Ryan Nicholl v. Board of Regents of the Univer

Filing

Opinion issued by court as to Appellant Ryan Patrick Nicholl. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 08/07/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17739
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-01350-AT

RYAN PATRICK NICHOLL,
Plaintiff-Appellant,
versus
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 7, 2017)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:

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Ryan Nicholl, proceeding pro se, appeals the dismissal of his complaint
against the Board of Regents of the University System of Georgia (“Board”) for
violating the U.S. Constitution, the Georgia Constitution, federal antitrust laws,
and state contract law by charging him for a university meal plan and denying his
request to opt out of the meal plan program. Nicholl raises two issues on appeal.
First, he argues that the district court erred by concluding that his claims were
barred on immunity grounds. Second, he contends that the court erroneously
dismissed as futile his motion for leave to amend the complaint. We address each
of the issues below.
I.
Nicholl argues that the court erred by determining that the Board was an arm
of the state entitled to sovereign immunity; by concluding that his antitrust claims,
his contract claims, and his constitutional claims were barred by immunity; by
denying his request for money damages; by not treating his complaint as an in rem
action; and by permitting the clerk to enter judgment. Each of Nicholl’s arguments
is addressed, in turn, below.
A. Arm of the state entitled to Eleventh Amendment immunity
Nicholl contends that the Board is not a sovereign entity or an arm of the
state entitled to sovereign immunity.

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The grant or denial of a state’s sovereign immunity defense is an issue of
law subject to de novo review. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,
344 F.3d 1288, 1290 (11th Cir. 2003).
The Eleventh Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. While the
Supreme Court has held that the Eleventh Amendment is not jurisdictional in the
sense that courts must address the issue sua sponte, it has held that Eleventh
Amendment immunity is in the nature of a jurisdictional bar. Bouchard Transp.
Co. v. Fla. Dep’t of Envtl. Prot., 91 F.3d 1445, 1448 (11th Cir. 1996). Thus,
Eleventh Amendment immunity is a threshold issue that should be decided at an
early stage. Id.
The Eleventh Amendment prohibits federal courts from exercising
jurisdiction over lawsuits against a state, except where the state has consented to be
sued or waived its immunity, or where Congress has overridden the state’s
immunity. Cross v. State of Ala., 49 F.3d 1490, 1502 (11th Cir. 1995).
Sovereign immunity under the Eleventh Amendment applies both to states
and to those entities that are considered “arm[s] of the state.” Fouche v. Jekyll
Island-State Park Auth., 713 F.2d 1518, 1520 (11th Cir. 1983). The Board is
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considered a state entity that is an arm of the state of Georgia for purposes of the
Eleventh Amendment, and, therefore, is entitled to sovereign immunity, unless
waived. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 616-17
(2002) (addressing whether the Board had waived its Eleventh Amendment
immunity in that particular case); Stroud v. McIntosh, 722 F.3d 1294, 1299 (11th
Cir. 2013) (describing the defendant in Lapides as “the Board of Regents of the
University System of Georgia (an arm of the state)”); Williams v. Bd. of Regents of
Univ. Sys. of Ga., 477 F.3d 1282, 1301-02 (11th Cir. 2007) (“Nor has . . . the
Board of Regents waived its Eleventh Amendment immunity.”).
The district court did not err in concluding that the Board was an arm of the
state entitled to Eleventh Amendment immunity. See Lapides, 535 U.S. at 616-17;
Stroud, 722 F.3d at 1299; Williams, 477 F.3d at 1301-02. Furthermore, as
discussed in parts B, C, D, and E, below, the court correctly determined that
Nicholl’s antitrust claims, contract claims, constitutional claims, and request for
money damages were barred because the Board, as an arm of the state, was
immune to such suits.
B. Antitrust claims
Nicholl asserts that the court erred by concluding that his federal antitrust
claims were barred by sovereign immunity.

