacking any evidence from Mr. Walker disputing Deputy Harmon’s
federal employee status, the court finds for Deputy Harmon on this issue.
Although Mr. Walker’s central allegation rests on § 1983, the facts in his
complaint appear closer to a Bivens6 claim. A Bivens claim is a constitutional
claim brought against federal officials acting under color of federal law rather
than state officials acting under color of state law. See Bivens, 403 U.S. 388.
A Bivens action “may not be asserted against the United States, its agencies, or
against federal employees in their official capacity.” Chavez-Garcia v. Kopf, No.
6Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
10
4:06cv3114, 2006 WL 1401686, at *1 (D. Neb. May 18, 2006) (emphasis in
original). That is, unless the United States waives sovereign immunity. See
Dockery v. Miller County, Civil No. 4:10-cv-4070, 2011 WL 4975185, at *4
(W.D. Ark. Sept. 12, 2011). Although Mr. Walker mentions constitutional
rights in the complaint and his pro se filings deserve a liberal construction, he
has not advanced a Bivens claim. See Jones, 16 F.3d at 981 (affirming
dismissal of a § 1983 claim without prejudice when there was potential for a
Bivens action).
C.
Whether Deputy Harmon is entitled to qualified immunity
Analyzing whether qualified immunity protects Deputy Harmon would be
necessary only if Mr. Walker made a Bivens claim. The court need not resolve
this issue because Mr. Walker did not plead a Bivens claim.
ORDER
Based on the above analysis, it is
ORDERED that defendant Task Force’s motion to set aside the entry of
default (Docket 23) is granted.
IT IS FURTHER ORDERED that plaintiff’s motion for default judgment as
to the Task Force (Docket 21) is denied.
IT IS FURTHER ORDERED that defendants’ motion to dismiss for
insufficient service of process (Dockets 29 & 30 at pp. 10, 13) is denied as
moot.
IT IS FURTHER ORDERED that defendants’ motion to dismiss for lack of
subject matter jurisdiction (Dockets 29 & 30 at pp. 8-10) is granted.
11
IT IS FURTHER ORDERED that plaintiff’s motion to amend the
complaint (Docket 46) is denied.
IT IS FURTHER ORDERED that plaintiffs’ motion for summary judgment
(Docket 35) is denied.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed without prejudice.
Dated September 26, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
12
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