Shepherd v. Corizon Health, Inc. et al
ORDER ADOPTING the 68 REPORT AND RECOMMENDATIONS, as supplemented by this order, re: 58 MOTION to Dismiss filed by Alabama Department of Corrections. ADOC's motion to dismiss all demands against it for injunctive relief is granted; in all other respects, ADOCs motion to dismiss is denied. Signed by Chief Judge William H. Steele on 4/12/2013. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LARRY ROGER SHEPHERD, etc.,
CORIZON, INC., et al.,
) CIVIL ACTION 12-0290-WS-N
This matter is before the Court on the report and recommendation
(“R&R”) of the Magistrate Judge that the motion to dismiss filed by defendant
Alabama Department of Corrections (“ADOC”) be denied. (Doc. 68). ADOC has
filed an objection to the R&R, the plaintiff has filed a response, (Doc. 80), and the
matter is ripe for resolution.
ADOC is named as a defendant in four counts of the amended complaint:
two for violations of Title II of the Americans with Disabilities Act and two for
violations of Section 504 of the Rehabilitation Act of 1973. (Doc. 25 at 27-34).
ADOC’s motion to dismiss raises two arguments: (1) that the claims against it are
barred by the Eleventh Amendment; and (2) that the plaintiff’s demand for
injunctive relief is moot. (Doc. 58).
Eleventh Amendment immunity may of course be validly abrogated by
Congress. “[I]nsofar as Title II [of the ADA] creates a private cause of action for
damages against the States for conduct that actually violates the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity.” United States v.
Georgia, 546 U.S. 151, 159 (2006). Count IX alleges that ADOC’s failure and
refusal to provide the plaintiff with cataract surgery violates the Eighth and
Fourteenth Amendments. (Doc. 25, ¶ 123). Count XI does not expressly allege
that ADOC’s interference with the plaintiff’s ability to use the toilet violates the
Constitution, but ADOC did not argue to the Magistrate Judge that such conduct
does not or cannot do so.
Indeed, ADOC did not acknowledge the possibility of abrogation at all in
its one-page, generalized discussion of sovereign immunity. (Doc. 58 at 2). Even
after the plaintiff addressed the Georgia case in his brief in opposition, (Doc. 63 at
4-8), ADOC elected to file no reply brief. Thus, the Magistrate Judge correctly
recommended denial of the motion to dismiss the ADA counts.
A bit late, ADOC now raises a number of objections to this portion of the
R&R. First, it argues that, even though couched as claims under the ADA, Counts
IX and XI are really constitutional claims, “no matter how you look at it.” (Doc.
75 at 1). Second, ADOC argues that it is “impossible” for it to have violated the
Eighth or Fourteenth Amendment (as may or may not be required for Title II
abrogation),1 because the amended complaint alleges no personal participation by
ADOC employees with the plaintiff’s medical treatment or lack thereof. Third,
ADOC suggests that the Georgia case “is distinguishable from this action.”
Fourth, ADOC claims that the Supreme Court has abandoned the approach of
United States v. Georgia in favor of a more restrictive one the plaintiff cannot
meet. Finally, ADOC asserts that abrogation under the ADA cannot occur unless
the plaintiff sues a state agent in his or her individual capacity. (Doc. 75 at 1, 3-7).
The short answer to ADOC’s objections is that they come too late. “[A]
district judge has discretion to decline to consider a party’s argument when that
argument was not first presented to the magistrate judge.” Williams v. McNeil,
557 F.3d 1287, 1292 (11th Cir. 2009). In particular, a district judge has discretion
not to consider an argument first raised after a magistrate judge has issued an
R&R. Id. The Williams Court noted the negation of the efficiencies of referrals,
The Georgia Court declined to decide whether or to what extent Title II validly
abrogates Eleventh Amendment immunity as to conduct that does not violate the
Fourteenth Amendment. 546 U.S. at 159.
