Opinion
2:21-cv-01304-DCN-MGB
01-18-2023
Jonathan Green and JGCRE, Inc., Plaintiffs, v. Dorchester County; Ray Nash, Former Dorchester County Sheriff; Luther Carl Knight, Current Dorchester County Sheriff; Mark Keel, South Carolina Law Enforcement Division, Defendants.
ORDER AND REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNTIED STATES MAGISTRATE JUDGE
Plaintiffs, originally proceeding pro se, filed this civil action pursuant to 42 U.S.C. § 1983 and the South Carolina Freedom of Information Act on May 3, 2021. (Dkt. No. 1.) Plaintiffs alleged that Defendants violated Plaintiff Jonathan Green's constitutional rights by placing him on the South Carolina sex offender registry as a juvenile, and by refusing to remove him from that registry. (See generally Dkt. Nos. 1, 8, 8-2.) Plaintiffs further alleged that Defendants violated the South Carolina Freedom of Information Act by denying requests for information from Plaintiff Jonathan Green and his father, Nathaniel Green. (See generally Dkt. Nos. 1, 8, 8-2.)
Currently before the Court are Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 87), Defendants' Motion to Dismiss (Dkt. No. 90), and Plaintiffs' Motion to Amend (Dkt. No. 93). Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. For the reasons set forth below, the undersigned RECOMMENDS that Defendants' Motion to Dismiss (Dkt. No. 90) be GRANTED IN PART AND DENIED IN PART, and ORDERS that Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 87) and Motion to Amend (Dkt. No. 93) be DENIED.
PROCEDURAL HISTORY
As noted, Plaintiffs initially filed this litigation while proceeding pro se. (Dkt. No. 1.) After receiving a Proper Form Order from the Court, Plaintiffs filed an Amended Complaint. (Dkt. No. 8.) On October 7, 2021, Defendants filed a Motion to Dismiss for Plaintiffs' Failure to State a Claim. (Dkt. No. 19.) Plaintiffs responded to Defendants' motion on November 5, 2021. (Dkt. No. 34.) On December 17, 2021, the undersigned recommended that Defendants' motion be granted in part and denied in part. (Dkt. No. 44.) More specifically, the undersigned recommended that Defendants' motion be denied as to Plaintiffs' § 1983 claim for injunctive relief against Defendant Keel and certain of Plaintiffs' South Carolina Freedom of Information Act claims against employees of the South Carolina Law Enforcement Division (“SLED”). (Id. at 13-14.) The undersigned recommended that Defendants' motion be granted as to all remaining claims. (Id. at 14.)
On January 14, 2022, Plaintiffs retained counsel. (Dkt. No. 51.) In light of Plaintiffs' new representation, Plaintiffs were given an extended period to file objections to the undersigned's Report and Recommendation. (Dkt. No. 59.) On August 5, 2022, the Court adopted the Report and Recommendation in part, finding that the case should proceed solely as a § 1983 claim against Defendant Keel, in his official capacity. (Dkt. No. 70.)
On October 4, 2022, Plaintiffs filed a Motion to Amend their Amended Complaint, to which Defendants consented. (Dkt. Nos. 80, 81.) The undersigned granted Plaintiffs' motion on October 12, 2022, and Plaintiffs filed a Second Amended Complaint on October 17, 2022. (Dkt. No. 82.) The Second Amended Complaint brings causes of action pursuant to § 1983, including: (1) violation of Plaintiffs' substantive due process rights under the Fourteenth Amendment; (2) violation of Plaintiffs' procedural due process rights under the Fourteenth Amendment; (3) violation of Plaintiffs' right to equal protection under the Fourteenth Amendment; (4) violation of the Fifth Amendment Takings Clause; (5) violation of Plaintiffs' Fourteenth Amendment right to be free from unreasonable searches and seizures; (6) violation of Plaintiffs' Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment; (7) violation of Plaintiffs' Fifth and Fourteenth Amendment rights to be free from double jeopardy; and (8) violation of Plaintiffs' Fourteenth Amendment right to privacy. (Id.)
On November 11, 2022, Plaintiffs filed a Motion for Preliminary Injunction asking the Court to “order Defendant Keel to remove Plaintiff Jonathan Green from the South Carolina Sex Offender Registry [] pending disposition of this action” and requesting “destruction of Defendants' fingerprint and photographic records of Plaintiff [Jonathan Green].” (Dkt. No. 87 at 1.) On November 28, 2022, Defendants filed their response to Plaintiffs' motion, (Dkt. No. 89), along with a Motion to Dismiss Plaintiffs' Second Amended Complaint (Dkt. No. 90). On December 5, 2022, Plaintiffs filed a reply to Defendants' response to their Motion for Preliminary Injunction. (Dkt. No. 91.)
Plaintiffs responded to Defendants' Motion to Dismiss on December 12, 2022. (Dkt. No. 92.) On that same day, Plaintiffs filed a Third Motion to Amend the Complaint. (Dkt. No. 93.) On December 19, 2022, Defendants filed a reply to Plaintiffs' response to their Motion to Dismiss, (Dkt. No. 94), and a response in opposition to Plaintiffs' Third Motion to Amend (Dkt. No. 95). Plaintiffs replied to Defendants' response to the Motion to Amend on December 28, 2022. (Dkt. No. 96.) Accordingly, the motions before the Court have been fully briefed and are ripe for disposition.
FACTUAL SUMMARY
The Second Amended Complaint alleges that Plaintiff Jonathan Green (“Green”) was “adjudicated delinquent for three offenses in Fairfax County Juvenile Court in Fairfax[,] Virginia” in 1998. (Dkt. No. 84 at 3.) Green was fifteen years old at the time. (Id.) Plaintiffs state that Green's sentence “involved counseling and thirty days in the local detention center” but he “was explicitly not required to register as a sex offender.” (Id.) (emphasis in original). Plaintiffs explain that “Green's case was adjudicated under seal as is typical for matters adjudicated in county juvenile courts in Virginia.” (Id.)
The undersigned notes that Plaintiffs do not provide details regarding the Virginia delinquency adjudications, except that the proposed Third Amended Complaint states “[t]he [Virginia] Court considered the fact that Green's offense did not involve sexual intercourse ....” (Dkt. No. 93-1 at 3.) It is undisputed that Plaintiff Green was placed on the Registry as a result of his Virginia delinquency adjudications.
According to Plaintiffs, Green's family moved from Virginia to Dorchester County, South Carolina approximately two years after his adjudication. (Id.) When he arrived in South Carolina, “Green was informed that he was required to register as a sex offender and failure to do so would subject him to a criminal charge and possible imprisonment.” (Id.) Accordingly, he registered on the South Carolina Sex Offender Registry (the “Registry”). (Id.) Plaintiffs claim that Green's information was then published on the national sex offender registry website, as well. (Id.) Further, Plaintiffs claim that Green was fingerprinted by law enforcement and that his fingerprints were added to a national crime database as a result. (Id.)
