Cherry v. University of Alabama Huntsville

Filing 20

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/6/2014. (PSM)

FILED
2014 Feb-07 PM 01:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DANNY WILLIAM CHERRY,
Plaintiff,
vs.
UNIVERSITY OF ALABAMA
HUNTSVILLE,
Defendant.

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Civil Action Number
5:13-cv-1972-AKK

MEMORANDUM OPINION
Pro se Plaintiff Danny William Cherry filed this action against the
University of Alabama Huntsville (“the University”), alleging that “false
allegations were made” against him and that the University “harassed and force[d]
[him] to withdraw after being banned from campus with[out] a just case.” Doc. 1
at 2. Mr. Cherry filed motions to amend the complaint, appoint counsel, change
venue, expedite, confer with Defendant, meet with the judge, and for settlement
conference, docs. 7, 13, 14, 15, 17, 18, 19, which are not properly before the court
because Mr. Cherry failed to serve them on the University. Fed. R. Civ. P. 5(a)
and (b); N.D. Ala. LR 5.4.1 The University has moved to dismiss this action, doc.

1

Because electronic filing is not available to pro se parties, the United States District
Court, Northern District of Alabama Local Rule 5.4 requires pro se parties to serve documents in
a manner described in Federal Rule of Civil Procedure 5(b). However, the failure to serve is a
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8, and the motion is briefed, docs. 12, 16, and ripe for resolution. For the reasons
stated below, the University’s motion is due to be granted.
I.

Standard of Review
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a

short and plain statement of the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” are
insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks
omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(1) authorizes a motion to dismiss
based on the defense that the court lacks subject-matter jurisdiction. Facial attacks
to jurisdiction are based on the allegations in the complaint, which the court must
take as true in deciding whether to grant the motion. Morrison v. Amway Corp.,
323 F.3d 920, 924 n.5 (11th Cir. 2003) (citation omitted).

moot issue because the University’s motion to dismiss, doc. 8, is due to be granted.
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Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “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, 129
S. Ct. 1937, 1949 (2009) (citations and internal quotation marks omitted). A
complaint states a facially plausible claim for relief “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citation omitted). The
complaint must establish “more than a sheer possibility that a defendant has acted
unlawfully.” Id. See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(“Factual allegations must be enough to raise a right to relief above the speculative
level.”). Ultimately, this inquiry is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 129
S. Ct. at 1950.
Like a Rule 12(b)(1) motion, the court accepts all factual allegations as true
on a motion to dismiss under Rule 12(b)(6). See, e.g., Grossman v. Nationsbank,
N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). However, legal conclusions
unsupported by factual allegations are not entitled to that assumption of truth.
Iqbal, 129 S. Ct. at 1950.
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II.

Analysis
The University raises several arguments in support of its motion to dismiss,

including that it is entitled to immunity pursuant to the Eleventh Amendment of
the U.S. Constitution and Article I, § 14 of the Alabama Constitution. Doc. 8 at 2.
Mr. Cherry failed to address these arguments in his response to the University’s
motion, and, in fact, implicitly concedes the immunity defense by asking this court
to ignore the law because “[n]o man, not even the President has immunity.” Doc.
12 at 1. In light of Mr. Cherry’s failure to address the University’s arguments, Mr.
Cherry has waived his right to do so, see Goldman v. Bracewell & Guiliani,
L.L.P., 183 F. App’x 873, 874 (11th Cir. 2006); Iraola & CIA S.A. v. KimberlyClark Corp., 325 F.3d 1274, 1284 (11th Cir. 2003), and, for the reasons stated
below, the motion is due to be granted.
A.

Lack of subject matter jurisdiction

The court can discern no proper basis for it to exercise jurisdiction over this
matter because Mr. Cherry’s statement of his claim fails to assert any cause of
action arising under federal law. In fact, the one allegation that Mr. Cherry
specifically mentions in his filings, i.e. that the University defamed him by falsely
claiming he had charges pending for felony murder, is one that, at best, arises

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under state law.2 Because “[f]ederal courts are courts of limited jurisdiction,” with
the power to hear only cases authorized by the Constitution or by statute,
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations
omitted), this court lacks subject matter jurisdiction over this matter. Accordingly,
the motion to dismiss is due to be granted.
B.

Eleventh Amendment Immunity

To the extent Mr. Cherry is contending that the University violated his
federal rights pursuant to 42 U.S.C. § 1983 by improperly trying to execute a
warrant to arrest him for felony murder, doc. 7, any such claim would fail because
the University is entitled to Eleventh Amendment immunity. Under the Eleventh
Amendment, “[t]he judicial power of the United States shall not be construed to
extend to any suit . . . 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. The
Supreme Court has additionally held “that an unconsenting state is immune from
lawsuits brought in federal court by the state’s own citizens” for retrospective
recovery of money damages. Carr v. City of Florence, Ala., 916 F.2d 1521, 1524
(11th Cir. 1990), citing Hans v. Louisiana, 134 U.S. 1 (1890). Therefore, absent

2

The court cannot hear this claim under diversity jurisdiction because Mr. Cherry is an
Alabama resident and the University is an Alabama entity. Doc. 1 at 2; see Fed. R. Civ. P.
8(a)(1) and 12(b)(1).
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an express waiver, “a suit in which the State or one of its agencies or departments
is named as the defendant is proscribed by the Eleventh Amendment.” Id.
(internal quotation marks and citation omitted). Furthermore, states are not
“persons” subject to liability under § 1983. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989). The University is an instrumentality of the state
and, as such, is immune from § 1983 liability. Harden v. Adams, 760 F.2d 1158,
1164 (11th Cir. 1985) (citation omitted); Matthews v. Ala. A&M Univ., 787 So. 2d
691, 696-97 (Ala. 2000); Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S.
356, 363 (2001) (citation omitted).
Perhaps because Mr. Cherry recognizes that a dismissal of his claim is
warranted under existing case law, Mr. Cherry asks the court to ignore the law by
asserting that “all men are created equal,” “[n]o man, not even the President has
immunity,” that “rulings made in . . . past cases were bias and made by men who
often err,” and that the U.S. Constitution is flawed because its drafters were slave
owners. Doc. 12 at 1-2. This court declines to accept Mr. Cherry’s invitation for
it to ignore the law. After all, to paraphrase Mr. Cherry, no man, not even a judge,
is immune from following the law. Therefore, because the University has
immunity under the Eleventh Amendment, allowing Mr. Cherry to amend the
complaint to add a defamation claim as he asks, see doc. 7, would be futile.
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III.

Conclusion
Based on Mr. Cherry’s failure to invoke the court’s subject matter

jurisdiction and the University’s entitlement to Eleventh Amendment immunity,
by separate order, the court will GRANT the University’s motion and DISMISS
this lawsuit without prejudice, and MOOT Mr. Cherry’s motions for appointment
of counsel, change of venue, earlier court date, and settlement, and motions to
amend the complaint, confer with the University, and meet with the judge.
DONE the 7th day of February, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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