Opinion
C/A 21-385-DCN-SVH
02-14-2022
Stewart R. Buchanan, also known as Daphne Renee' Stewart, Plaintiff, v. JumpStart South Carolina; Michael Scharff, Chairman, Bd. Of Dir., JumpStart South Carolina; Daniel Sulton, Vice-Chairman, Bd. Of Dir., JumpStart South Carolina; Bob Caldwell; Sharon McDowell; Chris Phillips; Chuck Fields; Tommy Holt; Mike Kiriakides; Chris Urban; Tommy Moore; Carey Sanders; David Johnson; NFN Beard; Bryan Stirling; Larry Epps; Charles Williams; and Willie Davis, Defendants.
REPORT AND RECOMMENDATION AND ORDER
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Stewart R. Buchanan, also known as Daphne Renee' Stewart, (“Plaintiff”), proceeding pro se and in forma pauperis, filed this suit on February 5, 2021, against JumpStart South Carolina (“JumpStart”) and multiple members of that organization, in their individual and official capacities, including Michael Scharff, a member of the JumpStart Board of Directors (collectively “JumpStart Defendants”). Plaintiff additionally brings suit against the following employees of the South Carolina Department of Corrections (“SCDC”): Bryan Stirling (“Stirling”), SCDC Director; Larry Epps (“Epps”), the SCDC senior chaplain at Perry Correctional Institution (“PCI”); PCI warden Charles Williams; and Willie Davis. Plaintiff asserts claims under 42 U.S.C. § 1985 and § 1986 for conspiracy to violate his civil rights.Plaintiff also asserts claims pursuant to 42 U.S.C. § 1983 for violations of his First and Fourteenth Amendment rights; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et seq. (“Fair Housing Act”); and South Carolina statutory and constitutional law. [ECF No. 1 at 4, 6, ECF No. 1-1 at 13-16]. Plaintiff seeks declaratory and injunctive relief and monetary damages.
According to the JumpStart Defendants, Plaintiff has incorrectly identified JumpStart as “JumpStart, Inc.” rather than “JumpStart South Carolina” and Scharff as “Sharff.” [See ECF No. 21 at 1 n.1 & n.2]. The undersigned employs the correct entity name and spelling and directs the Clerk of Court of conform the caption of this case accordingly.
Because Plaintiff refers to himself using male pronouns, the court does so as well. [See, e.g., ECF No. 1 at 5].
This matter comes before the court on the JumpStart Defendants' motion to dismiss. [ECF No. 21]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to the motion. [ECF No. 23]. Also pending before the court is Plaintiff's motion for default judgment as to the JumpStart Defendants in their individual capacities. [ECF No. 29]. The motions having been fully briefed [see ECF Nos. 33, 34, 38, 40, 41], they are ripe for disposition.
Also pending before the court are motions filed by Plaintiff that are not yet ripe. [See ECF Nos. 42 (motion in limine), 43 (motion to strike)].
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), the case has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge deny JumpStart Defendants' motion to dismiss and Plaintiff's motion for default judgment.
I. Factual Background
Plaintiff is an inmate housed at PCI. [ECF No. 1-1 ¶ 9]. Plaintiff alleges in a verified complaint that, at PCI, Stirling and select JumpStart Defendants were involved in the creation and maintenance of a “joint program using state resources to offer inmates state-assisted employment opportunities and state-assisted low rent housing opportunities as a re-entry plan for the inmates' release.” Id. ¶ 29.
In support, Plaintiff has submitted a memorandum of understanding providing the following:
WHEREAS, SCDC is required to aid incarcerated individuals with reentry into their communities pursuant to Section 24-132110, et seq. of the South Carolina Code of Laws of 1976, as amended; and
WHEREAS, Jumpstart provides certain services including discipleship, re-entry workshops, employment readiness activities, and other programs to assist incarcerated individuals prepare for and successfully reenter their communities; and
WHEREAS, SCDC desires, and Jumpstart agrees, to enter into this Memorandum of Understanding whereby Jumpstart shall provide services to eligible inmates within SCDC to help ensure a successful reentry for such inmates into South Carolina communities ....