Plaintiffs allege that Green's father “presented Defendant Ray Nash [] with an affidavit from a Virginia government official” in 2007 which “indicat[ed] that Mr. Green was not required to register as a sex offender in Virginia.” (Id. at 4.) Plaintiffs claim that Defendant Nash responded that taking Green off the Registry would be too “politically risky.” (Id.) Plaintiffs claim that Green later moved out of South Carolina but remains on the Registry “to this day.” (Id.)
Plaintiffs allege that Green's father, who was employed as a deputy sheriff in Dorchester County, asked Defendant Knight, the Dorchester County Sheriff at that time, to remove Green from the Registry. (Id.) According to Plaintiffs, “Green's name was removed from the public website without notice and without warning in 2015.” (Id.) After his father was informed that he had been removed from the Registry, Green “ran an FBI fingerprinted background check, national background check, and background checks in Virginia, Oklahoma, and South Carolina.” (Id.) Plaintiffs claim that these background checks “showed no arrest data and showed no sex offender registry information.” (Id.) Nonetheless, Plaintiffs claim that Green learned in 2019 that he was still on a “different registry” which had “the effect of him being on the national sex offender database” even though his name was not on the South Carolina website. (Id. at 5.)
Plaintiffs claim that Green suffered the following harm “[a]s a result of being on the sex offender registry for over twenty years,”
a. Shame and debilitation, including having neighbors print and distribute flyers in Green's neighborhood;
b. Loss of reputation;
c. Restrictions on where Green can live, work, and conduct business;
d. Inability to “responsibly father children” because he would be prevented from being around his child and/or his child's friends;
e. Inability to travel internationally because he “is either denied the ability to do so or is harassed and detained whenever he goes through a travel checkpoint;”
f. Inability to find employment because he is “virtually unemployable due to his sex offender status;”
g. Inability to move to another state without having to register as a sex offender;
h. An indication on his official U.S. Government identification that he is a sex offender;
i. Shame and mental distress “caused by having to have his fingerprints taken” because “[f]ingerprinting was explicitly not required of Green when he was adjudicated delinquent in Virginia” and because “Green's fingerprints are now in a national database which can trigger alerts each time he travels or is required to do background checks for real estate licenses or jobs;”
j. Lost earnings of his company, JCGRE, Inc.(Id. at 5-6.) Plaintiffs further claim that Plaintiff JCGRE, Inc. suffered harm in the form of delayed real estate licenses, resulting in lost revenue; inability to conduct business internationally, resulting in lost revenue; and loss of potential clients who have declined to do business with the company because Green is a registered sex offender. (Id. at 6.)
Based on the foregoing, Plaintiffs filed the instant civil action. (Dkt. Nos. 1, 8, 8-4, 84.) Plaintiffs seek actual, consequential, and punitive damages, attorneys' fees, and injunctive relief in the form of:
requiring Defendants to (a) remove Green from the registry, (b) notify the United States Department of Justice of said removal, (c) destroy all information, electronic or otherwise, that relates to Green in the possession of Defendants including his mug shot and fingerprints, (d) provide proof of all of the above to Plaintiffs, and (e) submit a letter of apology to Plaintiffs.(Dkt. No. 84 at 13-14.)
LEGAL STANDARD
I. Motion to Dismiss
Defendants seek dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 90-1.) A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted “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 citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Pres. Ass'n v. Cnty Comm'rs of Carroll Cnty, Md, 523 F.3d 453, 459 (4th Cir. 2008).
The Fourth Circuit has yet to decide “whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).” Andrews v. Daw, 201 F.3d 521, 525 n.2 (4th Cir. 2000). Several courts in this circuit, however, have noted a “trend” of viewing Eleventh Amendment immunity through the lens of Rule 12(b)(1). E.g., Clowdis v. Silverman, No. 3:15-cv-128, 2019 WL 1415454, at *12 (E.D. Va. Mar. 28, 2019); Darling v. Falls, 236 F.Supp.3d 914, 925 n.11 (M.D. N.C. 2017); cf. Roach v. W.Va. Reg'l Jail & Corr. Facility Auth., 74 F.3d 46, 48 (4th Cir. 1996) (“Although not a true limit on the subject-matter jurisdiction of the federal courts, the Eleventh Amendment is ‘a block on the exercise of that jurisdiction.'” (quoting Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995))). This distinction, however, “makes little practical difference” as in either case the court must assume the truth of the facts alleged in the complaint and view them in the light most favorable to the plaintiff. Zemedagegehu v. Arthur, No. 1:15-cv-57, 2015 WL 1930539, at *3 (E.D. Va. Apr. 28, 2015); accord Fleming v. Va. State Univ., No. 3:15-cv-268, 2016 WL 927186, at *1 n.4 (E.D. Va. Mar. 4, 2016).
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
“Under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider exhibits, without converting the motion to dismiss to one for summary judgment.” Brennan v. Deluxe Corp., 361 F.Supp.3d 494, 501 (D. Md. 2019) (citing Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015)). “In particular, a court may consider documents that are ‘explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits '” Id. (quoting Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)). Here, Plaintiffs' Second Amended Complaint includes two exhibits. (Dkt. Nos. 84-1, 84-2.) The undersigned has considered those exhibits when rendering the orders and recommendations contained herein.
II. Motion for Preliminary Injunction
A preliminary injunction “protect[s] the status quo . . . to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003) (abrogated on other grounds by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)). A preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
To obtain a preliminary injunction, the moving party must show the following:
(1) He is likely to succeed on the merits;
(2) He is likely to suffer irreparable harm in the absence of preliminary relief;
(3) The balance of equities tips in his favor; and
(4) An injunction is in the public interest.Id. at 20; see also Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (stating the moving party must “clearly establish[ ]” entitlement to the injunction he wants). All four requirements must be satisfied in order for relief to be granted. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
III. Motion to Amend
Rule 15(a) provides that leave to amend should be “freely give[n] . . . when justice so requires.” Fed.R.Civ.P. 15(a). “This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957); Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999)). The Fourth Circuit has interpreted “Rule 15(a) to provide that ‘leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.'” Laber, 438 F.3d at 426-27 (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).
An amendment is futile when it is “clearly insufficient or frivolous on its face.” See Johnson, 785 F.2d at 510 (referencing Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980), cert. dismissed, 448 U.S. 911 (1980)); see also City of Charleston, SC v. Hotels.com, LP, 487 F.Supp.2d 676, 679 (D.S.C. 2007) (same). To make this determination, the Court analyzes an amended complaint under Rule 12(b)(6). Hall v. Greystar Mgmt. Servs., L.P., 637 Fed.Appx. 93, 97 (4th Cir. 2016) (“An amendment is futile if the amended claim would fail to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).”).
DISCUSSION
I. Motion to Dismiss
In response to Plaintiffs' Motion to Amend, Defendants assert that Plaintiffs' motion should be denied because the Court has not yet ruled on Defendants' Motion to Dismiss and “the Court could dismiss the entire case based solely on the statute of limitations or solely on qualified immunity.” (Dkt. No. 95 at 2.) The undersigned agrees that Defendants' Motion to Dismiss impacts the other pending motions and therefore considers Defendants' Motion to Dismiss first.
