United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS JUDGE
pro se Complaint is before the Court on Defendant’s
motion to dismiss for failure to serve process, lack of
subject matter jurisdiction, Eleventh Amendment immunity, and
failure to state a claim upon which relief can be granted.
[Dkt. 6.] For the reasons described below, the Court will
grant the motion to dismiss due to Defendant’s immunity
under the Eleventh Amendment of the U.S. Constitution.
April 18, 2014, the Commonwealth of Virginia Department of
Social Services, Division of Child Support Enforcement
(“DCSE”) issued an administrative support order
to Plaintiff Terry Parks (“Plaintiff” or
“Parks”). (See Def.’s Ex. 1 [Dkt.
6-3].) The order obligated Parks to pay
approximately $500 a month to Rolanda Green to support their
young daughter. (Id. at 1.) Rolanda is the custodial
parent and is not a party to this lawsuit. Parks paid his
support dutifully for approximately nine months before
falling into arrears. (See Def.’s Ex. 2 [Dkt.
6-4] at 2.) He paid off the arrears and interest
over the next five months, only to again fall into arrears in
March 2016. (Id.) As of June 15, 2016, Parks owed
$6, 330 in arrears and interest on his child support
payments. (Id. at 1.)
contends that his child support payments result in Green
“receiving a huge financial windfall, or profit in
excess of child costs” and leave him “in
poverty” and with “less income than needed for
basic living needs.” (Compl. ¶¶ 31, 32.) The
financial burden of the payments forces Parks to “work
extra jobs.” (Compl. ¶¶ 32, 34.)
Additionally, the payments allegedly are not in the best
interest of the child because they exceed the costs of caring
for the child. (Compl. ¶ 31.)
proceeding pro se, filed this Complaint pursuant to 42 U.S.C.
§ 1983, alleging that the foregoing facts demonstrate
DCSE violated his constitutional, statutory, and biblical
rights, including: Article 1, Sections 1, 2, 6, and 23 of the
Virginia Constitution; the Fourth Amendment of the U.S.
Constitution’s Unreasonable Seizures Clause; the Fifth
Amendment’s Due Process Clause; the Fifth
Amendment’s Takings Clause; the Fourteenth
Amendment’s Equal Protection Clause; Substantive Due
Process under the Fourteenth Amendment; Revelation
13:16’s discussion of the “Mark of the
Beast”; and 42 U.S.C. § 408(a)(8)’s
criminalization of social security fraud. As a remedy, Parks
seeks damages of $500, 000 from DCSE. (Compl. ¶
15, 2016, DCSE moved to dismiss the Complaint for improper
service of process, lack of subject matter jurisdiction,
Eleventh Amendment immunity, and failure to state a claim
upon which relief can be granted. Parks responded to the
motion to dismiss on June 28, 2016. Thereafter, DCSE timely
waived any oral argument on this motion. Parks has not moved
for an oral argument or objected to Defendant’s waiver
of oral argument. Accordingly, the Court will exercise its
authority under Local Civil Rule 7(J) to rule upon this
motion with an oral hearing. This motion is now ripe for
Standard of Review
moves to dismiss this case pursuant to its immunity under the
Eleventh Amendment. The Fourth Circuit has not clarified
“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).” See Andrews v.
Daw, 201 F.3d 521, 524 n.2 (4th Cir. 2000).
“Although subject matter jurisdiction and sovereign
immunity do not coincide perfectly, there is a recent trend
among the district courts within the Fourth Circuit to
consider sovereign immunity under Rule 12(b)(1).”
Trantham v. Henry Cty. Sheriff’s Office, No.
4:10-cv-00058, 2011 WL 863498, at *3 (W.D. Va. Mar. 10, 2011)
(citing cases); Coleman v. Md. Ct. of Appeals, 626
F.3d 187, 190-94 (4th Cir. 2010) (affirming dismissal
pursuant to 12(b)(1) due to Eleventh Amendment immunity).
