Opposition Brief — Siegel v. James Island Public Service District

/

No. 93-1472

In The

Supreme Court of the United Stats" oo

October Term, 1993

+

WILBURT A. SEIGEL,

Petitioner,

V.

JAMES ISLAND PUBLIC SERVICE DISTRICT; GEORGE W.

FLYNN; GEORGE W. WITHAM; BARBARA M. LADSON;

SYLVIA F. PETERS; JOHN B. BRYANT; NANCY H.

HADLEY; RAY J. PATTERSON, JR., CONSTITUTING THE

MEMBERSHIP OF THE COMMISSIONERS OF THE JAMES

ISLAND PUBLIC SERVICE DISTRICT; ROBERT E. WELCH,

MANAGER, JAMES ISLAND PUBLIC SERVICE DISTRICT;

EDWIN B. QUINN, WASTEWATER SUPERINTENDENT,

JAMES ISLAND PUBLIC SERVICE DISTRICT; SINKLER &

BOYD, P.A.; THOMAS C. HILDEBRAND, V. CLAIR ALLEN;

STEPHEN E. DARLING; COUNTY OF CHARLESTON;

WILLIAM T. HOWELL, JUDGE; J. ALTON CANNON, JR.,

SHERIFF, CHARLESTON COUNTY; ROBERT MILLER, JR.,

UNDERSHERIFF, CHARLESTON COUNTY; SOUTH

CAROLINA DEPARTMENT OF CORRECTIONS; PARKER

EVATT, COMMISSIONER, SOUTH CAROLINA

DEPARTMENT OF CORRECTIONS; AND

P. DOUGLAS TAYLOR, WARDEN,

LIEBER CORRECTIONAL INSTITUTION,

Respondents

S

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Fourth Circuit

.

BRIEF IN OPPOSITION OF RESPONDENTS,

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS;

PARKER EVATT; AND P. DOUGLAS TAYLOR

@

STEPHEN P. Groves, EsQuiRre

YOUNG, CLEMENT, Rivers & TISDALE

28 Broad Street, P. O. Box 993

Charleston, South Carolina 29402

(803) 577-4000

Attorneys for Respondents, South Carolina

Department of Corrections, Parker Evatt,

and P. Douglas Taylor

(Counsel of Record)

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

- —

———- er ———

QUESTIONS PRESENTED

The Respondents, the South Carolina Department of

Corrections, Parker Evatt, and P. Douglas Taylor, Warden

(collectively “SCDOC”), believe that the only questions

presented, as they relate to them, are properly stated as

follows:

I. Whether the lower courts were correct in

holding that a state agency and its

employees and/or administrators were

immune from liability under 42 U.S.C.

§ 1983 for their actions in this case?

II. Whether the lower courts were correct in

holding that if the Petitioner intended to

state a claim for declaratory/injunctive

relief, that claim was barred as a matter of

law because no case or controversy existed

as the allegedly offending judicial order had

been abated prior to when the Petitioner

instituted this action?

ii

TABLE OF CONTENTS

Page

CREE PENS FIORE? coer ccasecvcevesteravsosi i

SARs Ge CAPER OE 4 06 bo 0s bina cones iewaseands ii

SRB UO AU FEIA Ne ee as hwvenswnaestiedaneses iv

OPINIONS AND JUDGMENTS BELOW ............ 2

pa ot wey rr Peer rrr rye errr ry ey 3

STATUTORY PROVISIONS INVOLVEDU............. 4

SEPT eees COP Theme Glee a Ako enon vesescieseres 4

SUMMARY OF THE ARGUMENT ................. Ff

Pek rrr errs ee er re Ter rE eee rT ye 8

I. THE RESPONDENTS, SOUTH CAROLINA

DEPARTMENT OF CORRECTIONS, PARKER

EVATT, AND DOUGLAS P. TAYLOR, ARE

STATE AGENCIES AND STATE OFFICIALS,

RESPECTIVELY, AND, THEREFORE, CAN-

NOT BE SUED PURSUANT TO 42 U.S.C.

ye ee ae .

