Mykins v. Alabama Department of Human Resources (DHR) et al

Filing 29

Order granting in part denying in part 17 MOTION to Dismiss. Surviving the motion to dismiss are the Title VI claim (Count 7) as against the DHR defendants and the conspiracy claims (Counts 10-12) as against the Craigs. Plaintiff is ordered by 10/14/2011 to file an amended complaint as set out. Signed by Chief Judge William H. Steele on 9/29/2011. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROSA MYKINS, etc.,
Plaintiff,
v.
ALABAMA DEPARTMENT OF
HUMAN RESOURCES, etc., et al.,
Defendants.

)
)
)
)
) CIVIL ACTION 11-0264-WS-M
)
)
)
)
)
ORDER

This matter is before the Court on the motion of all remaining defendants to
dismiss. (Doc. 17). The parties have filed briefs in support of their respective positions,
(Docs. 17, 22, 24), and the motion is ripe for resolution. After carefully considering the
foregoing, the Court concludes that the motion is due to be granted in part and denied in
part.

BACKGROUND
Like most infants, Saquoia Riley1 is unaware of the fuss that surrounds her. But
unlike with most infants, this fuss centers on who will have custody of her. Saquoia’s
mother, Kelly Riley, is a guest of the Alabama prison system, and her father is absent
from this story. Plaintiff Rosa Mykins is Saquoia’s paternal grandmother, who sues in
her own right and as guardian of two other granddaughters, who are Saquoia’s halfsisters. The remaining defendants are the Alabama Department of Human Resources

1

She is so named in the complaint. The plaintiffs’ brief in opposition to the motion to
dismiss spells her name “Sequoia.”

[1]

(“ADHR”), the Baldwin County Department of Human Resources (“BCDHR”)
(collectively, “the DHR defendants” or “DHR”), and Thomas and Jena Craig.
Defendant Sheila Stone has been dismissed without prejudice on the plaintiff’s
motion. (Doc. 23). Several fictitious defendants are listed in the style and elsewhere,
(Doc. 1, 10), but “[a]s a general matter, fictitious-party pleading is not permitted in
federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). There is a
“limited exception” to this rule “when the plaintiff’s description of the defendant is so
specific as to be at the very worst, surplusage.” Id. (internal quotes omitted). Simply
identifying a defendant as “John Doe (Unknown Legal Name), Guard, Charlotte
Correctional Institute” does not implicate this exception, because it is “insufficient to
identify the defendant among the many guards employed at CCI.” Id. Dismissal of a
purported claim against such an inadequately identified defendant is proper. Id. Here,
the complaint identifies the fictitious defendants only as “working for BCDHR,” whose
undescribed conduct “contribut[ed] to the violation of Plaintiffs’ constitutional and
statutory rights.” (Doc. 1 at 10). This is no more sufficient a description than that in
Richardson. Accordingly, all claims against fictitious defendants will be dismissed,
without prejudice to the plaintiff’s ability to file a timely amended complaint asserting
claims against additional named defendants.
According to the complaint, Riley and Saquoia are white, while Mykins, her son
and her other two granddaughters are Latino. Mykins is the legal guardian and custodian
of these two granddaughters, and she desires custody of Saquoia. Riley likewise wants
Mykins to have custody of Saquoia while Riley serves her prison sentence. DHR,
however, does not want a Latina having custody of a white child and has resisted, both
passively and actively, Mykins’ efforts to gain custody, despite knowing of Riley’s
wishes and despite having no good reason to do so. DHR has instead favored the Craigs,
who are white, run a foster home, have temporary custody of Saquoia and desire to adopt
her.