Monitoring of Jumpstart services will be the responsibility of SCDC Chaplains at the facilities where the services are performed ....
Compliance with Rules and Regulations: JumpStart agrees that it and its volunteers and employees must comply with all policies and procedures of SCDC and all federal, state, and local laws, ordinances, regulations, and accreditation standards.
JumpStart employees/volunteers are not SCDC Employees: JumpStart employees/volunteers performing under this Agreement are not to be deemed to be employees of SCDC nor as agents of SCDC in any manner whatsoever ....[ECF No. 40-2 at 1-2].
Courts generally do not consider matters outside the pleadings in ruling on a motion to dismiss. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). However, a court may consider documents outside the pleadings without converting a motion to dismiss into one for summary judgment if those documents are “integral to and explicitly relied on in the complaint” and their authenticity is unchallenged. Copeland v. Bieber, 789 F.3d 484, 490 (4th Cir. 2015).
Plaintiff alleges that to participate in the JumpStart program at PCI, an inmate must pass “a rigorous, forty (40) week, Christian religious character litmus test called the ‘JumpStart Re-Entry Assessments'” or “Cohorts, ” the tenets of which were “developed and published” by JumpStart Defendants and were “approved and established” by Stirling and Epps. [ECF No. 1-1 ¶¶ 29-30, 32]. Plaintiff describes these tenets as “five (5) groupings of Christian theology, ” “(1) CONNECT: You were formed for God's family, (2) GROW: You were created to become like Christ, (3) SERVE: You were shaped for serving God, (4) SHARE: You were made for a mission, (5) WORSHIP: You were planned for God's pleasure.” Id. ¶ 30. Plaintiff alleges these groupings and associated attributes are applied and scored “to assess an inmate's suitability to receive state-assisted re-entry assistance, ” resulting in “screening out inmates to not receive these state benefits whose Christianity is not of a certain type.” Id.
Plaintiff alleges Stirling and Epps make available SCDC real estate and other assets to JumpStart “including buildings, seating for over 100, podiums, desks, tables, microphones and stands, amplifiers, speakers, conference rooms, telephones, computers, printers, volunteer inmate labor, and other available and needed resource[s]” to conduct the Cohorts using the JumpStart Re-Entry Assessments. Id. ¶ 32. Plaintiff alleges that
Upon completion of a Cohort at [PCI], Defendant Epps has and uses the authority to make all final decisions as to who is denied employment and housing opportunities, and he used the JumpStart Re-Entry Assessment to publish his final decision.Id. ¶ 33.
On January 24, 2019 [sic], Epps approved Plaintiff to participate in the Perry Cohort #8. Id. ¶ 34. On October 24, 2018, Epps decided, based on Plaintiff's scores on the JumpStart Re-Entry Assessments, Plaintiff would graduate at the very top of the class, one of only two such graduates from the past two years involving more than 200 inmates. Id. Immediately thereafter, Epps employed Plaintiff as a “coach” for Perry Cohort #9. Id.
One of the JumpStart Defendants, David Johnson (“Johnson”), an inside coordinator for JumpStart, appeared before the South Carolina Parole Board on November 13, 2018, to represent Epps's decision that, if paroled, Plaintiff would be guaranteed employment and housing by JumpStart. Id. ¶¶ 22, 35. Plaintiff was denied parole. Id. ¶ 35.
Plaintiff alleges his job performance continued to exceed minimum requirements and his personal ministry expanded to providing Sunday School and visitation for PCI's handicapped in the assisted living unit until Epps learned that Plaintiff lived openly as transgendered between 2004 and 2008. Id. ¶ 36. Epps then banned Plaintiff from using the PCI chaplaincy offices and equipment for his regular prison job as recreation liaison. Id.
On February 24, 2019, Plaintiff filed an American with Disabilities (“ADA”) discrimination complaint against Epps that was answered by an ADA legal advisor on February 25, 2019, stating, in part, as follows:
Discrimination against any individual is wrong, however, the Civil Rights Act of 1964 addresses the issue of sex discrimination not the ADA .... Nevertheless, I brought your concerns to the attention of the Chief of Pastoral Services.Id. ¶ 37.