Il. THE PETITIONER’S COMPLAINT FAILED TO

STATE ANY FACTS TO SUPPORT A CLAIM

THAT THE SOUTH CAROLINA DEPART-

MENT OF CORRECTIONS ACTIVELY

CAUSED ANY DEPRIVATION OF THE PETI-

TIONER’S CONSTITUTIONAL RIGHTS...... 11

Ill. THE PETITIONER’S COMPLAINT FAILED TO

STATE ANY FACTS TO SUPPORT A CLAIM

THAT EITHER COMMISSIONER EVATT OR

WARDEN TAYLOR ACTIVELY CAUSED A

DEPRIVATION OF THE PETITIONER’S CON-

Pape isg BF oe. ed re ere 12

'

i

;

:

:

?

a

TABLE OF CONTENTS - Continued

Page

[V. IF THE PETITIONER INTENDED TO STATE A

CLAIM FOR DECLARATORY OR INJUNC-

TIVE RELIEF, SUCH CLAIM WAS BARRED

BECAUSE NO CASE OR CONTROVERSY

EXISTED SINCE JUDGE HOWELL HAD PRE-

VIOUSLY ABATED THE ORDER OF INCAR-

Ae a des ve cas secre 5 et8 14

ee a cece un ve eneccics 16

iv

TABLE OF AUTHORITIES

Page

CASES

Abele v. Markle, 452 F.2d 1121 (2nd Cir. 1971)........ 15

Adams v. Pate, 445 F.2d 105 (7th Cir. 1971) .......... 13

Bailey v. Ohio State University, 487 F. Supp. 601

SE GY MN ids ws uv baebaeoescuseaes ewekabn-s 10

Bennett v. Gravelle, 323 F. Supp. 203 (D.Md.},

affirmed, 451 F.2d 1011 (4th Cir. 1971)............. 13

Brandon v. Holt, 469 U.S. 464 (1985)............... 9, 10

Childs v. Pegelon, 321 F.2d 487 (4th Cir. 1963)........ 16

City of Los Angeles v. Lyons, 461 U.S. 95 (1984) ...... 15

Ex Fare Yous, BOP UD. Uae CEP O oie sis becscsisese. 14

Ford Motor Co. v. Department of Treasury, 323 U.S.

Cee CSc coud ieee cua hkascawes indee ca eke kes 9

Fowler v. Alexander, 478 F.2d 694 (4th Cir. 1973) ..... 15

Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231

CRs 69 Hab HEV STR e vious cee eea eee keh iteiesnduens 3

Golden v. Zwickler, 394 U.S. 103 (1969)............... 15

Gourdine v. Ellis, 435 F. Supp. 882 (D.S.C. 1977) ..... 10

Haskins v. United States, 292 F.2d 265 (4th Cir. 1961) .... 16

Henson v. Welch, 199 F.2d 367 (4th Cir. 1952)........ 16

linois v. Gates, 462 US. 213 (1963) .... eee cccceee 3

In Re Justices of Supreme Court of Puerto Rico, 695

eae BF GONE ey CE Sib tne peedecencbnebcertenees 15

Vv

TABLE OF AUTHORITIES — Continued

Page

Jacobs v. College of William & Mary, 495 F. Supp. 183

(E.D. Va. 1980), affirmed, 662 F.2d 922 (4th Cir.

1981), cert. denied, 454 U.S. 1033 (1982)............ 10

James Island Public Service District v. Wilburt A.

Seigel (Civil Action No. 84-CP-10-3476, Char-

leston County Court of Common Pleas)............ 5

James Island Public Service District v. Wilburt A.

Seigel (S.C. Ct. App. Memo. Op. No. 87-MO-023,

ee eee Se Tr seis ak ka ey ek eee ee dee dai 5

Jane Doe v. Seurynck, 473 F. Supp. 860 (D.S.C. 1978) .... 13

Jennings v. Davis, 476 F.2d 127 (8th Cir. 1973) ....... 13

Kompara v. Board of Regents, 548 F. Supp. 537 (M.D.

A OES 5 89.5 oad ea es eee 11

Mitchell v. Hendricks, 431 F. Supp. 1215 (E.D. Pa.

Sk PER ETEL TEES TCT EE OE EST Peer e ee a meer e 13

Monell v. Department of Social Services, 436 U.S. 658

Pe Teer Cee ey rer ere er ere re 8, 9, 11

Monree v. Pape, 365 US. 167 (1961). «0.000 eccceccese. 13

Moremo v. University of Maryland, 645 F.2d 217 (4th

Cir. 1981), affirmed, 458 U.S. 1 (1982)............... 9

Moreno v. University of Maryland, 420 F. Supp. 541

(D. Md. 1976), affirmed without opinion, 556 F.2d

FER GOON Ce BOR Bens bebe dase t oie uk dee bane ees 11

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...... 16

Oklahoma City v. Tuttle, 471 U.S. 808 (1985).......... 11

Papasan v. Allain, 478 U.S. 265 (1986)................ 13

Pennhurst State School & Hospital v. Holderman, 465

ae We COO 5s Se vo beens caries eee 8

vi

TABLE OF AUTHORITIES - Continued

Page

\ Polk County v. Dodson, 454 U.S. 312 (1981).........-. 1

Pure Oil Co. v. Suarez, 384 U.S. 202 (1966)............ 3

Quern v. Jordan, 440 U.S. 332 (1979)............... 9, 10

Rizzo v. Goode, 423 U.S. 362 (1976) ........ccccees ioe Be

Seigel v. James Island Public Service District, et al.,

No. 92-1204 (4th Cir. Nov. 10, 1992) ............... 2

Talliafero v. State Council of Higher Education, 372 F.