[2]

The complaint contains 21 counts, but the plaintiffs have abandoned three of
them.2 They have also clarified that their pendent state-law claims are asserted only
against the fictitious defendants, (Doc. 22 at 24), which claims therefore are effectively
out of the case.3 The claims remaining in the case, and the defendants against which they
are asserted, are as follows:
• Count 1

Equal protection

DHR

• Count 3

Procedural due process

DHR

• Count 4

Substantive due process

DHR

• Count 6

Substantive due process

DHR

• Count 7

Title VI

DHR

• Count 8

Multiethnic Placement Act (“MEPA”)

DHR

• Count 9

Small Business Job Protection Act

DHR

•

Section 1985(3)

DHR and Craigs

• Count 11

Section 1986

DHR and Craigs

• Count 12

Section 1986

DHR and Craigs

• Count 19

Declaratory Judgment

DHR

• Count 21

Procedural Due Process

DHR4

Count 10

2

The plaintiffs have expressly abandoned Counts 2 and 5. (Doc. 22 at 12 n.4). They
have dismissed defendant Stone, (Docs. 20, 23), who is the only defendant under Count 20.
3

The plaintiffs do not identify these counts, but they clearly include Count 13 (violation
of Alabama Constitution); Count 14 (declaration that the defendants abused their discretion
under state law); Count 15 (declaration concerning effect of state statute regarding mother’s
consent); Count 16 (declaration concerning effect of state statute regarding DHR’s consent);
Count 17 (declaration that defendants violated the Alabama Constitution); and Count 18
(declaration that DHR failed to comply with a state statute). (Doc. 1 at 38-42). The plaintiffs
offer no defense of these counts in their opposition brief.
4

The plaintiffs confirm that only the Section 1985 and 1986 claims include the Craigs as
defendants. (Doc. 22 at 25).

[3]

DISCUSSION
The defendants assert an array of arguments, some of which have been mooted by
the deletion of claims noted above. The Court addresses only those necessary to resolve
their motion.

A. Pleading Sufficiency.
The defendants offer what appears to be a pro forma listing of pleading rules,
accompanied by unadorned pronouncements that the rules have been violated but with no
effort to demonstrate that this is so. The defendants first note that Rule 10(b) renders it
improper for a complaint to combine multiple claims in a single count. (Doc. 17 at 2-3).
They do not, however, identify any instance in which the complaint violates this rule, and
the Court finds none.
The defendants also object that the complaint does not specify which claims are
asserted against which defendants. (Doc. 17 at 2). Whatever the deficiencies of the
pleading itself , the plaintiff’s clarifications in brief leave it clear what claims are asserted
against which defendants. The remaining claims, and the defendants under each, are set
forth above.
In a related vein, the defendants argue that the complaint fails to identify
adequately the constitutional rights alleged to have been violated. (Doc. 17 at 4). It is
difficult to see how a count entitled, for example, “Fourteenth Amendment Procedure
[sic] due Process Violation,” (Doc. 1 at 45), can leave obscure the constitutional right at
issue, and no count is any less clearly denominated.
Next, the defendants provide a primer on the Twombly-Iqbal plausibility standard,
(Doc. 17 at 3-4), but they identify no failure of the complaint to attain this standard.
Even a quick review of the complaint reveals that it offers many allegations of fact to
support the claims asserted therein, far more than required to show plausibility.
Finally, the defendants invoke the “heightened pleading” standard, (Doc. 17 at 45), again without pointing out any manner in which the complaint falls short. At any rate,
[4]

“[a]fter Iqbal, it is clear that there is no ‘heightened pleading standard’ as it relates to
cases governed by Rule 8(a)(2), including civil rights complaints.” Randall v. Scott, 610
F.3d 701, 710 (11th Cir. 2010). Instead, “whatever requirements our heightened pleading
standard once imposed have since been replaced by those of the Twombly-Iqbal
plausibility standard.” Id. at 707 n.2.