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The application of the state action doctrine is a question of law reviewed de
novo. F.T.C. v. Hosp. Bd. of Directors of Lee Cty., 38 F.3d 1184, 1187 (11th Cir.
1994).
“[N]either the Sherman Act nor the Clayton Act was intended to authorize
restraint of governmental action.” Alabama Power Co. v. Alabama Elec. Co-op.,
Inc., 394 F.2d 672, 675 (5th Cir. 1968). Under the state action immunity doctrine,
states are immune from federal antitrust law for their actions as sovereign. Crosby
v. Hosp. Auth. of Valdosta & Lowndes Cty., 93 F.3d 1515, 1521 (11th Cir. 1996);
see Parker v. Brown, 317 U.S. 341 (1943). The doctrine is grounded in and
derived from principles of federalism and state sovereignty. Crosby, 93 F.3d at
1521.
The state action immunity doctrine “does not apply directly to a state’s
political subdivisions because these subdivisions are not themselves sovereign.”
Id. (emphasis in original). A political subdivision is entitled to state action
immunity if it acted pursuant to clearly articulated and affirmatively expressed
state policy. Id.
In Saenz v. Univ. Interscholastic League, 487 F.2d 1026 (5th Cir. 1973), the
former Fifth Circuit determined that the University Interscholastic League (“UIL”),
which was part of the Extension Division of the University of Texas at Austin, was
a governmental entity “outside the ambit of the Sherman Act.” Saenz, 487 F.2d at
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1027-28 (citing Alabama Power, 394 F.2d at 675). Because the University of
Texas at Austin was “inarguably a state agency or governmental body,” the Fifth
Circuit inquired into the extent to which the UIL was connected to the university in
order to determine if it was “imbued with ample characteristics to warrant the . . .
determination that the organization is an agency of the State of Texas.” Id. The
Court concluded that the UIL was an “integral part” of the university and, thus,
immune from suit under federal antitrust law. Id. at 1028. The Fifth Circuit
further noted that this “shield of immunity, of course, is not limited to
governmental agencies alone but extends as well to officers or agents of the State.”
Id.
The district court correctly determined that the Board was immune from
Nicholl’s claims that relied on federal antitrust law. As an arm of the state, the
Board is outside the ambit of Nicholl’s Sherman Act and Clayton Act claims, and
the court properly concluded that such claims were barred. See Saenz, 487 F.2d at
1028.
C. Contract claims
Nicholl argues that although Georgia only waived immunity from contract
actions in state court, the Board never had sovereign immunity that needed to be
waived for actions in federal court. Even if the Eleventh Amendment did apply,
Nicholl argues, the Board’s ability to contract in its own name, rather than in
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Georgia’s name, makes it a distinct entity from the state and not an arm of the state
for purposes of contract actions.
“Georgia has not waived its Eleventh Amendment immunity from suit in
federal court for breach of contract claims.” Barnes v. Zaccari, 669 F.3d 1295,
1308 (11th Cir. 2012). We explained in Barnes:
The Georgia constitution waives the state’s sovereign immunity for
actions ex contractu. Ga. Const. art. I, § 2, ¶ IX(c). Similarly, the
Georgia Code also waives the state’s sovereign immunity for breach
of contract claims. Ga. Code . . . § 50-21-1(a). But neither provision
expressly consents to suits in federal court. . . .
In fact, Georgia expressly retained its Eleventh Amendment
immunity from such claims. Following the waiver of sovereign
immunity in the Georgia constitution, a separate subsection provides
that: “No waiver of sovereign immunity under this Paragraph shall be
construed as a waiver of any immunity provided to the state or its
departments, agencies, officers, or employees by the United States
Constitution.” Ga. Const. art. I, § 2, ¶ IX(f). Eleventh Amendment
immunity is an immunity provided by the United States Constitution.
Additionally, the waiver in the Georgia Code states that “venue with
respect to any [breach of contract] action shall be proper in the
Superior Court of Fulton County, Georgia.” Ga. Code . . . § 50-211(b). . . . [A] state can consent to suit in its own courts without