Ae Bs BR | ere oe rer er ee 11

Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977)....... 13

Waterman, S.S. Corp. v. United States, 381 U.S. 252

SOEs 9.6.45 +5009 pe vee enh he ahead soaks leony SRMIOre ts 3

Welch v. Texas Dept. of Highway & Public Transporta-

Fe Se Sr Ge CAWEND vn. neces eeietveseckepeeusnss 8

Will v. Michigan Dept. of State Police, 491 U.S. 58

Ds Fa i'o00 0000s oR Vea eeGuee cree eseuuaaoereane 9, 10

STATUTES AND RULEs

S.C. Code Ann. § 1-30-10 (Supp. 1993)............... 10

oA. CORD Amn. & 261-20 (IGG) «wo ccc cccsveveveceess 10

il Ge Pe | BOBO CIGD co vac ccvcsvevacecete’ 10

S.C. Code Ann. § 24-1-40 (Supp. 1993)............... 10

S.C. Code Ann. § 24-1-100 (1989) .................... 10

eee, COE AOR. © Bhd 150 TEGGED ov ccs ceccscwvewcecvs 10

a. Come Ann. § 263-10 (1909) «55s vcevevevecccess 12

EO ee a aT rT Te

Vii

TABLE OF AUTHORITIES - Continued

Page

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No. 93-1472

S

In The

\ Supreme Court of the United States

October Term, 1993

+

WILBURT A. SEIGEL,

Petitioner,

JAMES ISLAND PUBLIC SERVICE DISTRICT; GEORGE W.

FLYNN; GEORGE W. WITHAM; BARBARA M. LADSON;

SYLVIA F. PETERS; JOHN B. BRYANT; NANCY H.

HADLEY; RAY J. PATTERSON, JR., CONSTITUTING THE

MEMBERSHIP OF THE COMMISSIONERS OF THE JAMES

ISLAND PUBLIC SERVICE DISTRICT; ROBERT E. WELCH,

MANAGER, JAMES ISLAND PUBLIC SERVICE DISTRICT;

EDWIN B. QUINN, WASTEWATER SUPERINTENDENT,

JAMES ISLAND PUBLIC SERVICE DISTRICT; SINKLER &

BOYD, P.A.; THOMAS C. HILDEBRAND, V. CLAIR ALLEN;

STEPHEN E. DARLING; COUNTY OF CHARLESTON;

WILLIAM T. HOWELL, JUDGE; J. ALTON CANNON, JR.,

SHERIFF, CHARLESTON COUNTY; ROBERT MILLER, JR.,

UNDERSHERIFF, CHARLESTON COUNTY; SOUTH

CAROLINA DEPARTMENT OF CORRECTIONS; PARKER

EVATT, COMMISSIONER, SOUTH CAROLINA

DEPARTMENT OF CORRECTIONS; AND

P. DOUGLAS TAYLOR, WARDEN,

LIEBER CORRECTIONAL INSTITUTION,

Respondents.

+

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Fourth Circuit

+

BRIEF IN OPPOSITION OF RESPONDENTS,

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS;

PARKER EVATT; AND P. DOUGLAS TAYLOR

S

The Respondents, South Carolina Department of Cor-

rections; Parker Evatt, Commissioner, South Carolina

Department of Corrections; and P. Douglas Taylor, War-

den, Lieber Correctional Institution, respectfully request

that the Court deny the Petition for a Writ of Certiorari of

the Petitioner, Wilburt A. Seigel.

S

OPINIONS AND JUDGMENTS BELOW

The United States Court of Appeals for the Fourth

Circuit, on November 10, 1993, affirmed the Order dis-

missing the Petitioner's Complaint issued by the United

States District Court for the District of South Carolina,

Charleston Division, on January 10, 1992.

The Opinion of the United States Court of Appeals

for the Fourth Circuit is an unpublished, per curiam opin-

ion, Seigel v. James Island Public Service District, et al., No.