At the outset, the undersigned notes that motions to dismiss pursuant to Rule 12(b)(6) generally cannot reach the merits of an affirmative defense. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, this case presents the “relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint.” Id. Because the facts necessary to evaluate Defendants' statute of limitations and qualified immunity defenses “clearly appear[ ] on the face of the complaint,” the undersigned has considered the merits of these defenses when making the recommendations contained herein. See Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).
A. Statute of Limitations
Defendants argue that this lawsuit should be dismissed because Plaintiffs' claims were filed outside of the applicable statute of limitations for § 1983 claims. (Dkt. No. 90-1 at 5.) Defendants note that “Plaintiffs allege . . . Green should not have been required to register as a sex offender when he moved to South Carolina around the year 2000.” (Id.) Defendants explain that “the first and only mention of Sheriff Nash is in the year 2007.” (Id.) Defendants further note that Plaintiffs' “allegations against Sheriff Knight occurred in 2015 when Mr. Green's father asked Sheriff Knight to remove Green from the registry . . .,” but that “Plaintiffs make no allegation of any further involvement by Knight after 2015.” (Id. at 6.) Finally, Defendants note that “there are no allegations of involvement by Chief Keel or Dorchester County, and any claims against them, regardless of when they were filed, should be dismissed.” (Id.)
In response, Plaintiffs argue that “it was only in 2019 that [Green] realized he was still on the registry.” (Dkt. No. 92 at 2.) Plaintiffs further claim that they are “subject to continued, ongoing violations of their constitutional rights” and that the continuing violation doctrine therefore applies. (Id. at 2-3.) In their reply, Defendants retort that the allegations in the Second Amended Complaint make clear that Plaintiff knew about the alleged violation of his constitutional rights long before 2019. (Dkt. No. 94 at 1.) Defendants assert that this is confirmed by Plaintiffs' claim that his constitutional rights are being continually violated because of his placement on the sex offender registry, which happened in 2000, not 2019. (Id. at 1-2.)
When considering the proper statute of limitations for a § 1983 claim, the United States Supreme Court has found that the federal court should adopt the state law statute of limitations for personal injury. See Wilson v. Garcia, 471 U.S. 261, 276 (1985). Under South Carolina law, the statute of limitations for a personal injury claim is three years. See S.C. Code Ann. § 15-3-530(5). Accordingly, “[t]he statute of limitations for section 1983 causes of action arising in South Carolina is three years.” Hamilton v. Middleton, No. C.A. 4:02-1952-23, 2003 WL 23851098, at *4 (D.S.C. June 20, 2003); see also Simmons v. South Carolina State Ports Auth., 694 F.2d 63, 64 (4th Cir. 1982) (under previous statute); Hoffman v. Tuten, 446 F.Supp.2d 455, 459-60 (D.S.C. 2006).
Section 15-3-530(5) mandates that all actions initiated under the statute “must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action.” S.C. Code Ann. § 15-3-530(5) (emphasis added). The South Carolina Supreme Court has explained that reasonable diligence “means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.” Little v. Brown & Williamson Tobacco Corp., 243 F.Supp.2d 480, 486 (D.S.C. 2001) (quoting Wiggins v. Edwards, 314 S.C. 126, 128 (1994)) (emphasis added). As such, courts typically focus on the date of injury to determine when a plaintiff could or should have known he had a cause of action to start the statute of limitations clock. See Sutherland v. R.J. Reynolds Tobacco Co., Inc., No. 6:21-cv-00671-TMC, 2022 WL 391578, at *6 (D.S.C. Feb. 9, 2022) (referencing Little, 243 F.Supp.2d at 486; Dillon Cty. Sch. Dist. No. Two v. Lewis Sheet Metal Works, Inc., 286 S.C. 207, 215 (Ct. App. 1985), overruled on other grounds by Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors Div. of Unidynamics Corp., 319 S.C. 556 (1995)).
As noted, Plaintiffs argue that their claims are not time-barred because “it was only in 2019 [Green] realized he was still on the registry.” (Dkt. No. 92 at 2.) However, most of the claims in Plaintiffs' Second Amended Complaint allege constitutional violations based on Green's initial placement on the Registry in 2000. (See Dkt. No. 84 at 7-13, stating, inter alia, “[b]y placing Green on the registry, Defendants deprived Green of liberty without due process of law,” “Green . . . whose adjudication was made under seal, was treated the same as those who were convicted of serious sex crimes as adults in South Carolina by means of lifetime registration and publication of his information online,” and “Green . . . was given a lifelong penalty of being placed on the registry for an offense which was already adjudicated under seal in another state.”)
The undersigned notes that the Second Amended Complaint broadly alleges that Plaintiff Green's placement on the Registry was wrongful and does not specify which claims are brought against which Defendants. (See generally Dkt. No. 84.)
In other words, most of the constitutional violations that Plaintiffs allege (e.g., denial of substantive and procedural due process, equal protection, etc.) occurred when Green was first required to register as a sex offender upon moving to South Carolina, not when “Green learned that while his name had been removed from the public registry website, he was still on a ‘different registry' which . . . has the effect of him being on the national sex offender database.” (Id. at 5.) Thus, Green would have been on notice of the purported constitutional violations and his potential claims against Defendants when he was required to register as a sex offender in 2000. See Little, 243 F.Supp.2d at 486 (quoting Wiggins, 314 S.C. at 128).
As Defendants note, Plaintiffs' Second Amended Complaint supports this conclusion. Indeed, Plaintiffs allege that Green's father attempted to have Green removed from the Registry in 2007 and again in 2015. (Dkt. No. 84 at 3-4.) The Second Amended Complaint explains that “[i]n 2007, Green's father . . . presented Defendant Ray Nash [] with an affidavit from a Virginia government official indicating that Mr. Green was not required to register as a sex offender in Virginia,” lending further support to the conclusion that Plaintiffs knew of the constitutional violations at issue here before 2019. (Id. at 4.)
Nonetheless, Plaintiffs' Second Amended Complaint appears to challenge the constitutionality of South Carolina law itself, not just the constitutionality of his initial placement on the Registry. (See Dkt. No. 84 at 10, stating “Even assuming that Green's placement was in accordance with South Carolina Law, this treatment violates the Equal Protection Clause of the United States Constitution ....”) As recognized by the Fourth Circuit, “[t]he continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations.” Va. Hosp. Ass'n v. Baliles, 868 F.2d 653, 663 (4th Cir. 1989) (alteration in original) (citation omitted). Thus, to the extent Plaintiffs request relief for the continued enforcement of allegedly unconstitutional South Carolina law, the undersigned declines to conclude that such claims are time-barred. See Nat'l Ass'n for Rational Sexual Offense L. v. Stein, No. 1:17-cv-53, 2019 WL 3429120, at *9 (M.D. N.C. July 30, 2019) (“Therefore, because Plaintiffs in this action are seeking prospective relief for the continued enforcement of allegedly unconstitutional amendments to the registry law, the statute of limitations does not bar Plaintiffs' claims.”). However, Plaintiffs' claims arising from his initial placement on the Registry are barred by the statute of limitations and should therefore be dismissed.