and the possibility of gamesmanship, that would occur could litigants foist on
district courts arguments and evidence they neglected to present to the magistrate
judge. Id. at 1291-92. An adequate explanation by ADOC for its failure to
present these arguments to the Magistrate Judge might persuade the Court to
consider them despite these concerns, but ADOC offers none. Accordingly, and
as it has done repeatedly in other cases,2 the Court in its discretion declines to
consider ADOC’s tardy arguments.3
Eleventh Amendment immunity may also be lost by waiver. “Section
2000d-7 unambiguously conditions the receipt of federal funds on a waiver of
Eleventh Amendment immunity to claims under section 504 of the Rehabilitation
Act. By continuing to accept federal funds, the state agencies have waived their
immunity.” Garrett v. University of Alabama at Birmingham Board of Trustees,
344 F.3d 1288, 1293 (11th Cir. 2003). The amended complaint alleges that ADOC
receives federal funding. (Doc. 25, ¶ 12). As with the ADA claims, ADOC did
not address waiver in its opening brief and, after the plaintiff addressed Garrett
and the allegations of his complaint, ADOC filed no reply brief. Thus, the
Magistrate Judge correctly recommended denial of the motion to dismiss the
Section 504 counts.
In its objections, ADOC asserts that Garrett has been undermined by
Sossamon v. Texas, 131 S. Ct. 1651 (2011). (Doc. 75 at 8). Again, ADOC raised
See Jackson v. Select Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1282 (S.D.
Ala. 2009); Morrison v. United States, 2012 WL 4711863 at *3 (S.D. Ala. 2012); Johns
v. United States, 2011 WL 6141057 at *3 (S.D. Ala. 2011); United States v. Knight, 2011
WL 4701810 at *3 (S.D. Ala. 2011); United States v. Ezell, 2011 WL 772884 at *4 (S.D.
Ala. 2011); Soun v. United States, 2010 WL 3724099 at *1 (S.D. Ala. 2010); White v.
Thyssenkrupp Steel USA, LLC, 2010 WL 204231 at *2 (S.D. Ala. 2010).
At least four of ADOC’s new arguments are patently wrong in any event.
no such argument before the Magistrate Judge, and the Court declines to consider
The amended complaint prays that the plaintiff “be awarded injunctive
relief requiring appropriate medical treatment and accommodation of his
disabilities.” (Doc. 25 at 36). ADOC argued before the Magistrate Judge that the
plaintiff’s release from state custody on medical furlough rendered moot this
demand for relief. (Doc. 58 at 3-4). The plaintiff agreed that his release “does
likely moot any claim for injunctive relief.” (Doc. 63 at 12). The Magistrate
Judge concurred but noted that the plaintiff’s demand for damages is not mooted
by this development. (Doc. 63 at 15-16). In its objections, ADOC argues that it
should thus receive dismissal of the claims against it to the extent they seek
injunctive relief. (Doc. 68 at 8-9). The plaintiff offers no discernible response.
The Court agrees that any demand for injunctive relief against ADOC should be
dismissed as moot.
After due and proper consideration of all portions of the file relevant to the
issues raised, and a de novo determination of those portions of the R&R to which
objection is made, the recommendation of the Magistrate Judge made under 28
U.S.C. § 636(b)(1)(B), as supplemented by the foregoing material, is adopted as
the opinion of the Court. ADOC’s motion to dismiss all demands against it for
injunctive relief is granted; in all other respects, ADOC’s motion to dismiss is
DONE and ORDERED this 12th day of April 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
That said, Sossamon ruled only that the reference in the residual clause of
Section 2000d-7 to “the provisions of any other Federal statute prohibiting discrimination
by recipients of Federal financial assistance” did not eliminate immunity as to a statute
that was not unequivocally a statute prohibiting discrimination. 131 S. Ct. at 1662. But
Section 2000d-7 explicitly provides that “[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 section 504 of the Rehabilitation Act of 1973 ….” Nothing in
Sossamon undermines Garrett’s ruling as to Section 504.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?