92-1204 (4th Cir. Nov. 10, 1992), and is found in Appendix

A of Petitioner’s Petition for Writ of Certiorari, at pages

1-A through 3-A.

The Order of the District Court is not separately

published, but has been set out in Appendix B of Peti-

tioner’s Petition for Writ of Certiorari, at pages 6-A

through 9-A. The District Court adopted, as its Order, the

Report and Recommendation of the United States Magis-

trate Judge which had been rendered on August 5, 1991.

That Report and Recommendation is found in Appendix

C of Petitioner’s Petition for Writ of Certiorari, at pages

10-A through 47-A.

The Petitioner’s Petition for kehearing was denied by

the Fourth Circuit on December 16, 1993. The Order

denying the Petition for Rehearing is found in Appendix

A to Petitioner’s Petition for Writ of Cei iorari, at page

4-A.

JURISDICTION

Petitioner cites as his jurisdictional basis 28 U.S.C.

§ 1257(3). A review of that statute indicates that no such

subsection exists. In addition, 28 Li.S.C. § 1257 does not

apply to this case, since the per curiam unpublished opin-

ion below was rendered by a federal court of appeals, not

a state court. See, Illinois v. Gates, 462 U.S. 213, 217-221

(1983).

Presumably, Petitioner means to rely on 28 U.S.C.

§ 1254(1) to provide his jurisdictional basis. This case,

however, does not present any special or important rea-

son warranting this Court to grant certiorari. Sup. Ct. R.

10. Specifically, the decision of the United States Court of

Appeals for the Fourth Circuit herein does not conflict

with either the decision of another United States Court of

Appeals, Waterman, S.S. Corp. v. United States, 381 U.S.

252 (1965), or with the decisions of this Court. Pure Oil

Co. v. Suarez, 384 U.S. 202 (1966). In addition, the decision

below does not decide an important question of federal

law which has not been, but should be, settled by this

Court. Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231

(1959). Moreover, the decisions of the lower courts do not

depart from, or sanction a departure from, the accepted

and usual course of judicial proceedings. The Court

should deny the Petition for Writ of Certiorari filed by the

Petitioner.

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1983, which provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

S

STATEMENT OF THE CASE

This pro se civil rights action came before the District

Court on the collective Rule 12(b)(6), FRCP, Motion to

Dismiss of the Respondents, South Carolina Department

of Corrections, Parker Evatt, and P. Douglas Taylor. The

Petitioner’s action against the SCDOC arose out of his

incarceration at Lieber Correctional Institution (“Lieber” )

on January 11, 1989, pursuant to the Order of the Respon-

dent, the Honorable William T. Howell (“Judge Howell”).

The SCDOC’s motion to dismiss was principally based on

the Petitioner’s failure to state a claim upon which relief

could be granted.

In 1984, the Respondent, James Island Public Service

District (“JIPSD”), instituted a suit against the Petitioner

in the Charleston County Court of Common Pleas.!

The JIPSD sought and was granted an injunction

requiring the Petitioner to connect to its municipal sewer

system. The South Carolina Court of Appeals affirmed an

Order granting the injunction on March 25, 1987.2 Judg-

ment was entered against the Petitioner on that date.

Subsequently, in 1988, the JIPSD filed a Rule to Show

Cause Why an Order should not be issued finding the

Petitioner in contempt of court for his failure to comply

with the March 25, 1987, Order of Judgment. On October

26, 1988, Judge Howell found the Petitioner in contempt

of Court for his voluntary failure to comply with the

March 25, 1987, Order. Judge Howell sentenced the Peti-

tioner to six (6) months in jail, but granted him a sixty

(60) day grace period to hook up to the JIPSD’s sewer

system to avoid incarceration. The Petitioner filed a peti-

tion with the South Carolina Supreme Court for a Writ of

Supersedeas to Stay Judge Howell’s contempt sentence.

The Supreme Court denied the Petition on December 16,

1988.

The Petitioner voluntarily chose not to comply with

the contempt order by hooking up to the sewer system.

On January 6, 1989, Judge Howell ordered the Petitioner

1! See, James Island Public Service District v. Wilburt A. Seigel

(Civil Action No. 84-CP-10-3476, Charleston County Court of

Common Pleas) (“JIPSD v. Seigel”).

2 See, James Island Public Service District v. Wilburt A. Seigel

(S.C. Ct. App. Memo. Op. No. 87-MO-023, filed March 9, 1987).

to begin serving his contempt sentence on January 11,

1989. The Respondent, J. Alton Cannon, Sheriff of Char-

leston County, transported the Petitioner to Lieber and

relinquished custody to the SCDOC. The Petitioner

served only one (1) night at Lieber before he was

released. He was in the SCDOC’s custody for only that

short time. Thereafter, on February 16, 1989, Judge How-

ell modified the sentence, substituting a monetary fine in

lieu of incarceration.