B. Sovereign Immunity.
States are immune from suit in federal court by virtue of the Eleventh
Amendment. Such immunity extends to entities having a sufficiently close connection to
the state that a suit against the entity is effectively one against the state itself. Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984). The DHR defendants
assert Eleventh Amendment immunity under this standard as to all federal claims against
them. (Doc. 17 at 17-23, 25-26).
Whether an entity other than the state itself partakes of the state’s Eleventh
Amendment immunity depends on whether it is an “arm of the state.” Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274, 280 (1977). “Whether [a
defendant] is an arm of the state protected by the Eleventh Amendment turns on its
function and character as determined by state law. ... Factors that bear on this
determination include the definition of ‘state’ and ‘political subdivision,’ the state’s
degree of control over the entity, and the fiscal autonomy of the entity.” Fouche v. Jekyll
Island - State Park Authority, 713 F.2d 1518, 1520 (11th Cir. 1983). A fourth factor,
sometimes subsumed within the “fiscal autonomy” factor, is “who is responsible for
judgments against the entity.” Tuveson v. Florida Governor’s Council on Indian Affairs,
Inc., 734 F.2d 730, 732 (11th Cir. 1984). “[T]he most important factor is how the entity
has been treated by the state courts.” Versiglio v. Board of Dental Examiners, ___ F.3d
___, 2011 WL 3759637 at *1 (11th Cir. 2011) (internal quotes omitted).
The DHR defendants do not undertake this analysis, which might be problematic
had the plaintiff challenged their status, but she does not. On the contrary, the complaint
[5]

describes ADHR as a state agency and BCDHR as a creature of state statute, and it
repeatedly refers to them as “the State Defendants.” (Doc. 1 at 8, 30-34). Both were
created by the Alabama Legislature, Ala. Code §§ 38-2-1, -8, and both partake of
sovereign immunity under state law. Ex parte Alabama Department of Human
Resources, 999 So. 2d 891, 896 (Ala. 2008) (ADHR); Ex parte Trawick, 959 So. 2d 51,
55-56 (Ala. 2006) (county DHR). Finally, a number of federal courts have determined
that Alabama state and county DHRs are protected by the Eleventh Amendment.5 Given
that the DHR defendants are clothed with sovereign immunity under state law, that they
are routinely found to be arms of the state for purposes of Eleventh Amendment analysis,
and that the plaintiff does not contest their status as such, the Court concludes that they
are shielded by the Eleventh Amendment.
The plaintiff correctly notes that a state may waive the protection of the Eleventh
Amendment and that Congress may abrogate it by appropriate legislation. (Doc. 22 at 810). Except with respect to his Title VI claim, however, he does not assert that either
breach of the sovereign immunity citadel has occurred. (Id. at 10-12).
With respect to Title VI, “[a] State shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit in Federal court for a
violation of … title VI of the Civil Rights Act of 1964 ..., or the provisions of any other
Federal statute prohibiting discrimination by recipients of Federal financial assistance.”
42 U.S.C. § 2000d-7(a)(1). “Section 2000d-7 unambiguously conditions the receipt of
federal funds on a waiver of Eleventh Amendment immunity to claims” identified

5

E.g., Thomas v. Buckner, 2011 WL 4071948 at *6 (M.D. Ala. 2011) (Watkins, C.J.);
Ford v. Child Support DHR, 2010 WL 2305305 at *1 (M.D. Ala. 2010) (Moorer, M.J.); Ziegler
v. Alabama Department of Human Resources, 710 F. Supp. 2d 1229, 1249 (M.D. Ala. 2010)
(Albritton, J.); Danzy v. State of Alabama, 2010 WL 1994902 at *1 (S.D. Ala. 2010) (DuBose,
J.); Johnson-Price v. Alabama Department of Human Resources, 2010 WL 1268095 at *4 (M.D.
Ala. 2010) (Thompson, J.); Mack v. Alabama Department of Human Resources, 201 F. Supp. 2d
1196, 1207 (M.D. Ala. 2002) (DeMent, J.); Liedel v. Juvenile Court, 707 F. Supp. 486, 487, 492
(N.D. Ala. 1989) (Haltom, J.).