Plaintiff alleges that on February 25, 2019, associate warden Susan Duffy advised “Epps of his potential liability and recommended he speak with Plaintiff.” Id. ¶ 38. Later that same day, Plaintiff was in Epps's office when SCDC chief chaplain Michael Brown telephoned to advise Epps that Plaintiff had filed a civil rights complaint against him. Id. ¶ 39.
On March 13, 2019, Epps met with Johnson and an additional JumpStart Defendant, NFN Beard (“Beard”), an unpaid employee of JumpStart, to discuss Plaintiff's transgender status and complaint. Id. ¶¶ 23, 40. Plaintiff alleges they agreed to terminate him from Perry Cohort #9 employment and “constructively deny him employment and housing opportunities with JumpStart . . . though Plaintiff's job performance and public deportment remained superior.” Id. ¶ 40.
At 2:00 p.m. on March 13, 2019, Johnson and Beard summoned Plaintiff to the PCI chaplaincy office, and the following interaction occurred:
Johnson: Steward, I understand you identify as transgender.
Plaintiff: I have been diagnosed with Gender Identity Disorder, but I identify as a Christian.
Johnson: It's all about appearances, Steward, all about appearances. And you've filed a complaint in Columbia against Chaplain Epps, so you'[v]e defied spiritual authority .... I just got off the phone with [another JumpStart Defendant, Carey Sanders (“Sanders”)] and he told me to let you know you have one of two choices-you can go through JumpStart again, or you can walk out the door.Id. ¶ 41. Plaintiff alleges he was thus discharged from Perry Cohort #9 employment and constructively denied state-assisted employment and state-assisted housing opportunities with JumpStart. Id.
Plaintiff alleges he contacted Sanders, who refused to reverse the March 13, 2019 decision. Id. ¶ 42. Plaintiff then appealed Sanders' refusal to Epps, who also refused to reverse the March 13, 2019 decision. Id. ¶ 43. Finally, Plaintiff alleges he notified the following JumpStart Defendants about the alleged situation, receiving no response: Scharff, Daniel Sulton (“Sulton”), Bob Caldwell (“Caldwell”), Sharon McDowell (“McDowell”), Chris Phillips (“Phillips”), Chuck Fields (“Fields”), Tommy Holt (“Holt”), Mike Kiriakides (“Kiriakides”), Chris Urban (“Urban”), and Tommy Moore (“Moore”). Id. ¶ 46.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. JumpStart Defendants' Motion to Dismiss
JumpStart Defendants, in their motion to dismiss, do not argue Plaintiff has failed to state claims upon which relief can be granted or otherwise challenge the merits of Plaintiff's claims. Instead, they argue only that claims against them should be dismissed because they are not state actors; thus, Plaintiff's claims “premised on 42 U.S.C. §§ 1983, 1985, and 1986 for purported violations of Plaintiff's rights under the First and Fourteenth Amendments of the U.S. Constitution and South Carolina Constitution” and constitutional claims cannot proceed against them. [See ECF No. 21 at 3].
Because JumpStart Defendants have not challenged whether Plaintiff has stated viable claims if brought against state actors, the court does not address this issue.
A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). “Section 1983 imposes liability on any person who, under the color of state law, deprives another person ‘of any rights, privileges, or immunities secured by the Constitution and laws.'” Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). “Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997); see also Cox v. Duke Energy Inc., 876 F.3d 625, 632 (4th Cir. 2017) (“[T]o be sued under § 1983, a defendant must either be a state actor or have a sufficiently close relationship with state actors such that a court would conclude that [it] is engaged in the state's actions.”) (citation omitted)).
“Anyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Filarsky v. Delia, 566 U.S. 377, 383 (2012) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). No one factor is determinative of state action; rather, the state action must be determined by considering the totality of the circumstances. See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 341-43 (4th Cir. 2000). Private conduct, without state action, is not actionable under § 1983 and the United States Constitution. See Lugar, 457 U.S. at 936.
This analysis likewise applies to claims brought pursuant to 42 U.S.C. §§ 1985 and 1986. See, e.g., Curtis v. Ziteke, C/A No. 3:21-420-CMC-PJG, 2021 WL 1795695, at *1 (D.S.C. Apr. 12, 2021), report and recommendation adopted, C/A No. 3:21-420-CMC, 2021 WL 1791174 (D.S.C. May 5, 2021).