On January 3, 1991, the Petitioner filed this action

alleging, inter alia, violation of 42 U.S.C. § 1983. Among

the Defendants named in this action were the SCDOC,

Evatt, and Taylor. They, as well as, all other Respondents,

filed Motions to Dismiss pursuant to Rule 12(b), FRCP.

After the Petitioner responded to the Respondents’

respective motions, the United States Magistrate Judge

conducted a hearing on March 0, 1991. During that

hearing the parties agreed that the Magistrate Judge

would decide the Respondents’ motions solely on the

motion papers, exhibits, and legal memoranda without

resort to oral arguments.

The Magistrate Judge issued his written Report and

Recommendation on August 5, 1991, granting all of the

Respondents’ motions. The Petitioner timely filed objec-

tions to the Magistrate Judge’s Report. See 28 U.S.C.

§ 636(b)(1)(C). The case was heard de novo by the United

States District Court Judge who, by order dated January

10, 1992, adopted the Magistrate Judge’s Report and Rec-

ommendation as the Order of the District Court.

The Petitioner timely appealed the District Court's

Order to the United States Court of Appeals for the

Fourth Circuit. The Court of Appeals affirmed the District

Court’s Order in an unpublished per curiam opinion ren-

dered on November 10, 1993. The Petitioner filed a Peti-

tion for Rehearing which the Fourth Circuit denied on

December 16, 1993. The Petitioner now seeks a Writ of

Certiorari to review the decisions below which dismissed

his action against all of the Respondents, including the

SCDOC, Evatt, and Taylor.

SUMMARY OF THE ARGUMENT

These Respondents are a state agency and its officials

which are immune from liability under 42 U.S.C. § 1983.

The lower courts properly found that the Petitioner's

Complaint failed to allege that any custom or policy by

the SCDOC which deprived the Petitioner of his constitu-

tional rights. In addition, there was no allegation of any

act or omission by Respondents Evatt or Taylor sufficient

to state a 42 U.S.C. § 1983 claim. Finally, even if the

Petitioner had articulated a request for declaratory or

equitable relief, those issues were moot because Judge

Howell had abated the order of incarceration and no case

nor controversy existed for adjudication.

+

ARGUMENT

|. THE RESPONDENTS, SOUTH CAROLINA

DEPARTMENT OF CORRECTIONS, PARKER

EVATT, AND DOUGLAS P. TAYLOR, ARE STATE

AGENCIES AND STATE OFFICIALS, RESPEC-

TIVELY, AND, TNEREFORE, CANNOT BE SUED

PURSUANT TO 42 U.S.C. § 1983.

It is undisputed that the SCDOC is a State agency

and Evatt and Taylor, its officers, are State officials. The

SCDOC and its officials were specifically excluded from

suit pursuant to 42 U.S.C. § 1983. The claims were barred

on two separate and distinct grounds: (¢. ‘hb: Eleventh

Amendment bars suits against state agercres or their

oftticials; and (2) state agencies and state officials acting in

their official capacities are not “persons” within the scope

of 42 U.S.C. § 1983.

Section 1 of the Civil Rights Act of 1871, 42 U.S.C.

§ 1983, was passed pursuant to § 5 of the Fourteenth

Amendment. It was originally part of a bill designed to

curtail Ku Klux Klan violence in the South. See, Monell v.

Department of Social Services, 436 U.S. 658 (1978). The

statute provides a federal cause of action to plaintiffs who

have been deprived of their constitutional right by “any

person” under color of state law. Id.

The Eleventh Amendment bars suits against a state

or its agencies, unless the state has waived its immunity,

Welch v. Texas Dept. of Highway & Public Transportation, 483

U.S. 468 (1987) (plurality opinion), or unless Congress,

pursuant to § 5 of the Fourteenth Amendment, has over-

ridden that immunity. See also, Pennhurst State School &

Hospital v. Holderman, 465 U.S. 89 (1984); Moremo v. Uni

versity of Maryland, 645 F.2d 217 (4th Cir. 1981), affirmed,

458 U.S. 1 (1982).

In 1979, this Court held that Congress, in passing 42

LLS.C. §& 1983, had no intention of disturbing a state’s

Eleventh Amendment immunity. Quern v. Jordan, 440 U.S.