consenting to suit in federal court. And that is exactly what Georgia
did when it enacted § 50-21-1.
Id. at 1308-09.
The court correctly concluded that Nicholl’s contract claims were barred by
Eleventh Amendment immunity. See Barnes, 669 F.3d at 1308-09. Georgia has
not waived its sovereign immunity from suit in federal court for such claims, and,
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thus, the proper forum for Nicholl’s contract claims is in Georgia state court, not
federal court. See id.
D. Constitutional claims
Nicholl asserts that the court erred by categorizing his constitutional claims
under a 42 U.S.C. § 1983 action. He argues that he has the right to contest the
legality of the money that he was charged under his right to due process and right
to petition the government for redress of grievances. He states that the Board has
taken his money without any due process and for no reason, and it should not be
able to claim sovereign immunity to prevent it from having to return the money.
Nicholl further contends that a takings or due process claim should prevail over
sovereign immunity since the Fourteenth Amendment was ratified after the
Eleventh Amendment.
Section 1983 provides a remedy for the deprivation of federal civil rights by
a person acting under color of state law. See 42 U.S.C. § 1983; Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). However, while “[s]ection
1983 provides a federal forum to remedy many deprivations of civil liberties, . . . it
does not provide a federal forum for litigants who seek a remedy against a State for
alleged deprivations of civil liberties. The Eleventh Amendment bars such suits,”
unless the immunity is waived or overridden. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 66 (1989). “Congress has not abrogated states’ immunity from
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§ 1983 suits,” nor has the Board waived its Eleventh Amendment immunity.
Williams, 477 F.3d at 1301-02.
Under the Ex Parte Young doctrine, a suit requesting injunctive relief on a
prospective basis for an ongoing constitutional violation against a state official in
her official capacity is not a suit against the state, and, accordingly, does not
violate the Eleventh Amendment. Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir.
2011); see Ex Parte Young, 209 U.S. 123 (1908). However, the Ex Parte Young
exception to sovereign immunity “has no application in suits against the States and
their agencies, which are barred regardless of the relief sought.” Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
A Fifth Amendment Takings Clause claim does not become ripe for review
in federal court unless the state provides no procedure for obtaining just
compensation. Bickerstaff Clay Prod. Co. v. Harris Cty., Ga. By & Through Bd. of
Comm’rs, 89 F.3d 1481, 1490-91 (11th Cir. 1996) (citing Williamson Cty. Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)).
Under Georgia law, such a procedure exists. Id.
Here, the district court correctly dismissed Nicholl’s constitutional claims
against the Board. In order to avoid Eleventh Amendment immunity for his
alleged deprivations of civil liberties, Nicholl needed to seek injunctive relief
against a state official in his or her official capacity, because the Ex Parte Young
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exception does not apply to Nicholl’s claims against the Board, which is an arm of
the state. See Puerto Rico Aqueduct, 506 U.S. at 146; part A, supra. Inasmuch as
Nicholl presented a Fifth Amendment takings claim, the claim was not ripe for
review in federal court because Georgia offers a procedure for obtaining just
compensation. See Bickerstaff, 89 F.3d at 1490-91.
E. Request for money damages
Nicholl contends that money damages are not barred because if the court
were to rule in his favor, the Board would merely be returning money that it never
lawfully owned, and “recovered” money, as opposed to “taken” money, may be
awarded as damages. Citing Ward v. Bd. of Cty. Comm’rs of Love Cty., Okl., 253
U.S. 17 (1920), Nicholl asserts that when a political subdivision acquires money
unlawfully, it remains obligated to return that money.
Under the Eleventh Amendment, states are immune from money damages in
§ 1983 suits. Tuveson v. Fla. Governor’s Council on Indian Affairs, Inc., 734 F.2d
730, 732 (11th Cir. 1984). In Ward, the Supreme Court reversed the Oklahoma
Supreme Court’s refusal to award a refund for an unlawful tax that was levied by
coercive means. Ward, 253 U.S. at 23-25. The county that levied the tax
threatened to sell the lands of the claimants if the tax was not paid. Id. at 23.
The court correctly concluded that Nicholl could not recover money
damages. Nicholl cannot not seek such damages through a § 1983 action, see
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Tuveson, 734 F.2d at 732, and Nicholl’s only other contention is that he could
recover the money under Ward. However, unlike in Ward, Nicholl was not
coerced into paying a tax by threat of losing the taxed property. See Ward, 253
U.S. at 23. Accordingly, Ward does not provide Nicholl with a vehicle to recover
money damages from the Board.
F. In rem jurisdiction
Nicholl argues that, even if sovereign immunity does apply, it does not block
the court’s in rem jurisdiction to decide the ownership of the money he was
charged for the meal plans.
We generally do not consider arguments raised for the first time on appeal.
Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir. 1994). There are five exceptions in
which we will consider an issue that was not first raised in the district courts:
(1) the issue involves a pure question of law, and refusal to consider it would result
in a miscarriage of justice; (2) the appellant raises an objection to an order that he
had no opportunity to raise at the district court level; (3) the interest of substantial
justice is at stake; (4) the proper resolution is beyond any doubt; and (5) the issue
presents significant questions of general impact or of great public concern. Id. at
1526-27.
Nicholl’s argument regarding in rem jurisdiction of the court was not raised
below in Nicholl’s amended complaint, response to the motion to dismiss, or
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motion to vacate or for leave to amend, and, thus, we decline to consider the
argument. See Narey, 32 F.3d at 1526-27. To the extent that Nicholl argues that
he could amend his complaint to an in rem action, his argument is discussed in
issue 2, below.
G. Entry of judgment
Nicholl argues that the court erred by permitting the clerk to enter the
written judgment.
Federal Rule of Civil Procedure 58(b) addresses when the clerk may enter
judgment without the court’s direction and when the court’s approval is required.
Fed. R. Civ. P. 58(b). Rule 58(b)(1) states that the clerk must, without awaiting the
court’s direction, promptly prepare, sign, and enter the judgment when the court
denies all relief. Fed. R. Civ. P. 58(b)(1)(C).
The court did not err by permitting the clerk to enter the judgment in
Nicholl’s case, as the court’s order dismissing all of Nicholl’s claims denied all
relief to Nicholl. Hence, the clerk was required by the Federal Rules of Civil
Procedure to prepare, sign, and enter the judgment without awaiting the court’s
direction. See Fed. R. Civ. P. 58(b)(1)(C).