In the past, the Fourth Circuit has “recognized four exclusive circumstances under which a private party can be deemed to be a state actor”:
(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen.Andrews v. Federal Home Loan Bank of Atlanta, 998 F.2d 214, 217 (4th Cir. 1993) (citations omitted). Subsequently, the Fourth Circuit recognized a more flexile approach, stating, “[a]t bottom, the state action determination requires an examination of all the relevant circumstances, in an attempt to evaluate ‘the degree of the Government's participation in the private party's activities.'” Goldstein, 218 F.3d at 342 (citation omitted) (collecting cases); see also id. at 343 (“In short, ‘the Court has articulated a number of different factors or tests in different contexts,' and the facts ‘which would convert the private party into a state actor [vary] with the circumstances of the case.'” (citing Lugar, 457 U.S. at 939)).
As to the specific circumstances of this case, the Fourth Circuit has not determined whether or when a religious volunteer working in a prison may be considered a state actor. Other courts addressing this issue have focused on the specific context at issue and specific challenged conduct, consistent with the direction provided by the Supreme Court that this is a “necessarily fact-bound inquiry.” Lugar, 457 U.S. at 939.
For example, in Phelps v. Dunn, 965 F.2d 93, 102 (6th Cir. 1992), the volunteer chaplain accessed the prison more like an employee than a visitor and agreed to abide by prison policies and regulations, including the policy to explicitly follow the Constitution and guarantee all inmates the right to practice their religion. Id. However, the chaplain actively barred the prisoner from attending a religious service in a prison chapel, disregarding the aforementioned contract, prison policy, and a directive from the warden requiring that the prisoner “be allowed to participate in religious services and [that he] should not be denied participation because of his sexual orientation.” Id. at 99. Therefore, the court held, when he was acting outside of his pastoral role, the chaplain was a state actor. Id.; see also Kahn v. Barela, C/A No. 15-1151 MV/SMV, 2020 WL 5977930, at *9 (D.N.M. Oct. 8, 2020) (holding employees of a private non-profit called Good News Jail and Prison Ministry to be “acting under color of state law” where the plaintiff alleged that he, as a Muslim inmate, was treated differently by defendants compared to treatment provided to Christian inmates); Paz v. Weir, 137 F.Supp.2d 782, 805 (S.D. Tex. 2001) (holding head chaplain of Jail Chaplaincy Ministries, Inc., acted under color of state law for purposes of inmate's 42 U.S.C. § 1983 claims where “the County delegated to a private corporation its duty under state law to provide religious services to inmates and granted this entity broad access to inmates when providing such services, ” also addressing plaintiff's state-law claim for sexual battery against the chaplain).
These cases are not wholly inconsistent with decisions from both the Eighth and Ninth Circuits, where those courts, again, focused on the specific context at issue and specific challenged conduct, carving out as non-state action those decisions made by prison chaplains that are ecclesiastical in nature. In Florer v. Congregation Pidyon Shevuyin, 639 F.3d 916, 924-25, 927 (9th Cir. 2011), the court affirmed the district court's grant of summary judgment, finding that defendants were not state actors, explaining, inter alia, that “[c]haplains and religious leaders do not automatically become state actors when they provide opinions on matters of dogma in response to inquiries from prison officials.” Although the defendants had refused to recognize the plaintiff as Jewish or provide him religious materials or service, the court noted “the record is devoid of any evidence that Defendants conspired with the DOC about Florer's Jewish status” and that “[t]here was no evidence that the DOC wanted Defendants to determine that Florer was not Jewish . . .” Id. at 927; see also id. at 926 (“We decline to apply the holding of Phelps here because Florer was not barred by Defendants from attending the prison's generally available religious services.”).