332 (1979). The Court reasoned that a claim which might

impose a liability to be paid from public funds in a state’s

registry was barred by the Eleventh Amendment.

Reviewing the legislative history behind the Civil Rights

Act of 1871, the Court held that there was no logic war

ranting “the conclusion that Congress intended, by the

general language of the Act, to overturn the constitu

tionally guaranteed immunity of the states.” Id., 440 U.S

332, 341

In 1989, this Court, in Will v. Michigan Dept. of State

Police, 491 U.S. 58 (1989), specifically ruled that neither a

state nor its officials acting in their official capacities are

“persons” under 42 U.S.C. § 1983. Will, 491 U.S. 58, 71.

The Will Court also held that, while state officials literally

are “persons” in a literal case, 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

Id., 491 U.S. 58, 71.° A lawsuit against a governmental

3 See, Brandon v. Holt, 469 U.S. 464, 471 (1985). Official

capacity suits “generally represent only another way of

pleading an action against an entity of which an officer is an

agent.” Moneil, 436 U.S. 658, 690 n. 55; Ford Motor Co

Department of Treasury, 323 U.S. 459 (1945) (“When the action is,

in essence, one for the recovery of money from the state, the

state is the real, substantial party in interest and is entitled to

10

official, acting in his or her official capacity, is, in all

respects other than name, to be treated as a suit against

the entity. Brandon, 469 U.S. 464, 471-472.

It was undisputed that the SCDOC was created pur-

suant to S.C. Code Ann. § 24-1-30 (1989). That statute

provides that the SCDOC is an administrative agency of

the government of the State of South Carolina. Id. The

statute further provides that the SCDOC’s primary func-

tion is to implement and carry out the policy of the State

with respect to its prison system. Id. See also, S.C. Code

Ann. § 24-1-20 (1989). It is also undisputed that Respon-

dents Evatt and Taylor, as the Commissioner* and War-

den, respectively, were State officials. See S.C. Code Ann.

§§ 24-1-100, 110 (1989). Therefore, while acting in their

official capacities, they were in effect, alter egos of the

State of South Carolina. The Petitioner’s 42 U.S.C. § 1983

claims against the SCDOC were barred.° Will, 491 U.S. 58,

71.

invoke its sovereign immunity from suit, even though

individual officials are nominal defendants”).

+ In 1993 the South Carolina Legislature partially reor-

ganized South Carolina state government. See, S.C. Code Ann.

§ 1-30-10 et seq. (Supp. 1993). The Office of the Commissioner of

the SCDOC was abolished and the Office of the Director of the

SCDOC was created. S.C. Code Ann. § 24-1-40 (Supp. 1993).

> See generally, Gourdine v. Ellis, 435 F. Supp. 882 (D.S.C.

1977). Jacobs v. College of William & Mary, 495 F. Supp. 183 (E.D.

Va. 1980), affirmed, 662 F.2d 922 (4th Cir. 1981), cert. denied, 454

U.S. 1033 (1982) (the Court held in a sex discrimination action

against a state university that it need not reach the question of

whether the university, as a state agency, was a “person” within

the meaning of 42 U.S.C. § 1983, but noted that it appeared that

this Court’s decision in Quern effectively closed application of

42 U.S.C. § 1983 to the states and their agencies). Bailey v. Ohio

11

Il. THE PETITIONER’S COMPLAINT FAILED TO

STATE ANY FACTS TO SUPPORT A CLAIM THAT

THE SOUTH CAROLINA DEPARTMENT OF

CORRECTIONS ACTIVELY CAUSED ANY DEPRI-

VATION OF THE PETITIONER’S CONSTITU-

TIONAL RIGHTS.

The Petitioner’s Complaint was devoid of any facts

sufficient to state a claim against the SCDOC. In order to

establish a governmental entity’s liability under 42 U.S.C.

§ 1983, the Petitioner was required to establish that the

entity at issue is a “moving force behind the depriva-

tion.” Polk County v. Dodson, 454 U.S. 312, 326 (1981)

(quoting Monell, 436 U.S. 658, 694). Consequently, the

entity's “policy or custom” must have played a part in

the violation of federal law. Oklahoma City v. Tuttle, 471

U.S. 808, 817-818 (1985).

As this Court stated in Monell:

[A] local government may not be sued under [42

U.S.C.] § 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when execu-

tion of a government’s policy or custom,

whether made by it or by those whose edicts or

State University, 487 F. Supp. 601 (S.D. Ohio 1980) (holding that a

state university in Ohio was not a “person” subject to suit under

42 U.S.C. § 1983); Moreno v. University of Maryland, 420 F. Supp.

541 (D. Md. 1976), affirmed without opinion, 556 F.2d 573 (4th Cir.

