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Bush v. Frazier

United States District Court, N.D. Alabama, Southern Division

July 23, 2019

CLIFTON R. BUSH, SR., Plaintiff,
DEBORAH FRAZIER, et al., Defendants.



         Pending before the undersigned is the defendants' motion to dismiss the plaintiff's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 27).[2] For the reasons discussed below, the motion is due to be granted, and this action is due to be dismissed.

         I. Amended Complaint

         The plaintiff, Clifton R. Bush, Sr., and his wife divorced in December 2009. (Doc. 19 at 14). The Circuit Court of Jefferson County, Alabama ordered the plaintiff to pay $743.00 per month in child support. (Id. at 17). The court modified the plaintiff's child support obligation in October 2012. (Id. at 19). The modification reduced the plaintiff's child support obligation to $586.75 per month, retroactive to March 1, 2011. (Id.).

         Between October or November 2017 and March 2018, the Alabama Department of Human Resources (“ADHR”) garnished the plaintiff's account(s) at Regions Bank to collect child support payments he owed. (Id. at 7, 11). According to the plaintiff, the amount garnished was based on his pre-modification obligation. (Id. at 11). The plaintiff alleges Ashley Lee, an ADHR employee, initiated the garnishment without conducting an investigation, submitted incorrect documents to Regions Bank, and otherwise mishandled the matter. (Id. at 7, 12). The plaintiff alleges Deborah Frazier (Lee's supervisor), Aminha Roussell (Assistant Director of ADHR's Child Support Enforcement Program), and Lathesia Saulsberry (Director of ADHR's Child Support Enforcement Program) failed to review or wrongfully approved documents Lee submitted to Regions Bank in connection with the garnishment. (Id. at 7, 12).[3]

         In March 2018, ADHR moved to intervene in the plaintiff's domestic relations case and set aside an agreement into which the plaintiff and his former wife had entered. (Id. at 7-8). The plaintiff had to travel to Birmingham, Alabama from Galveston, Texas for a hearing on the motion. (Id. at 8). During the hearing, ADHR made an oral motion to dismiss, which the court granted. (Id.). The plaintiff alleges ADHR and the defendants had financial interests in his domestic relations proceedings. (Id.).

         Following the hearing, the plaintiff spoke with an agent and/or financial representative of the State of Alabama, who reviewed documents presented to him by the plaintiff, stated “this was not right, ” and gave him contact information for an attorney. (Id.). The attorney reviewed the documents and told the plaintiff “to talk to someone in Montgomery to resolve the matter.” (Id.).

         On or about April 30, 2018, the plaintiff met with Saulsberry and Roussell. (Id. at 8-9). He presented documents related to his divorce proceedings to them. (Id. at 9). Roussell said ADHR did not have the court documents and made copies. (Id.). Saulsberry and Roussell then coerced the plaintiff into signing a “review paper, ” stating that was the only way for his money to be returned. (Id.).

         Based on the foregoing factual allegations, the plaintiff claims ADHR, Lee, Frazier, Roussell, and Saulsberry violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights under the U.S. Constitution;[4] 15 U.S.C. §§ 1672(c) and 1673(c), which are garnishment provisions of the Consumer Credit Protection Act; 18 U.S.C. § 666, which criminalizes theft or bribery concerning programs receiving federal funds; 42 U.S.C. § 1983, which prohibits the deprivation of federal rights by “persons” acting under color of state law; 45 C.F.R. §§ 302.34 and 302.50(e), which set out state plan requirements for child support enforcement programs under Title IV-D of the Social Security Act; Ala. Code § 13A-8-2, which criminalizes theft of property; and Ala. Code § 13A-8-3, which provides that theft of property exceeding $2, 500 in value constitutes first-degree theft of property, a Class B felony. (Id. at 7-13). He also alleges Frazier, Roussell, and Saulsberry failed to properly train employees under their supervision. (Id. at 7, 12). He requests a variety of monetary damages. (Id. at 11-13).

         II. Standard of Review

         Dismissal under Rule 12(b)(6) is appropriate if a complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[L]abels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” and “naked assertion[s] devoid of further factual enhancement” are insufficient. Id. (quoting Twombly, 550 U.S. at 555, 557) (internal quotations omitted). “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “This leniency, however, does not require or allow courts to rewrite an otherwise deficient pleading in order to sustain an action.” Thomas v. Pentagon Fed. Credit Union, 393 Fed.Appx. 635, 637 (11th Cir. 2010).

