Walker v. Harmon, CIV. 15-5037-JLV

CLAYTON WALKER, Plaintiff, v. JOSEPH HARMON, individual capacity, and BLACK HILLS FUGITIVETASK FORCE, Defendants.

CIV. 15-5037-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

September 26, 2016

ORDER

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).

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,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 IndianTribe, 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.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 03-5876,2005 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 (...