[6]

therein. Garrett v. University of Alabama at Birmingham Board of Trustees, 344 F.3d
1288, 1291 (11th Cir. 2003); accord Sandoval v. Hagan, 197 F.3d 484, 493 (11th Cir.
1999), rev’d on other grounds, 532 U.S. 275 (2001). The DHR defendants neither
challenge this proposition6 nor deny the complaint’s assertion that they have received
federal funds triggering waiver. (Doc. 1 at 4). They have thus failed to show their
entitlement to Eleventh Amendment immunity as to the Title VI claim.
The Eleventh Amendment bars equitable relief against the state just as surely as it
bars monetary relief. Pennhurst, 465 U.S. at 120 (“[I]f a § 1983 action alleging a
constitutional claim is brought directly against a State, the Eleventh Amendment bars a
federal court from granting any relief on that claim.”) (emphasis added); id. at 100-01
(“This jurisdictional bar applies regardless of the nature of the relief sought,” including
“demands for the enforcement of equitable rights and the prosecution of equitable
remedies”) (internal quotes omitted). The plaintiff does not dispute this, but he notes that
the Eleventh Amendment does not bar actions for injunctive relief against state officers.
(Doc. 22 at 12). The problem is that the plaintiff has sued no state officers, only state
entities. The “state officers” to which he refers are the fictitious defendants, (id.), which
are subject to dismissal as discussed above.
In summary, all claims against the DHR defendants, other than for violation of
Title VI, are barred by sovereign immunity.

C. Section 1983.
The DHR defendants correctly note that a state is not a “person” capable of being
sued under Section 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71
(1989). They assume that any entity partaking of Eleventh Amendment immunity
likewise constitutes the “state” for purposes of this ruling, an assumption the Court will
6

On the contrary, they concede that Section 2000d-7 is a legitimate waiver provision.
(Doc. 17 at 23).

[7]

indulge for present purposes. The problem is that the DHR defendants have not shown
that the plaintiff does or must bring his Title VI claim against them through the vehicle of
Section 1983.7 Whatever arguments the DHR defendants could have made in this regard,
they have not done so, and the Court will not construct or support arguments on their
behalf.

D. Intended Beneficiaries.
In their reply brief, the DHR defendants assert that the plaintiff has “waived or
abandoned” his Title VI claim because he did not respond to an argument they made in
their principal brief, specifically, that the plaintiff and her grandchildren are not “intended
beneficiaries of the Act.” (Doc. 24 at 2). The threshold fatal defect with this position is
that the DHR defendants did not in their principal brief actually raise any such argument,8
and the plaintiff could scarcely have erred by not responding to an unarticulated
argument.9

E. Conspiracy Claims.
The only claims remaining for discussion are the Section 1985 and 1986 claims
against the Craigs. They argue that these claims are inadequately pleaded. (Doc. 17 at
16-17).
7

Count Seven mentions Section 1983 only as a possible “additional remedy,” and that
“with respect to the individually named defendants.”
8

Nothing remotely resembling this argument appears in the defendants’ brief except in a
section explicitly limited to the MEPA claim. (Doc. 17 at 11).
9

The Court leaves for another day the defendants’ position that the mere failure to
respond to an argument raised on motion to dismiss constitutes an abandonment of all claims to
which the argument relates, but it appears this has not been the Eleventh Circuit approach to
motions for summary judgment. United States v. One Piece of Real Property, 363 F.3d 1099,
1101 (11th Cir. 2004) (“[T]he district court cannot base the entry of summary judgment on the
mere fact that the motion was unopposed, but, rather, must consider the merits of the motion.”).

[8]