Likewise, in Montono v. Hedgepeth, 120 F.3d 844, 851 (8th Cir. 1997), the court affirmed, following a trial, that “a prison chaplain, even if a fulltime state employee, is not a state actor when he engages in inherently ecclesiastic functions, ” such as excommunicating an inmate for violation of church law and prohibiting him from attending religious services. The court contrasted the actions at issue, that of disciplining the plaintiff “as a result of the prisoner's perceived transgression of church law, ” with “administrative and managerial tasks . . . required to be perform[ed] as a prison chaplain, which clearly would be fairly attributable to the state.” Id.; see also, e.g., Tyndall v. Iowa, No. C18-3025-LTS, 2021 WL 201782, at *8 (N.D. Iowa Jan. 20, 2021) (on motion for summary judgment, holding “I agree with defendants that Morrison's decision regarding headbands/bandannas falls within the class of an ‘inherently ecclesiastical function' and that Morrison was not acting under color of state law in making such a decision.”); Shilling v. Crawford, No. 2:05 0889 PMP GWF, 2006 WL 1663827, at *5 (D. Nev. June 12, 2006) (“Plaintiff alleges Friedman provided advice as to whether Plaintiff should be considered Jewish. He does not allege that Friedman made the administrative or managerial decision to deny Plaintiff access to kosher meals and other Judaic services.”); Kahn, 2020 WL 5977930, at *9 (“I agree that actions within the course of ecclesiastical functions are outside the scope of § 1983. However, to the extent that Defendants attempt to make any argument about their ecclesiastical duties, it is underdeveloped, and I reject it. Plaintiff has not complained about the theological content of a Bible study. He has alleged that Christian inmates received benefits that were unavailable to him as a Muslim.”).
There is tension between the holdings in Montono and Shilling where both courts focused on the ecclesiastical versus administrative/managerial nature of the decisions at issue but with the Montono court determining that the decision to exclude a prisoner from religious services to be the former and the Shilling court indicating such a decision would be the latter.
Here, JumpStart Defendants agreed to follow SCDC policy and Federal law in implementing their program designed to “assist incarcerated individuals [to] prepare for and successfully reenter their communities.” [ECF No. 40-2 at 1]. Plaintiff has alleged, notwithstanding, that JumpStart Defendants discriminated against him in violation of his rights by having him removed from his employment with the JumpStart Program and by preventing him from accessing future state-supported housing and employment benefits-a decision Plaintiff alleges was made in conjunction with Epps, a state employee. Based on the case law above and taking the allegations in the light most favorable to Plaintiff, these decisions do not appear “inherently ecclesiastical.”
Additionally, Plaintiff has argued the SCDC delegated its statutory responsibility to the JumpStart Defendants as evidenced by the parties' memorandum of understanding [ECF No. 40 at 3], and also has alleged a certain entwinement between Epps and the JumpStart Defendants, an encouragement by Epps as to select JumpStart Defendants regarding the specific actions taken by this group against Plaintiff, or, at the least, that these participants made the decision to act against Plaintiff in concert. As stated by the Supreme Court:
Our cases have identified a host of facts that can bear on the fairness of such an attribution. We have, for example, held that a challenged activity may be state action when it results from the State's exercise of “coercive power, ” when the State provides “significant encouragement, either overt or covert, ” or when a private actor operates as a “willful participant in joint activity with the State or its agents.” We have treated a nominally private entity as a state actor when it is controlled by an “agency of the State, ” when it has been delegated a public function by the State, when it is “entwined with governmental policies, ” or when government is “entwined in [its] management or control.”
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001) (citations omitted).
The JumpStart Defendants argue otherwise, stressing, for example, that the organization is a non-profit that receives no funding from governmental sources in connection with its inside-ministry program, that no members or volunteers are compensated by the government, that the organization has no ability to exercise state power, and that “[n]o governmental entity controls the decisions or actions of JumpStart.” [ECF No. 21 at 3-4, 6, see also ECF No. 21-1 (affidavit from Moore attesting to the same)].
Although these facts may be relevant to determine “the degree of the Government's participation in the private party's activities, ” Goldstein, 218 F.3d at 342, as indicated by the case law above, they are not dispositive. Additionally, the JumpStart Defendants do not address Plaintiff's allegations that Epps, a state employee, makes all final decisions as to who is denied employment and housing opportunities through the JumpStart program and that select JumpStart Defendants agreed with Epps in determining to remove Plaintiff from his employment with the program and exclude him from future benefits.