1977); Talliafero v. State Council of Higher Education, 372 F. Supp.

1378 (E.D. Va. 1974); Kompara v. Board of Regents, 548 F. Supp. 537

(M.D. Tenn. 1982) (the Court reasoned that although Congress

could have included states within the definition of “person” in

§ 1983, if it had so chosen, such an interpretation of the statute

was nevertheless precluded by this Court’s decision in Quern).

12

acts may fairly be said to represent official pol-

icy, inflicts the injury that the government, as an

entity, is responsible under [42 U.S.C.] § 1983.

Id., 436 U.S. 658, 694.

The Petitioner failed to allege improper policy or

custom maintained by the SCDOC. The only allegations

that concerned SCDOC, at all, were actually allegations

about unnamed jail officials who transported the Peti-

tioner from Lieber back to the Charleston County Jail and

into the custody of the Charleston County Sheriff's

Department. The lower courts properly dismissed the

Petitioner's Complaint since it patently failed to state a

claim against the SCDOC.

Il. THE PETITIONER’S COMPLAINT FAILED TO

STATE ANY FACTS TO SUPPORT A CLAIM

THAT EITHER COMMISSIONER EVATT OR

WARDEN TAYLOR ACTIVELY CAUSED A

DEPRIVATION OF THE PETITIONER’S CONSTI-

TUTIONAL RIGHTS.

The only facts in the Petitioner’s Complaint alleged

against Respondents Evatt and Taylor were found in

Paragraph 5 which provided:

Defendant [SCDOC] operates under [S.C. Code

Ann.]| § 24-3-10, etc. [(1989)], where it is stated

that the Board of Corrections shall designate

place of confinement. The [SCDOC] is under

Commissioner Parker Evatt who is in charge of

the Lieber Correctional Institute, which is under

the supervision of Warden P. Douglas Taylor

where [Petitioner] was wrongfully incarcerated

in a maximum security cell on January 11, 1989.

13

Id. The Complaint was otherwise devoid of any allega-

tions concerning either Respondent Evatt or Taylor. There

were no allegations that either official caused the events

leading to the Petitioner's alleged constitutional depriva-

tion of rights. Personal action is required to hold a defen-

dant liable under 42 U.S.C. § 1983. Monroe v. Pape, 365

U.S. 167 (1961).

Federal courts have repeatedly held, in essence, that:

It is necessary to establish personal knowledge

or involvement, the personal ordering of a sub-

ordinate to do acts, an actual knowledge of the

acts of subordinates, and acquiescence therein if

liability of a superior in a civil rights action is to

be found.

Jane Doe v. Seurynck, 473 F. Supp. 860, 863 (D.S.C. 1978)

(citing Mitchell v. Hendricks, 431 F. Supp. 1215 (E.D. Pa.

1977)). Moreover, the Fourth Circuit has held, in Vinnedge

v. Gibbs, 550 F.2d 926 (4th Cir. 1977):

Liability will only lie [under 42 USC § 1983]

where it is affirmatively shown that the official

charged acted personally in the deprivation of

the Appellant’s rights. The doctrine of respondeat

superior has no application under this action.

Id. (citing Bennett v. Gravelle, 323 F. Supp. 203, 214

(D.Md.), affirmed, 451 F.2d 1011 (4th Cir. 1971)). See also,

Rizzo v. Goode, 423 U.S. 362 (1976); accord, Jennings v.

Davis, 476 F.2d 127 (8th Cir. 1973); Adams v. Pate, 445 F.2d

105 (7th Cir. 1971).

The Petitioner’s Compiaii.t contained no allegations

that either Respondent Evatt or Taylor had personal

involvement in the alleged deprivation of his rights.

14

Moreover, there was no basis in the Complaint for such

an inference. The Petitioner failed to state a claim upon

which relief can be granted pursuant to 42 U.S.C. § 1983

and the lower courts properly dismissed his action.

IV. IF THE PETITIONER INTENDED TO STATE A

CLAIM FOR DECLARATORY OR INJUNCTIVE

RELIEF, SUCH CLAIM WAS BARRED BECAUSE

NO CASE OR CONTROVERSY EXISTED SINCE

JUDGE HOWELL HAD PREVIOUSLY ABATED

THE ORDER OF INCARCERATION.