B. Defendant Dorchester County
Defendants next assert that Defendant Dorchester County (“the County”) is not a proper party to this litigation. (Dkt. No. 90-1 at 6.) More specifically, Defendants argue that the County should be dismissed from this case because it “has no authority over the elected Sheriff of Dorchester County or his office” and because “under South Carolina law, the sheriff and sheriff's deputies are State, not county, employees.” (Id. at 7.) Defendants also claim that the Second Amended Complaint is devoid of allegations of involvement by the County. (Id. at 4.)
Plaintiffs counter that the County should remain as a party to the case because “the fact that a county administrator might not have direct control over the Sheriff doesn't preclude any liability for a county itself.” (Dkt. No. 92 at 3.) Further, Plaintiffs note that “[i]mportant to this case is the custom of Dorchester County Sheriff's Office in having laym[e]n (i.e. not lawyers or judges) interpret and compare statutes between different states” and that “Dorchester County at a minimum declined to allocate funds for this type of position and bears partial responsibility for the due process violations that [Plaintiffs] have been subjected to.” (Id.)
The undersigned need not consider whether the County has requisite authority over the office of the sheriff because the Second Amended Complaint does not sufficiently state a claim against the County. (See generally Dkt. No. 84.) Indeed, the Second Amended Complaint alleges only the following with respect to this Defendant:
41. Green submits that placing individuals on the sex offender registry without regard to the relevant statutory or constitutional considerations was part of a policy
or custom initiated by Dorchester County and thus Dorchester County should be considered a “person” under 42 U.S.C. § 1983. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).(Id. at 8.) Thus, Plaintiffs bring just one claim against the County: a Monell claim. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).
In Monell, the Supreme Court concluded that “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Pursuant to Monell, a municipality or other local government entity may be liable under § 1983 for the violation of a plaintiff's constitutional rights, but only where the constitutionally offensive actions of employees are taken in furtherance of some municipal policy or custom. See Monell, 436 U.S. at 694; see also Knight v. Vernon, 214 F.3d 544, 552 (4th Cir. 2000). A plaintiff may demonstrate the existence of an official policy in three ways: (1) an express policy; (2) certain affirmative decisions of policymaking officials; and (3) a widespread practice that is so engrained it constitutes a custom ....” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999). A policy or custom that gives rise to § 1983 liability will not “be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees.” Milligan v. City of Newport News, 743 F.2d 227, 230 (4th Cir. 1984); see Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 403 (4th Cir. 2014) (“Sporadic or isolated violations of rights will not give rise to Monell liability ....”). Rather, only “‘widespread or flagrant'” misconduct suffices. Owens, 767 F.3d at 403 (quoting Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987)).
The conclusory allegations in the Second Amended Complaint are insufficient to support a Monell claim against the County. (See generally Dkt. No. 84.) As noted, Plaintiffs allege only that “placing individuals on the sex offender registry without regard to the relevant statutory or constitutional considerations was part of a policy or custom initiated by Dorchester County.” (Id. at 8.) Nowhere else in the Second Amended Complaint do Plaintiffs mention the County's alleged policy or custom, nor do Plaintiffs provide further details regarding the County's alleged involvement in creating and implementing it. (See generally id.) Plaintiffs do not reference any written policy, nor do they provide other instances of the conduct about which Plaintiffs complain that could support an inference that this conduct was a common practice or custom. (See generally id.) Ultimately, Plaintiffs provide only “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 555 (quoting Papasan, 478 U.S. at 286). Thus, even considering the allegations in Plaintiffs' favor, such allegations are insufficient to sustain a Monell claim against the County. See, e.g., Flaherty-Ortega v. Horry Cnty., S.C., No. 1:21-cv-2866-RMG-SVH, 2021 WL 9541561, at *5 (D.S.C. Nov. 19, 2021), adopted, 2022 WL 3974190 (D.S.C. Sept. 1, 2022) (finding plaintiff's allegations of only two incidents could not support a widespread practice sufficient for Monell liability to attach); Booker v. City of Lynchburg, No. 6:20-cv-00011, 2020 WL 4209057, at *8 (W.D. Va. July 22, 2020) (finding plaintiff failed to allege a Monell claim where he did “not reference any specific policy statement or decision of any policymaker in his complaint . . . in more than conclusory terms”). The undersigned therefore recommends that Defendant Dorchester County be dismissed as a party to this litigation.
Importantly, Plaintiffs' proposed Third Amended Complaint does not remedy the deficiencies of Plaintiffs' Second Amended Complaint with respect to Plaintiffs' Monell claim against the County. (See generally Dkt. No. 93-1.)
C. Eleventh Amendment
Defendants further assert that Defendants Nash, Knight, and Keel are entitled to Eleventh Amendment immunity. (Dkt. No. 90-1 at 11.) The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Further, Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity,” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself,” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Accordingly, “[s]tate officials may only be sued in their individual capacities.” Rhoden v. S.C. Dep't of Corr., No. 4:17-cv-2537-HMH-TER, 2017 WL 9288217, at *3 (D.S.C. Oct. 4, 2017) (finding claims against prison warden in his official capacity should be dismissed because warden is entitled to Eleventh Amendment immunity), adopted, 2017 WL 5494126 (D.S.C. Nov. 16, 2017), amended, 2017 WL 6032341 (D.S.C. Dec. 6, 2017); Edwards v. Patell, No. 4:06-cv-0748-HFF-TER, 2007 WL 2428548, at *8 (D.S.C. Aug. 21, 2007) (dismissing claims brought against defendant “employee of SCDC” in his official capacity).
Here, Defendants explain that Defendant Keel is the director of SLED, which is a state agency whose employees are considered agents of the state when sued in their official capacities. (Dkt. No. 90-1 at 11.) Defendants similarly claim that Defendants Nash and Knight are entitled to Eleventh Amendment immunity because Defendant Nash is the past sheriff of Dorchester County and Defendant Knight is the present sheriff. (Id. at 12.) Defendants state that “[c]ourts within the Fourth Circuit have repeatedly held that a Sheriff's Office, the Sheriff, and his deputies are state agents and immune from suit” in their official capacities. (Id.)
In response, Plaintiffs state that they “don't contest this as to Keel, but submit that Nash and Knight in their official capacities should not be considered ‘arms of the state.'” (Dkt. No. 92 at 6.) Plaintiffs state that “[w]hile Defendants are correct that prior precedent in this circuit has held South Carolina sheriffs['] offices to be ‘arms of the state,' that conclusion has always been based on a lack of information ” (Id.) Plaintiffs contend that under Ram Ditta By & Through Ram Ditta v. Maryland Nat. Cap. Park & Plan. Comm'n, 822 F.2d 456 (4th Cir. 1987), Defendants Nash and Knight cannot be considered “arms of the state” because the state treasury is not responsible for paying any judgment that might be awarded against Defendants Nash and Knight in this case. (Id.) In support of this contention, Plaintiffs reference the exhibits attached to their Second Amended Complaint which contain email correspondence between Plaintiffs' counsel and the State Fiscal Accountability Authority's Assistant General Counsel, and Plaintiffs' counsel and the Deputy State Treasurer & General Counsel for the South Carolina Treasurer's Office. (Dkt. Nos. 84-1, 84-2.) The first email correspondence states that “[t]here is no insurance contract directly between the Insurance Reserve Fund and the Dorchester County Sheriff's Office . . . [t]he Insurance Reserve Fund insure[s] Dorchester County, including its employees.” (Dkt. No. 84-1 at 1.) The second email correspondence states “we [] have no way to determine on whose behalf a payment is made [by the Insurance Reserve Fund]” and “[t]he State Treasury is not responsible for the payments of any judgment levied against the Dorchester County Sheriff's Office, or any county office for that matter. Questions regarding whether a judgment is covered by the Insurance Reserve Fund should be directed to the Insurance Reserve Fund.” (Dkt. No. 84-2 at 1.)