         Although the defendants purport to bring their motion exclusively pursuant to Rule 12(b)(6), their asserted grounds for dismissal implicate Rule 12(b)(1), as well. Dismissal is appropriate under Rule 12(b)(1) where subject matter jurisdiction is lacking. See Fed. R. Civ. P. 12(b)(1). For example, “a dismissal on sovereign immunity grounds should be pursuant to Rule 12(b)(1) because no subject-matter jurisdiction exists.” Thomas v. U.S. Postal Serv., 364 Fed.Appx. 600, 601 n.3 (11th Cir. 2010). Additionally, dismissal pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is appropriate to the extent a plaintiff asserts a claim under a statute that affords no private right of action. See Abner v. Mobile Infirmary Hosp., 149 Fed.Appx. 857, 858-59 (11th Cir. 2005) (holding district court properly found subject matter jurisdiction lacking where statute at issue provided no private right of action).

         “[A] motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint.” McElmurray v. Consol. Gov't of Augusta-Richmond County, 501 F.3d 1244, 1251 (11th Cir. 2007).

A “facial attack” on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. “Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.

Id. (internal quotation marks and citation omitted). The defendants have not submitted evidence outside the pleadings to support their arguments with respect to subject matter jurisdiction.[5] Therefore, they have made a facial attack on the amended complaint.

         III. Discussion

         A. Section 1983 Claims

         Title 42, Section 1983 of the U.S. Code “ ‘is not itself a source of substantive rights.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). It provides a private right of action to vindicate violations of federal rights elsewhere conferred by the U.S. Constitution and federal statutes. See Id. (recognizing purpose of § 1983); Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980) (rejecting argument § 1983 provides cause of action only for constitutional violations).

         Accordingly, the undersigned construes the plaintiff's claim for a violation of § 1983 as a vehicle for asserting his claims for violations of various other federal constitutional, statutory, and regulatory provisions. See Green v. Pennington, 2006 WL 1553999, at *1 (N.D.Ga. May 30, 2006) (holding claim for violation of § 1983 was more appropriately viewed as vehicle for bringing claims for due process and equal protection violations). So construed, the plaintiff's claims brought pursuant to § 1983 implicate whether the defendants are “persons” subject to suit under § 1983, as well as sovereign and qualified immunity. These defenses will be addressed after consideration of the plaintiff's the failure-to-train claim against Frazier, Roussell, and Saulsberry.

         1. Failure-to-Train Claim

         “[U]nder § 1983, a supervisor can be held liable for failing to train his or her employees ‘only where the failure to train amounts to deliberate indifference to the rights of persons with whom the [subordinates] come into contact.'” Keith v. DeKalb Cty., Georgia, 749 F.3d 1034, 1052 (11th Cir. 2014) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). “[A] plaintiff alleging a constitutional violation premised on a failure to train must demonstrate that the supervisor had ‘actual or constructive notice that a particular omission in [the] training program causes [subordinates] to violate citizens' constitutional rights,' and that armed with that knowledge the supervisor chose to retain that training program. Id. (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). To establish the requisite actual or constructive notice, “ ‘[a] pattern of similar constitutional violations by untrained employees is ordinarily necessary.'” Id. at 1053 (quoting Connick, 563 U.S. at 62); see also Belcher v. City of Foley, Alabama, 30 F.3d 1390, 1397-98 (11th Cir. 1994) (“Failure to train can amount to deliberate indifference when the need for more or different training is obvious, such as when there exists a history of abuse by subordinates that has put the supervisor on notice of the need for corrective measures, and when the failure to train is likely to result in the violation of a constitutional right.” (internal citations omitted)).

         Here, the plaintiff does not allege a pattern of similar constitutional violations by untrained employees or any other facts that would support the inference Frazier, Roussell, or Saulsberry had actual or constructive notice of a deficiency in their training of subordinates. Accordingly, to the extent the plaintiff asserts a failure-to-train claim against these defendants pursuant to § 1983, that claim is due to be ...

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