8/10/2019 3:14-cv-03504 #15

1/12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISIONC/A No.: 3:14-cv-03504-CMC

Teresa Culpepper, on behalf of her minorchild, C.C.,

Plaintiff,

v.

Kevin A. Shwedo, in his official capacity as

the Executive Director of the SouthCarolina Department of Motor Vehicles and

Tammy King, in her official capacity as the

Manager of the Anderson Office of theSouth Carolina Department of Motor

Vehicles,

Defendants.

)))

)

))

)

)

))

)

))

)

)

)

MOTION TO DISMISS ON BEHALF OF

DEFENDANTS KEVIN SHWEDO

AND TAMMY KING

NOW COME Defendants Kevin A. Shwedo and Tammy King, in their official capacities

(hereinafter the Defendants), and enter this responsive pleading in the above-referenced action.

As set forth below, the Defendants consider this matter to be moot, and request that it be

dismissed. Previously, the Defendants received the consent of counsel for the Plaintiff to answer

or otherwise file a responsive pleading in this case no later than October 24, 2014, which was

approved by this Court. [NEF Dkt. #11]. The Court later extended the time to file a responsive

pleading to November 21, 2014. [NEF Dkt. # 14]. The Defendants requested the additional time

because the parties are attempting to resolve any remaining differences by agreement, and

needed the additional time to reach agreement.

The parties have not yet reached agreement on all matters before them, and because the

Defendants must file a responsive pleading, they request that the Court dismiss the case on

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15 Page 1 of 4

8/10/2019 3:14-cv-03504 #15

2/12

2

grounds of mootness under Rule 12(b)(1), FED.R.CIV.P.1 The Defendants make this request

based on the following.

LEGAL DISCUSSION

1. Plaintiff has alleged that the South Carolina Department of Motor Vehicles

(SCDMV) was enforcing an unconstitutional requirement that C. C., a sixteen-year-old high

school student, remove his everyday makeup before being permitted to take a drivers license

photo. Plaintiff alleges that C. C. is male, but is gender non-conforming, and wears makeup and

androgynous clothing or clothing typically worn by women on a regular basis. (Plaintiffs

Complaint, 1). C.C. presented himself for a drivers license photograph at the Anderson

SCDMV Office on or about March 3, 2014.

2. On or about May 27, 2014, SCDMV updated its Procedure DL-201 concerning

Credential Photo Security. (Exhibit A). Specifically, regarding attire and appearance,

Section III(A)(2) of the procedure notes that [r]egular everyday cosmetic makeup is acceptable

because it is generally used to highlight natural beauty and/or to hide blemishes or flaws. The

directive is not gender specific.

3. Plaintiff filed this action on September 2, 2014. [NEF Dkt. #1].

4. On or about October 7, 2014, SCDMV sent a letter to C.C., attached as Exhibit

B, stating that he could have his license photograph taken with the appearance you presented

on March 3, 2014.

5. [A] case is moot when the issues presented are no longer live or the parties lack

a legally cognizable interest in the outcome.Powell v. McCormack, 395 U.S. 486, 496 (1969);

see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011). The

1 Prior to the Courts entry of an order regarding this motion, or Plaintiffs response to this

motion, the Defendants intend to attempt to reach and finalize an agreement with Plaintiff.

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15 Page 2 of 4

8/10/2019 3:14-cv-03504 #15

3/12

3

requirement that a case involve an actual, ongoing controversy extends throughout the pendency

of an action. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975). To satisfy the Article III case or

controversy requirement, [a] litigant must have suffered some actual injury that can be

redressed by a favorable judicial decision. Iron Arrow Honor Socy v. Heckler, 464 U.S. 67,

70-71 (1983). When a case or controversy ceases to exist, the litigation becomes moot and the

federal court no longer possesses jurisdiction to proceed.Id.

6. A case can become moot due to a change in factual circumstances or a change in

the law. See Ross v. Reed, 719 F.2d 689, 693 (4th Cir. 1983) (If intervening factual or legal

events effectively dispel the case or controversy during pendency of the suit, the federal courts

are powerless to decide the questions presented.). Generally speaking, one such [factual]

circumstance mooting a claim arises when the claimant receives the relief he or she sought to

obtain through the claim. Friedmans, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002). It is

well settled that a defendants voluntary cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of the practice. Friends of theEarth, Inc. v.

Laidlaw Environmental Services, 528 U.S. 167, 189 (2000) (quoting City ofMesquite v.

Aladdins Castle, Inc., 455 U.S. 283, 289 (1982)). Voluntary cessation does not moot a case or

controversy unless subsequent events ma[ke] it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur. See Parents Involved in Community

Schools v. Seattle School District No. 1, 551 U.S. 701, 719, 127 S.Ct. 2738, 168 L.Ed.2d 508

(2007) (quotingFriends of the Earth, Inc. 528 U.S. at 189).

7. In this circumstance, the allegedly wrongful behavior cannot reasonably be

expected to recur. As noted above, prior to the institution of this action, on May 27, 2014,

SCDMV updated its Procedure DL-201 concerning Credential Photo Security. (Exhibit

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15 Page 3 of 4

8/10/2019 3:14-cv-03504 #15

4/12

4

A). Specifically, regarding attire and appearance, Section III(A)(2) of the procedure notes that

[r]egular everyday cosmetic makeup is acceptable because it is generally used to highlight

natural beauty and/or to hide blemishes or flaws. The directive is not gender specific.

8. Indeed, the change in policy occurred prior to the filing of the lawsuit, and was

completely voluntary on the part of SCDMV.

9. Furthermore, the Departments letter (Exhibit B) affirms that the change in

policy applies to the Plaintiff in the very manner that he seeks in his lawsuit. Thus, with regard

to Plaintiff, it is practically impossible for the allegedly wrongful behavior to be reasonably

expected to recur.

CONCLUSION

For these reasons, SCDMV respectfully requests that this action be dismissed with

prejudice as moot.

Dated this the 21stday of November, 2014.

Respectfully Submitted,

RICHARDSON PLOWDEN & ROBINSON, P.A.

s/Eugene H. Matthews

Eugene H. Matthews, ID # 71411900 Barnwell Street (29201)

Post Office Drawer 7788

Columbia, South Carolina 29202

T: (803) 771-4400F: (803) 779-0016

E-mail: gmatthews@RichardsonPlowden.com

COUNSEL FOR DEFENDANTS KEVIN SHWEDO AND

TAMMY KING,IN THEIR OFFICIAL CAPACITIES

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15 Page 4 of 4

mailto:gmatthews@RichardsonPlowden.commailto:gmatthews@RichardsonPlowden.commailto:gmatthews@RichardsonPlowden.com

8/10/2019 3:14-cv-03504 #15

5/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-1 Page 1 of 6

8/10/2019 3:14-cv-03504 #15

6/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-1 Page 2 of 6

8/10/2019 3:14-cv-03504 #15

7/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-1 Page 3 of 6

8/10/2019 3:14-cv-03504 #15

8/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-1 Page 4 of 6

8/10/2019 3:14-cv-03504 #15

9/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-1 Page 5 of 6

8/10/2019 3:14-cv-03504 #15

10/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-1 Page 6 of 6

8/10/2019 3:14-cv-03504 #15

11/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-2 Page 1 of 2

8/10/2019 3:14-cv-03504 #15

12/12

3:14-cv-03504-CMC Date Filed 11/21/14 Entry Number 15-2 Page 2 of 2