As stated, Plaintiff has alleged that Epps is employed by the SCDC and is thus a state employee. Because the issue has not been briefed, nor directly presented to the court, the court assumes without deciding that Plaintiff has sufficiently alleged that Epps is a state actor.
The JumpStart Defendants additionally argue that to hold against them “would mean that every volunteer or employee of a non-profit who participates in a religious, charitable program in prisons are somehow engaging in state action.” Id. at 7 (citing McGlothlin v. Murray, 993 F.Supp. 389 (W.D. Va. 1997)).
In McGlothlin, following plenary hearing, the district court adopted the recommendation of the magistrate judge recommending that a privately-employed prison chaplain was not performing a governmental function and therefore was not a state actor, especially when his employer was not under contract with the state but was providing free services. See 993 F.Supp. at 398, 408-09 (finding, following hearing, that the chaplain relied on governmental assistance and benefits minimally, was not providing any governmental functions but was instead providing only religious services, and caused the plaintiff no injury). On appeal, the Fourth Circuit affirmed “on the reasoning of the district court” in an unpublished opinion. McGlothlin v. Murray, Nos. 97-6449, 97-6634, 1998 WL 377895 (4th Cir. July 1, 1998). However, a later disposition in Lee declined to follow McGlothlin and instead gave the prisoner the “benefit of the doubt” on the state actor issue, although it “remain[ed] skeptical” that the chaplain could be liable under § 1983, and dismissed the case on other grounds. Lee v. Johnson, 793 F.Supp.2d 798, 801-02 (W.D. Va. 2011).
The court emphasized the organization's “volunteer” status in its reasoning, including a discussion of public policy considerations if all volunteer groups can become state actors. 993 F.Supp. at 409.
Given the instant fact-intensive issue is presented to the court via the JumpStart Defendants' motion to dismiss and the factual and procedural differences between this case and McGlothlin, the undersigned does not find McGlothlin dispositive and declines to recommend dismissal of these defendants at this early stage of the proceeding. Accordingly, the undersigned recommends the district judge deny JumpStart Defendants' motion to dismiss.
Although not cited by the JumpStart Defendants, this court has held on summary judgment, without further explanation, that a chaplain employed by a private ministry is not a “state actor, ” further holding that even if the court was to find he was, plaintiff failed to state a claim where the chaplain “attests that he had no control over the policies and procedures of the Detention Center with respect to the provision of religious materials or diets, and Plaintiff has provided no evidence, or even argument, to contest Morse's sworn statements that he was not responsible for the alleged deprivations of which he complains.” Walker v. Morse, C/A No. 9:18-3186-DCC-BM, 2019 WL 6120459, at *4 (D.S.C. Oct. 23, 2019), report and recommendation adopted, C/A No. 9:18-03186-DCC, 2019 WL 6118140 (D.S.C. Nov. 18, 2019). Like McGlothlin, and for the same reasons, the court does not find Walker dispositive.
2. Plaintiff's Motion for Default Judgment
Plaintiff has moved for default judgment as to the JumpStart Defendants in their individual capacities, except as to Moore, who personally accepted service of the pleadings on behalf of the JumpStart Defendants and was thereby served in his individual capacity. [See ECF No. 29, ECF No. 33 at 1]. Plaintiff argues default judgment is warranted in that the JumpStart Defendants have “filed their appearance exclusively in their official capacity by their attorney, ” but “have intentionally refused to file an answer to the Complaint or to otherwise plead in their individual capacities.” [ECF No. 29 at 1 (emphasis removed)].
JumpStart argues Plaintiff has failed to properly serve the individual defendants at issue, stating as follows:
Plaintiff attempted to serve the Summons and Complaint on all of the JumpStart Defendants including the individuals, who Plaintiff has included as Defendants in both their official and individual capacities-through hand service on JumpStart's office. Although the propriety of service on anyone other than Moore (who personally received service), JumpStart, and JumpStart's two named executives (Moore and Sanders, in their official capacity) is deficient, JumpStart has accepted service for the organization, its executives, and the individual JumpStart Defendants in their official capacity only, as the claims against the individuals in their official capacity is truly directed at JumpStart as an organization. However, JumpStart has not
accepted service and has no authority to accept service-on behalf of any individual JumpStart Defendants in their individual capacity (other than Moore . . .).[ECF No. 33 at 2].