While “the liberal notice pleading standards embodied in Federal Rule of Civil
Procedure 8(a)(2) do not require that a plaintiff specifically plead every element of a
cause of action [, ...] it is still necessary that a complaint contain either direct or
inferential allegations respecting all the material elements necessary to sustain a recovery
under some viable legal theory.” Roe v. Aware Woman Center for Choice, Inc., 253 F.3d
678, 683 (11th Cir. 2001) (internal quotes omitted); accord American Federation of Labor
and Congress of Industrial Organizations v. City of Miami, 637 F.3d 1178, 1186 (11th
Cir. 2011).
“The elements of a cause of action under § 1985(3) are: (1) a conspiracy, (2) for
the purpose of depriving, either directly or indirectly, any person or class of persons of
the equal protection of the laws, or of equal privileges and immunities under the laws;
and (3) an act in furtherance of the conspiracy, (4) whereby a person is either injured in
his person or property or deprived of any right or privilege of a citizen of the United
States.” Trawinski v. United Technologies, 313 F.3d 1295, 1299 (11th Cir. 2002) (internal
quotes omitted). The Craigs deny that the complaint contains direct or inferential
allegations concerning the first two of these elements, but they offer no discussion of
Count Ten or the factual allegations that precede it. From the Court’s own review it
appears that the Trawinski standard is met and, absent explanation from the Craigs as to
how this is not so, the Court must reject their ipse dixit.
As noted in Part A, the defendants make a blanket Twombly-Iqbal objection but
fail to identify any particular deficiency, and the Court will not search for deficiencies on
their behalf.
Finally, the Craigs assert that Section 1985(3) claims are subject to a heightened
pleading standard. To the extent that Kearson v. Southern Bell Telephone & Telephone
Co., 763 F.2d 405 (11th Cir. 1985), and other cases may have imposed an elevated
pleading standard for such claims, the Craigs have not explained how that standard could
have survived Randall, discussed in Part A. Nor have the Craigs identified any failure of
the complaint to attain such a standard.
[9]

The Craigs’ only challenge to the Section 1986 counts is the observation that they
are derivative of the Section 1985(3) claim. Since the latter claim survives, the former
claims survive as well.

F. Shotgun Pleading.
As many scattershot pleading arguments as the defendants raise, they do not assert
that the complaint is a “‘shotgun’ pleading, in that each count incorporated by reference
all preceding paragraphs and counts of the complaint notwithstanding that many of the
facts alleged were not material to the claim, or cause of action, appearing in a count’s
heading.” Thompson v. RelationServe Media, Inc., 610 F.3d 628, 650 n.22 (11th Cir.
2010). Given that the 47-page complaint contains over 100 numbered paragraphs,
roughly 80 of which precede the first count, and that each of the 21 counts purports to
“adopt and incorporate all of the facts and allegations set forth above as if fully set forth
therein,” the classification of the complaint as a shotgun pleading cannot be doubted.
The defendants’ silence is no impediment to judicial action. “When faced with a
shotgun pleading, the trial court, whether or not requested to do so by the party’s
adversary, ought to require the party to file a repleader.” United States ex rel. Atkins v.
McInteer, 470 F.3d 1350, 1354 n.6 (11th Cir. 2006). Especially given that this action has
been reduced to one containing a single count against the DHR defendants and three
counts against the Craigs, such mandatory repleader is fully warranted.

CONCLUSION
For the reasons set forth above, the motion to dismiss is granted in part. Counts
2, 5 and 20 are dismissed without prejudice on the plaintiff’s request. Counts 13-18 are
dismissed without prejudice because the plaintiff admits they are brought exclusively
against fictitious defendants. Counts 1, 3, 4, 6, 8, 9, 10, 11, 12, 19 and 21 are dismissed
with prejudice as to the DHR defendants, which have unimpaired Eleventh Amendment

[10]

immunity; these counts, and Count 7, are dismissed without prejudice to the extent they
are brought against fictitious defendants and/or Sheila Stone.
The motion to dismiss is denied in all other respects. Surviving the motion to
dismiss are the Title VI claim (Count 7) as against the DHR defendants and the
conspiracy claims (Counts 10-12) as against the Craigs.
The plaintiff is ordered to file and serve, on or before October 14, 2011, an
amended complaint that eliminates the dismissed counts, eliminates all factual allegations
that do not relate to one or more of the surviving counts, and that honors the Eleventh
Circuit’s proscription against shotgun pleadings. Should the plaintiff fail to comply,
either by filing nothing or by filing a pleading that does not satisfactorily address these
matters, “the court should strike his pleading or, depending on the circumstances, dismiss
his case and consider the imposition of monetary sanctions.” Byrne v. Nezhat, 261 F.3d
1075, 1133 (11th Cir. 2001).
DONE and ORDERED this 29th day of September, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

[11]