Therefore, the court will consider this motion on Eleventh
Amendment grounds pursuant to Rule 12(b)(1). A defendant
asserting its state sovereign immunity from suit bears the
burden of demonstrating its entitlement to that immunity.
Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543 (4th Cir.
also moves to dismiss this case for failure to state a claim
upon which relief can be granted pursuant to Rule 12(b)(6).
When reviewing this motion, the Court “must accept as
true all of the factual allegations contained in the
complaint, ” and draw “all reasonable
inferences” in the plaintiff’s favor.
E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted). The court does not, however, assume the
veracity of “labels and conclusions, ”
Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009), or
legal conclusions drawn from the facts alleged, Adcock v.
Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008).
initial matter, the Court notes that this § 1983 case
arises under the Court’s federal question jurisdiction,
pursuant to 28 U.S.C. § 1331. Contrary to
Defendant’s argument, the “Domestic Relations
Exception” does not divest this Court of jurisdiction.
Courts construe that doctrine to limit a federal
court’s authority in cases involving decrees of
divorce, alimony, or child support. See Ankenbrandt v.
Richards, 504 U.S. 689, 704 (1992). It is well
recognized, however, that “the domestic relations
exception ‘is applied only as a judicially implied
limitation on the diversity jurisdiction; it has no generally
recognized application as a limitation on federal question
jurisdiction.’” Reale v. Wake Cty. Human
Servs., 480 F. App’x 195, 197 (4th Cir. 2012)
(quoting United States v. Johnson, 114 F.3d 476, 481
(4th Cir. 1997)). Thus, the Domestic Relations Exception does
not affect jurisdiction over this case arising under the
federal law of 42 U.S.C. § 1983. See id.; Kanode v.
Swope, No. 1:09-cv-1530, 2012 WL 4508138, at *7 (S.D.
W.Va. Sept. 28, 2012); Briggman v. Va. Dept. of Social
Servs., Div. of Child Support Enforcement, 526 F.Supp.2d
590, 598 (W.D. Va. 2007).
reasons described below, the Court finds that Defendant is
immune from suit due to the Eleventh Amendment of the U.S.
Constitution. Accordingly, the Court will dismiss
this case without prejudice. Even if Defendant was not
immune, the Court would dismiss this case because Defendant
is not a “person” within the meaning of 42 U.S.C.
to the long-applied interpretation of the Eleventh Amendment,
“[a] suit generally may not be maintained directly
against the State itself, or against an agency or department
of the State, unless the State has waived its sovereign
immunity.” Fla. Dep’t of State v.
Treasure Salvors, Inc.,458 U.S. 670, 684 (1982);
Lee-Thomas v. Prince George’s Cty.Public
Sch., 666 F.3d 244, 248 (4th Cir. 2012). As several
courts have concluded, the Virginia Department of Social
Services is a state department protected by the Eleventh
Amendment. See Krieger v. Loudoun Cty., Dep’t. of
Social Servs., No. 5:13-cv-73, 2014 WL 4923904, at *3
(W.D. Va. Sept. 30, 2014), aff’d 599 F. App’x 112
(4th Cir. 2015); Bd. of Supervisors of Warren Cty. v. Va.
Dep’t of Social Servs.,731 F.Supp. 735, 738 (W.D.
Va. 1990); see also Bockes v.Fields,999 F.2d 788, 791 (4th Cir. 1993) (finding
county-level social services department protected by Eleventh
Amendment); Shipway v. Jerlinksi, No. 5:11-cv-112,
2012 WL 1622395, at *5 (W.D. Va. Apr. 13, 2012) (same).
Virginia statute creates the Department of Social Services
within the executive branch and grants the supervising
Commissioner authority to create divisions, such as the
Division of Child Support Enforcement. See Va. Code
§§ 63.2-200, 63.2-209. The DCSE is also akin to a
state department, as it has no authority or identity other
than that derived from the State and the Department of Social
Services. Godwin v. State of Va. Child Support Enforcement
Div., No. 3:02-cv-421, 2002 WL 32349403, at *2 (E.D. Va. Aug.