Plaintiff, in reply, states in part that he “affirms his belief that these defendants are in default, ” but “must also pragmatically acknowledge that the Court may deem the award of so large a sum in compensatory and punitive damages to be inappropriate, ” requesting in the alternative that Plaintiff be allowed to perfect services on these defendants. [ECF No. 34]. In response, the court allowed the JumpStart Defendants to file a surreply to address Plaintiff's request. [ECF No. 35].
In surreply, the JumpStart Defendants argue the court should deny Plaintiff's request in that “there is no basis for Plaintiff's claims against the individual JumpStart Defendants in their individual capacities.” [ECF No. 38 at 1]. In support, the JumpStart Defendants argue, as they argued in their motion to dismiss, that Plaintiff's claims cannot proceed against them “because none of the JumpStart Defendants are state actors under Section 1983 or any other legal framework.” Id. at 2. The undersigned rejects this argument for the same reasons expressed above.
The JumpStart Defendants additionally argue Plaintiff's request should be denied because “the Complaint fails to allege any such individual acted personally in deprivation of Plaintiff's rights”:
There is no allegation in the Complaint establishing a causal link that any individual Defendant took direct, personal action with the intent to discriminate against Plaintiff based on Plaintiff's sex, religion, or any other reason that could even potentially constitute an actionable § 1983 claim. This is particularly true with Defendants Scharff, Sulton, Caldwell, McDowell, Phillips, Fields, Holt, Kiriakides, Urban, and Moore, who comprise the Board of Directors as listed on JumpStart's website . . . (Urban is a former Board Member and no longer listed on the website). For the individuals on the Board of Directors, the only factual allegations relate to Plaintiff allegedly “notifying” them of the actions of Defendants Sanders, Johnson, and Beard.Id. at 3-4.
Liberally construing Plaintiff's complaint, and perhaps as conceded by the JumpStart Defendants above, Plaintiff alleges only that Sanders, Johnson, and Beard were personally involved in the decision to terminate Plaintiff's employment with the program and deny him future employment and housing benefits. As to the other relevant defendants, to assert a viable § 1983 claim against a public official, a causal connection or affirmative link must exist between the public official and his/her conduct. See Iqbal, 556 U.S. at 676 (providing a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution); Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (holding a § 1983 plaintiff must show he suffered a specific injury as a result of specific conduct of a defendant, and an affirmative link between the injury and that conduct); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“In order for an individual to be liable under § 1983, it must be ‘affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights. The doctrine of respondeat superior has no application under this section.'”) (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)); Vinnedge, 550 F.2d at 928 (stating for an individual to be liable under § 1983, it must be affirmatively shown the official charged acted personally in the deprivation of the plaintiff's rights).
Because Plaintiff has failed to allege Scharff, Sulton, Caldwell, McDowell, Phillips, Fields, Holt, Kiriakides, or Urban personally participated in the deprivation of his rights, the undersigned declines to allow perfection of service as to these defendants in their individual capacities. As to Sanders, Johnson, and Beard, while Plaintiff may be entitled to discovery to determine their addresses, such discovery may pose a security risk. Therefore, the court directs the JumpStart Defendants' counsel to email chambers these defendants' last known addresses and to file on the docket a brief filing indicating that the response has been emailed, no later than July 5, 2021. The court will permit service by the USMS on these defendants.
As stated by JumpStart Defendants, Moore has appeared in this case in both his individual and official capacities; thus, the court need not address Plaintiff's allegations as to Moore.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny JumpStart Defendants' motion to dismiss [ECF No. 21] and deny Plaintiff's motion for default judgment [ECF No. 29]. The JumpStart Defendants' counsel is directed to email to chambers the last known address for Sanders, Johnson, and Beard and to file on the docket a brief filing indicating he has so emailed, no later than July 5, 2021.
IT IS SO RECOMMENDED AND ORDERED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).