Nonetheless, the undersigned agrees with Defendants on this point. As Defendants note, Courts have consistently held that “sheriff's departments in South Carolina are state agencies.” Bey v. S.C. Berkeley 9th Jud. Ct., No. 2:17-cv-3248-RMG-MGB, 2018 WL 1135382, at *6 (D.S.C. Feb. 7, 2018) (citing S.C. Code Ann. § 23-13-550 (2008); 1975 S.C. Att'y. General Opinion No. 47 (Jan. 22, 1975); S.C. Code Ann. § 23-13-10 (2012); Edwards v. Lexington Cty. Sheriff's Dept., 386 S.C. 285, n. 1 (S.C. 2010) (“under South Carolina law, the sheriff and sheriff's deputies are State . . . employees”); Cromer, 88 F.3d at 1332 (holding that sheriff was an “arm of the State”); Jones v. SCDC, Case No. 5:12-cv-3554-RBH-KDW, 2013 WL 3880175, *4 (D.S.C. July 26, 2013) (same, summarily dismissing)).
Further, the District Judge in this case has already considered and resolved Plaintiffs' arguments with respect to this issue. (Dkt. No. 70.) More specifically, the District Judge's August 5, 2022 Order explained:
Courts following Ram Ditta have consistently found that in South Carolina, sheriffs are agents of the state. For example, in Doe 202a v. Cannon, the court held that the sheriff of the Charleston County Sheriff's Office was immune from suit. 2018 WL 317818, at *4 (D.S.C. Jan. 8, 2018). In analyzing the Ram Ditta factors, the court in Cannon looked to the decisions of other courts that had analyzed the relationship between county sheriff's offices and the state and noted that those courts similarly found that sheriff's offices were arms of the state. See id. at *3-4 (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) and Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988)); see also Green v. S.C. Law Enf't Div., 2018 WL 1701982, at *3 (D.S.C. Mar. 5, 2018), report and recommendation adopted, 2018 WL 1697300 (D.S.C. Apr. 6, 2018) (“[T]he Fourth Circuit has considered the role of sheriffs in the state of South Carolina and has specifically determined that, in their official capacities, South Carolina's sheriffs are immune from federal lawsuits ....”). Although plaintiffs attempt to distinguish the Dorchester County Sheriff's Office from this long line of established precedent, their arguments fail to move the needle. Specifically, plaintiffs argue that in Cannon and its predecessors, the courts determined that the first Ram Ditta factor was inconclusive based on the record before them but that the same cannot be said here. But plaintiffs are only partially correct. In Cromer, the Fourth Circuit found that even though judgments against the Greenville County sheriff are paid by the South Carolina State Insurance Reserve Fund, it was unable to discern from the record whether the state treasury would be partially liable for a judgment in that case. 88 F.3d at 1332. As such, the court turned to the remaining factors and concluded that under those factors, the sheriff was clearly an arm of the state. Id. Plaintiffs agree that judgments against the Dorchester County Sheriff's Office are paid out of the South Carolina State Insurance Reserve Fund but contend that under the South Carolina Tort Claims Act, political subdivisions are required to pay their own insurance premiums. ECF No. 57-1 at 5-6 (citing S.C. Code Ann. § 15-78-160). However, nothing in that statute excludes the possibility that the state may simultaneously contribute to the Insurance Reserve Fund, and indeed, the court reads Cromer as making that same observation. See S.C. Code § 15-78-160 (“If an agency or political subdivision fails to pay any required premium within sixty days from the date the premium is invoiced, the State Budget and Control Board may cancel the policy for nonpayment of premium ....”). Additionally, while the court must accept as true all factual allegations contained in the complaint, the court finds that plaintiffs do not present any other factual allegations that Dorchester County pays its own
premiums to the exclusion of the state. Plaintiffs argue the contrary, claiming that they “indicate[] in their Objection . . . that [defendants] do[] not allege that the State treasury will be affected” and “show[] through example and statutory interpretation that there is little reason to believe that the treasury would be affected.” ECF No. 62 at 2. However, such statements are nothing more than conclusory allegations that the court need not credit. Finally, even if the court were to find that plaintiffs allege that the Dorchester County Sheriff's Office is self-funded, other courts have found that such allegations are still insufficient to distinguish Cromer. In English v. Clarke, the plaintiffs specifically maintained that the Richland County Sheriff was “self-funded with no excess insurance.” 2021 WL 4597184, at *4 (D.S.C. June 2, 2021), report and recommendation adopted, 2021 WL 4398371 (D.S.C. Sept. 27, 2021). The court concluded that even with that evidence, the circumstances mirrored those in Cromer because the record was inconclusive as to whether the state treasury would be impacted by a lawsuit. Id. The court reaches the same conclusion here. Accordingly, the court looks to the remaining Ram Ditta factors and finds that those factors swing definitively in favor of finding that sheriffs are agents of the state. Namely, “(1) the state constitution establishes the elective office of county sheriff and his term, (2) the General Assembly prescribes his duties and compensation, (3) the sheriff's arrest powers relate primarily to state offenses, (4) the county territorial jurisdiction is prescribed by the legislature's designation of county boundary lines, and (5) the Governor is empowered to remove the sheriff from office for misconduct and fill a vacancy until the next election.” Id. (citing Gulledge, 691 F.Supp. at 954-55).(Id. at 9-12) (emphasis added).
Plaintiffs email evidence does not rule out that the state treasury could be impacted by the instant litigation. (See Dkt. No. 70 at 11.) Thus, the undersigned recommends that Defendants Keel, Nash, and Knight are all “arms of the state” entitled to Eleventh Amendment immunity.
However, the Eleventh Amendment does not bar § 1983 claims for injunctive relief. The Supreme Court has found that a suit for injunctive relief against a state officer to prevent ongoing violations of federal law is not a suit against the state for purposes of the Eleventh Amendment. More specifically, in the landmark Supreme Court decision, Ex Parte Young, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. 209 U.S. 123, 155-56 (1908).