Eleventh Amendment immunity does not necessarily

extend to a 42 U.S.C. § 1983 action for declaratory /

injunctive relief. Papasan v. Allain, 478 U.S. 265 (1986); Ex

Parte Young, 209 U.S. 123 (1908). Given the liberality with

which the Petitioner’s pro se Complaint must be reviewed

by the lower courts on a motion to dismiss, the Com-

plaint could have arguably been broadly interpreted to

request declaratory/injunctive relief.

Even if the Petitioner’s Complaint could be inter-

preted to have sought declaratory/injunctive relief the

Petitioner, nonetheless, lacked standing to present the

request, and the lower courts lacked jurisdiction to hear

the Petitioner’s claim. Standing is a jurisdictional issue,

as opposed to a procedural one. The judicial power of the

federal courts is constitutionally limited to the adjudica-

tion of “cases” or “controversies.” U.S. Const. art. III, § 2.

The existence of a case or controversy

‘depends upon whether the person seeking

relief has alleged a sufficient personal stake in

the outcome to assure that the Court will be

15

called upon to resolve real issues between genu-

ine adversaries rather than merely to give advi-

sory opinions with respect to abstract or

theoretical questions.’

Fowler v. Alexander, 478 F.2d 694, 696 (4th Cir. 1973) (quot-

ing Abele v. Markle, 452 F.2d 1121, 1124 (2nd Cir. 1971)).

As the Petitioner’s Complaint plainly indicated, the

Petitioner was no longer in jail nor was the Order of

Incarceration still in effect at the time he filed this action.

The Petitioner was not entitled to declaratory or injunc-

tive relief. He was unable to show that he was in real,

immediate danger of sustaining some direct injury as a

result of the challenged official conduct. Abstract injury

is not enough. The injury, or threat of injury, must be

“real and immediate”, not “conjectural or hypothetical.”

City of Los Angeles v. Lyons, 461 U.S. 95 (1984); Rizzo, 423

U.S. 362 561; Golden v. Zwickler, 394 U.S. 103 (1969); In Re

Justices of Supreme Court of Puerto Rico, 695 F.2d 17 (1st Cir.

1982).

It was unclear why or how a specific procedure, or

the lack of a procedure, to specify the location of incarcer-

ation could have been harmful to the Petitioner. Since the

allegedly offending order had been abated, the Petitioner

did not face any real or immediate threat of incarceration.

The Petitioner was, likewise, under no present threat of

transportation to a place of incarceration. The likelihood

that he would be incarcerated in the future was remote

and speculative in the extreme. Even if litigation was to

be initiated again between the Petitioner and the JIPSD,

there was no reason to assume that the Petitioner would

be found in contempt of court. There was also no reason

to assume that if he was found in contempt of court, there

16

would be the sentence of incarceration as opposed to a

monetary fine.

Furthermore, it is a well established rule that unless

exceptional circumstances exist, internal matters in state

penitentiaries are the sole concern of the states, and fed-

eral courts should not inquire concerning them. O’Lone v.

Estate of Shabazz, 482 U.S. 342 (1987); Childs v. Pegelon, 321

F.2d 487 (4th Cir 1963); Haskins v. United States, 292 F.2d

265 (4th Cir. 1961); Henson v. Welch, 199 F.2d 367 (4th Cir.

1952). The Petitioner did not present any exceptional

circumstances which would be sufficient to justify judi-

cial intervention in this case.

CONCLUSION

The Respondents, South Carolina Department of Cor-

rections, Commissioner Evatt, and Warden Taylor, as a

state agency and state officials, respectively, were

immune from liability under 42 U.S.C. § 1983. Further-

more, the lower courts properly found that the Peti-

tioner’s Complaint failed to allege that any custom or

policy by the SCDOC which deprived the Petitioner of his

constitutional rights. In addition, the Petitioner did not

allege any act or omission by Respondents Evatt or Taylor

sufficient to state a 42 U.S.C. § 1983 claim. Finally, even if

the Petitioner had articulated a request for declaratory or

equitable relief, those issues were moot because Judge

Howell had abated the order of incarceration and no case

nor controversy existed for adjudication. The lower

courts properly dismissed the Petitioner’s Complaint.

Consequently, these Respondents respectfully request

17

that the Court deny the Petition for Writ of Certiorari

filed by the Petitioner.

Respectfully submitted,

STEPHEN P. Groves

YOUNG, CLEMENT, Rivers & TIspatt

28 Broad Street (P. O. Box 993)

Charleston, South Carolina 29402

(803) 577-4000

Attorneys for the Respondents

South Carolina Department of

Corrections; Parker Evatt;

and P. Douglas Taylor

(Counsel of Record)

Dated: April 13, 1994