II.

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Nicholl argues that the court erred by denying his request for leave to amend
the complaint, assuming that it was defective, because he could have “clearly
correct[ed] the complaint . . . by altering the style of the action to an in rem or
‘quiet title’ action, even if sovereign immunity would otherwise bar the action.”1
He also asserts that it would not have been futile to amend the complaint because
he could have saved the complaint from dismissal by “changing the way the
Defendant is named . . . ,” regardless of whether sovereign immunity barred the
complaint.
We review a district court’s order denying a motion for leave to amend for
abuse of discretion, although we review de novo the underlying legal conclusion of
whether a particular amendment to the complaint would be futile. Chang v.
JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1093-94 (11th Cir. 2017). Under the
Federal Rules of Civil Procedure, a district court “should freely give leave” to
amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). But a
district court may properly deny leave to amend the complaint under Rule 15(a)
when such amendment would be futile, such as when the complaint as amended is
still subject to dismissal. Chang, 845 F.3d at 1094.

1

Nicholl’s motion was a motion to vacate and for leave to amend. Because Nicholl only argues
that denial of his request for leave to amend was error, the denial of the motion to vacate is not
addressed. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A]
legal claim or argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.”).
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To survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009). To state a plausible claim for relief, a
plaintiff must go beyond merely pleading the “sheer possibility” of unlawful
activity by a defendant and so must offer “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
The court did not err by denying the motion for leave to amend because
Nicholl does not show that any proposed amendment would have avoided
dismissal. See Chang, 845 F.3d at 1094. Even if Nicholl amended his complaint
to name state officials under the Ex Parte Young exception and sought a
prospective injunction, Nicholl would still need to show that there is more than the
sheer possibility of ongoing constitutional violations by offering factual content
that allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged, and Nicholl fails to do so. See Ashcroft, 556 U.S. at 678;
Grizzle, 634 F.3d at 1319. Furthermore, Nicholl’s contention that the complaint
could be saved by being amended to an in rem or quiet title action against the
money that was used to pay for the meal plan is without merit because Nicholl
does not offer any proposed amendment that could state a plausible claim for relief
on either of those bases. Accordingly, we affirm.
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AFFIRMED.

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