“The Ex Parte Young exception is directed at ‘officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings'” to enforce an unconstitutional act against affected parties. McBurney v. Cuccinelli, II, 616 F.3d 393, 399 (4th Cir. 2010) (citing Ex Parte Young, 209 U.S. at 155-56). “Thus, to correctly plead such a claim, the proper State official must be included as a defendant by name and identified in the body of the complaint with a specific unconstitutional policy, custom, or practice.” Smith v. City of Huntington, No. 3:17-cv-03806, 2017 WL 5180456, at *3 (S.D. W.Va. Sept. 28, 2017), adopted sub nom. Smith v. City of Huntignton, 2017 WL 5180437 (S.D. W.Va. Nov. 8, 2017); see also Woods v. S.C. Dep't of Health & Human Servs., No. 3:18-cv-00834-MGL-KDW, 2019 WL 1995136, at *6 (D.S.C. Apr. 18, 2019) (finding that a “claim for prospective injunctive relief permitted by Ex Parte Young . . . would be brought against state officers or agency employees in their official capacities”), adopted, 2019 WL 1995511 (D.S.C. May 6, 2019).
Further, a plaintiff must show some special relationship between the state actor sued and the actions sought to be prospectively enjoined. Kobe v. Haley, 666 Fed.Appx. 281, 299 (4th Cir. 2016). “Practically speaking, a plaintiff must name as a defendant one or more state officials or employees who has both the responsibility for the alleged ongoing violations of federal law and the authority to provide prospective redress for those alleged ongoing violations, i.e., the authority to end the alleged ongoing violations.” Woods, 2019 WL 1995136, at *6 (citing Kobe, 666 Fed.Appx. at 299-300; Allen v. Coll. of William and Mary, 245 F.Supp.2d 777, 791 (E.D. Va. 2003) (noting Ex Parte Young relief may only be pursued against a state official if that official has the authority to provide the relief sought). “This requirement of proximity to and responsibility for the challenged state action is not met when an official merely possesses [g]eneral authority to enforce the laws of the state.” McBurney, 616 F.3d at 331 (internal citation and quotation marks omitted).
Plaintiffs allege that Plaintiff Green is subject to ongoing violations of his constitutional rights because he remains on the “national sex offender database.” (Dkt. No. 84 at 5.) Plaintiffs therefore request injunctive relief in the form of, inter alia, removing Green from the registry. (Id. at 13-14.) It appears undisputed that Defendant Keel is the only Defendant with the authority to do this. (See generally Dkt. Nos. 90-1, 92, 94.) Nevertheless, Defendants contend that the Ex Parte Young exception to Eleventh Amendment immunity is inapplicable here. (Dkt. No. 90-1 at 12.)
Specifically, Defendants contend that Plaintiffs cannot show that they are entitled to injunctive relief because Plaintiffs already have an adequate remedy at law. (Id. at 13.) Defendants explain that “the law regarding sex offenders has changed.” (Id.) Defendants state that “[u]nder the original law, Plaintiff Jonathan Green did not have the ability to apply for removal from the registry,” but “[u]nder the new law, Plaintiff Jonathan Green does have the ability to apply for removal from the registry.” (Id.) (emphasis added). Plaintiffs retort that “the Defense is mistaken . . . because (1) Plaintiff [Green] cannot in fact apply for removal without committing perjury, and (2) even if Green could apply for removal, such process does not grant complete relief to Plaintiffs.” (Dkt. No. 92 at 9.) Plaintiffs explain that “[t]he application [for removal] required that Green swear under the penalty of perjury that he was required to register because of a conviction and that he is eligible to be removed under the laws of the jurisdiction of conviction” and that “[t]he application [for removal] does not contemplate a situation such as Green's where he was never ordered by any Court to register as a sex offender nor does it contemplate a situation where one was told to register in South Carolina due to an out-of-state adjudication.” (Id. at 10.) Plaintiffs further argue that “applying for removal solidifies the premise that Green was lawfully placed on the sex offender registry to begin with” and that “[t]here is [] no guarantee that his application and request would even be granted.” (Id.)
“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'” Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Md, 535 U.S. 635, 636 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296, 298-299 (1997). Further, “the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.” Id. (referencing Coeur d'Alene, 521 U.S. at 281). Thus, at this early stage of the litigation the undersigned need not consider whether the process for Green to apply for removal provides an adequate and complete remedy at law that precludes Plaintiffs' requested injunctive relief. The Second Amended Complaint alleges an ongoing violation to the extent Green remains on the Registry, and requests injunctive relief in the form of Green being removed from it. (See generally Dkt. No. 84.) It is undisputed that Defendant Keel may have the authority to provide the relief Plaintiffs seek. (See generally Dkt. Nos. 90-1, 92, 94.) Indeed, South Carolina law vests this authority in the Chief of SLED. See S.C. Code Ann. § 23-3-410 (“The registry is under the direction of the Chief of the State Law Enforcement Division (SLED).”). The undersigned therefore declines to find that Plaintiffs' claims against Defendant Keel do not fall into the Ex Parte Young exception to Eleventh Amendment immunity. Accordingly, the undersigned recommends that Plaintiffs' § 1983 claim for injunctive relief against Defendant Keel in his official capacity should survive.
To the extent Defendants argue that Plaintiffs' claims against Defendant Keel should be dismissed because the Second Amended Complaint “is devoid of any allegations of personal involvement by Dorchester County or Chief Keel, (Dkt. No. 90-1 at 4), the undersigned notes that “personal participation is not a necessary condition” for injunctive relief against state officers in their official capacity. Doe v. Citadel, No. 2:21-cv-04198-DCN, 2022 WL 2806473, at *4 (D.S.C. July 18, 2022).
By contrast, Plaintiffs' claims against Defendants Nash and Knight in their official capacities should be dismissed. Indeed, Defendants Nash and Knight should be considered “arms of the state,” and Plaintiffs have failed to show that Defendants Nash and Knight have the authority to provide the prospective injunctive relief Plaintiffs seek, meaning that the Ex Parte Young exception to Eleventh Amendment Immunity is inapplicable to these Defendants.
D. Qualified Immunity
With respect to Plaintiffs' claims against Defendants Keel, Nash, and Knight in their individual capacities, Defendants argue that they are entitled to qualified immunity. (Dkt. No. 90-1 at 7.) Law enforcement officers sued in their individual capacities are “entitled to invoke qualified immunity, which is . . . immunity from suit itself.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). “‘[Q]ualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.'” Id. (quoting Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Defendants bear the burden of proving that they are entitled to qualified immunity. Danser v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014).
To determine whether an officer is entitled to qualified immunity, the Court must consider: (1) whether a constitutional violation occurred; and (2) whether the right violated was clearly established, though the court need not decide the issues in that precise order. Cooper, 735 F.3d at 158. “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna ex rel. Leija, 577 U.S. 7, 11 (2015). “That right must not be defined ‘at a high level of generality' but with precision.” Mays v. Sprinkle, 992 F.3d 295, 301 (4th Cir. 2021) (quoting City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 613 (2015)). Such precision “requires looking to the law at the time of the conduct in question.” Id.
Here, Defendants argue that Plaintiffs have not alleged a violation of a clearly established constitutional right in their Second Amended Complaint. (Dkt. No. 90-1 at 7.) Defendants explain:
Up until the decision in Powell v. Keel, 433 S.C. 457 (2021), the South Carolina Supreme Court had repeatedly upheld the constitutionality of the sex offender registry. In 2002, the S.C. Supreme Court held that the sex offender registry did not violate the ex post facto clause and was not punitive. See State v. Wells, 348 S.C. 26 (2002). In 2003, the Court held that requiring a convicted Colorado sex offender to be placed on the South Carolina lifetime registry was not a violation of the offender's constitutional rights. Hendrix v. Taylor, 353 S.C. 542, (2003), overruled by Powell v. Keel, 433 S.C. 457 (2021). The Hendrix court held that registering out-of-state offenders in South Carolina was “reasonably related to the legitimate state purpose of protecting the public and aiding law enforcement in limiting the risk that sex offenders pose to communities.” Id., at 550. The Hendrix court followed its holding in Wells in finding that the registry did not violate an offender's due process rights as the registry was non-punitive and did not implicate a liberty interest. Hendrix, 353 S.C. At 552.
Also in 2003, the S.C. Supreme Court held that requiring life time registrations for an eleven-year-old who had committed criminal sexual conduct with a minor was not unconstitutional. In re Ronnie A., 355 S.C. 407 (2003), overruled by Powell v. Keel, 433 S.C. 457 (2021). The Court held that the “registration of offenders, including juveniles who have proved themselves capable of certain sex offenses, is rationally related to achieving this legitimate objective. Appellant has offered no valid basis upon which to distinguish juvenile sex offenders for purposes of due process.” Id. at 409-10 (emphasis added). In 2013, the S.C. Supreme Court held that requiring a juvenile to submit to electronic monitoring for life was not unconstitutional. In re Justin B., 405 S.C. 391 (2013).
As recently as 2017, the S.C. Supreme Court had found that placement of juvenile offenders on the sex offender registry for life was constitutional. In Int. of Justin B., 419 S.C. 575 (2017). The Court issued the following holding: “The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens-including children-from repeat sex offenders. The requirement, therefore, is not unconstitutional.” Id. at 586-587.
In Powell v. Keel, the S.C. Supreme Court did not hold that requiring a person to register as a sex offender was unconstitutional. The Court also did not hold that lifetime registration was by itself unconstitutional. Rather, the Court held that the Act's lifetime registration requirement without the “opportunity for judicial review to assess the risk of re-offending” was a due process violation. Powell, 433 S.C. at 472. In a footnote, the Powell court stated that it was not passing judgment on any claims that the Act violated a person's rights under the Eighth Amendment, the Equal Protection Clause, or the Ex Post Facto Clause. Id. at 472, footnote 5.(Id. at 8-9) (emphasis in original).
In response, Plaintiffs contend that they “have asserted a violation of their constitutional rights which were clearly established and that a reasonable official would have known about” because “Green was placed on the sex offender registry without any judge or process determining he should be labeled as such” and “labeling a child as a sex offender for life without any process or opportunity to be heard was clearly established at the time.” (Dkt. No. 92 at 4.) Plaintiffs further argue that publishing Plaintiffs' information online was a violation of a clearly established constitutional right about which Defendants should have known. (Id. at 5.)
Assuming without deciding that Plaintiffs' constitutional rights were violated when Green was required to register as a sex offender in 2000, the individual Defendants are nonetheless entitled to qualified immunity because such rights were not clearly established. The Supreme Court has explained that a right is clearly established when “its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted). In other words, the unlawfulness of the action must be apparent. Id. That is not the case here. As Defendants succinctly state:
[T]he law before 2021 (the timeframe when defendants' actions allegedly took place) was that the Act was constitutional and that lifetime placement on the registry was not a violation of a person's constitutional rights.
Even after 2021, the law is not so clearly settled to indicate the Act or its requirements are unconstitutional. The S.C. Supreme Court did not say that all sex
offenders needed to be immediately taken off the registry nor that state agencies needed to change their practices. Instead, the Court held that the legislature needed to amend the Act to add an opportunity for judicial review. The Act has since been amended and allows a process for offenders to be removed from the registry.
Plaintiffs appear to allege that Defendants should have known that Plaintiffs' placement on the registry in 2000, 2007, 2015, and after was unconstitutional. However, in those years, based on the cases cited above, the South Carolina Supreme Court did not believe that a lifetime placement on the registry was unconstitutional nor that the Act itself was unconstitutional. Because the law was unsettled at the time and remains unsettled as to any specific actions of the individual Defendants, the individual Defendants are entitled to qualified immunity.(Dkt. No. 90-1 at 10.)
Plaintiffs point the Court to no legal support contrary to Defendants' assertions. (See generally Dkt. No. 92.)Further, Plaintiffs do not plead or proffer facts demonstrating that a reasonable official would have known that registering Plaintiff Green on the Registry violated his constitutional rights, nor any facts to show that pre-existing law established such an act as unlawful. (See generally Dkt. Nos. 84, 92.) Accordingly, the undersigned agrees with Defendants and recommends that the individual Defendants (Nash, Knight, and Keel) are entitled to qualified immunity for claims brought against them in their individual capacities. See Oliver v. Dep't of Pub. Safety & Corr. Servs., 350 F.Supp.3d 340, 352-53 (D. Md. 2018), aff'dsub nom. Oliver v. Bartholomew, 785 Fed.Appx. 166 (4th Cir. 2019) (“Because the plaintiff's right not to be listed in the [Maryland Sex Offender Registration Act] was not clearly established at the time the alleged violation occurred, qualified immunity insulates the individual defendants in this case from liability under § 1983.”).
In fact, Plaintiffs do not cite any case law at all to support their proposition that Defendants Nash, Knight, and Keel should have known that they were violating Plaintiffs' constitutional rights. (See generally Dkt. No. 92.)
In sum, the undersigned RECOMMENDS that Defendants' Motion to Dismiss (Dkt. No. 90) should be DENIED as to Plaintiffs' claim for injunctive relief against Defendant Keel and GRANTED as to all other claims. The undersigned therefore RECOMMENDS that Defendants Dorchester County, Nash, and Knight should be DISMISSED from this litigation.
II. Motion to Amend
Rule 15(a) provides that leave to amend should be “freely give[n] . . . when justice so requires.” Fed.R.Civ.P. 15(a). However, leave to amend should be denied when an amendment would be futile, and an amendment is considered futile when it is “clearly insufficient or frivolous on its face.” Laber, 438 F.3d at 426-27; Johnson, 785 F.2d at 510. As noted supra, the proposed Third Amended Complaint attached to Plaintiffs' Motion to Amend does not resolve the relevant deficiencies in Plaintiffs' Second Amended Complaint. (See generally Dkt. No. 93-1.) Indeed, nothing in the proposed Third Amended Complaint changes the undersigned's recommendation that Defendants' Motion to Dismiss be denied as to Plaintiffs' claim for injunctive relief against Defendant Keel in his official capacity and granted as to all other claims. Accordingly, Plaintiffs' proposed Third Amended Complaint is futile. See Johnson, 785 F.2d at 510. The undersigned therefore ORDERS that Plaintiffs' Motion to Amend (Dkt. No. 93) be DENIED.
Plaintiffs' Motion to Amend confirms this, stating “Plaintiffs seek to amend the complaint to allege personal involvement of Defendants more clearly and to clearly state how JGCRE's constitutional rights have been violated.” (Dkt. No. 93 at 4.) These are not the bases on which the undersigned recommends dismissing Plaintiffs' claims.
III. Motion for Preliminary Injunction
A preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24. To obtain a preliminary injunction, Plaintiffs must show:
(1) They are likely to succeed on the merits;
(2) They are likely to suffer irreparable harm in the absence of preliminary relief;
(3) The balance of equities tips in their favor; and
(4) An injunction is in the public interest.Id. at 20; see also Di Biase, 872 F.3d at 230 (stating the moving party must “clearly establish[ ]” entitlement to the injunction he wants). Plaintiffs must satisfy all four requirements to obtain relief. Real Truth About Obama, Inc., 575 F.3d at 346.
Here, Plaintiffs claim that they are entitled to a preliminary injunction and request that “the Court order Defendant Keel to remove Plaintiff Jonathan Green from the South Carolina Sex Offender Registry [] pending disposition of this action.” (Dkt. No. 87 at 1.) Plaintiffs further request “destruction of Defendants' fingerprint and photographic records of Plaintiff [Green].” (Id.) Defendants claim that Plaintiffs are not entitled to a preliminary injunction because there is now a “clear avenue to obtain the relief sought under the South Carolina Sex Offender Registry Act.” (Dkt. No. 89 at 2.) Because the undersigned finds that Plaintiffs are unlikely to succeed on the merits of their claims, the undersigned denies Plaintiffs' motion.
The undersigned has recommended that Defendants' Motion to Dismiss be granted as to all but one of Plaintiffs' claims. (See supra at 9-27.) It follows that Plaintiffs are not likely to succeed on the merits of those claims. With respect to Plaintiffs' one remaining claim-their claim for injunctive relief against Defendant Keel-it is unclear at this stage of the litigation whether this claim will succeed. To succeed on such a claim, Plaintiffs must show: (1) irreparable injury, (2) that remedies at law “are inadequate to compensate for that injury,” (3) “the balance of hardships between the plaintiff and defendant” warrants a remedy, and (4) an injunction would not disserve the public interest. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010). Based on the information before the Court at this stage, it appears that Plaintiffs' claim for injunctive relief would fail on the second prong. Id.
As Defendants correctly note, Plaintiffs now have a legal remedy that did not exist previously. (Dkt. No. 89 at 2; Dkt. No. 90-1 at 12-13.) In the wake of Powell v. Keel, a recent South Carolina Supreme Court case that determined certain of South Carolina's sex offender registry requirements were unconstitutional, the South Carolina legislature passed new laws to allow a person on the Registry to apply for removal. 433 S.C. 457 (2021). Most pertinently, Section 23-3-430 of the South Carolina Code reads:
(A) After successful completion of the requirements of this section, an offender may apply to the South Carolina Law Enforcement Division for the termination of the requirements of registration pursuant to this article. If it is determined that the offender has met the requirements of this section, SLED shall remove the offender's name and identifying information from the sex offender registry and shall notify the offender within one hundred twenty days that the offender has been relieved of the registration requirements of this article.
(1) An offender may file a request for termination of the requirement of registration with SLED, in a form and process established by the agency:
...
(c) an offender who was required to register as an offender because of a conviction in another state or because of a federal conviction may apply to be removed from the requirements of the registry if he is eligible to be removed under the laws of the jurisdiction where the conviction occurred.
...
(B) Upon receipt of the request for termination, SLED shall review documentation provided by the offender and contained in the offender's file and the sex offender registry to determine whether the offender has complied with the requirements of this section. In addition, SLED shall conduct fingerprint-based state and federal criminal history checks to determine whether the offender has been convicted of any additional sexual offenses, as defined in Section 23-3430.
(C) If all the requirements of this section are verified, SLED shall, within one hundred twenty days of receipt of the request for termination, remove an offender's name from the registry and notify the offender that the offender is no longer required to comply with the registry requirements of this article.
...
(E) An offender whose request for termination of registration requirements is denied by SLED is entitled to appeal the denial to the general sessions court pursuant to the requirements of Section 23-3-463 for the county in which the conviction occurred if the conviction occurred within the State, or if not, the county in which the offender resides. Individuals placed on the registry as a juvenile should petition the family court that adjudicated them delinquent. The SLED official who denied the request for termination of registration requirements may submit an affidavit to the court detailing the reasons the request was denied.S.C. Code Ann. § 23-3-462 (emphasis added). A plain reading of this statute demonstrates that it affords Plaintiffs the injunctive relief they request, for Plaintiff Green to be removed from the Registry. (Dkt. No. 84 at 14.)
The undersigned does not find Plaintiffs' arguments to the contrary convincing. (See supra at 22-23.) To the extent Plaintiffs allege that Plaintiff Green cannot submit an application for removal without committing perjury, this seems unlikely. (Dkt. No. 91 at 2; Dkt. No. 92 at 9.) Indeed, the application for removal contemplates adjudications in addition to convictions, and SLED's website provides guidance on applying for removal for those adjudicated delinquent as juveniles. See https://www.sled.sc.gov/sor_removal. Further, though Plaintiff was adjudicated delinquent, rather than convicted, he was still placed on the registry due to offenses committed in another state. (Dkt. No. 84 at 3.) He specifically claims that he “was informed that he was required to register as a sex offender” because of those offenses. (Id.) This is not contrary to the language of the removal application.
Additionally, if Green was not initially required to register as a sex offender under Virginia's laws, he would not be required to register as one now. Green would therefore be eligible for removal from the Registry under Virginia's laws. Finally, although Plaintiffs are correct that there is no guarantee that Green's application for removal will be granted, the statute provides that Green is entitled to appeal any such denial to the general sessions court for the county in which he resides. See S.C. Code Ann. § 23-3-462(E).
Based on the foregoing, the undersigned cannot conclude that Plaintiffs are likely to succeed on the merits of their claim for injunctive relief against Defendant Keel where Plaintiffs appear to have an adequate remedy at law for obtaining the injunctive relief they request. Thus, Plaintiffs cannot establish that they are entitled to preliminary injunctive relief. See Real Truth About Obama, Inc., 575 F.3d at 346. Plaintiffs' motion (Dkt. No. 87) is therefore DENIED.
To the extent Plaintiffs also request that Defendants notify the Department of Justice of Plaintiff Green's removal from the registry, destroy all information that relates to Defendant Green that is in their possession, and provide proof of the same to Plaintiffs, these requests would presumably be resolved upon Green's removal from the registry. (See Dkt. No. 89 at 4.)
CONCLUSION
For the reasons set forth above, the undersigned RECOMMENDS that Defendants' motion (Dkt. No. 90) be GRANTED IN PART AND DENIED IN PART. More specifically, the undersigned recommends that Plaintiffs' claim for injunctive relief against Defendant Keel in his official capacity should survive. Plaintiffs' remaining claims should be dismissed, and Defendants Dorchester County, Nash, and Knight should be dismissed from this litigation.
The undersigned ORDERS that Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 87)and Motion to Amend (Dkt. No. 93) be DENIED.
The undersigned notes that Plaintiffs' motion (Dkt. No. 87) is denied without prejudice and with leave to refile should the District Judge disagree with the undersigned's recommendations on Defendants' Motion to Dismiss (Dkt. No. 90).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).