Weaver v. Hobbs et al

Filing 22

OPINION AND ORDER granting 16 and 21 defendants' motion to dismiss Weaver's First Amended Complaint. Judgment will enter accordingly. Signed by Judge Susan Webber Wright on 12/17/2013. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
MAE WEAVER,
Plaintiff,
vs.

RAY HOBBS, Director of the Arkansas
Department of Correction, and DANNY
BURL, Individually and as Agency
Representative,
Defendants.

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No. 2:13-cv-00048-SWW

OPINION AND ORDER
Mae Weaver, a black female and former employee of the Arkansas Department of
Correction (ADC), brings this action pursuant to 42 U.S.C. §§ 1981 and 1983 against Ray
Hobbs, Director of the ADC, and Danny Burl, Warden of the East Arkansas Regional
Unit of the ADC, alleging employment discrimination. Weaver claims that her
Fourteenth Amendment right to equal protection was violated when the ADC terminated
her employment after she used all available leave under the Family and Medical Leave
Act (FMLA) and did not return to work, and that an alleged on-the-job injury was caused
by acts that violated her Fourteenth Amendment right to substantive due process.
The matter is before the Court on motion [doc.#’s 16, 21] of defendants to dismiss
Weaver’s First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6).1 Weaver has

1

As “[i]t is well-established that an amended complaint supercedes an original complaint
and renders the original complaint without legal effect,” In re Wireless Tel. Fed. Cost Recovery
Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005), Weaver’s First Amended Complaint is the sole

responded in opposition to defendants’ motion. For the reason that follow, the Court
grants defendants’ motion to dismiss Weaver’s First Amended Complaint.
I.
In her First Amended Complaint, Weaver alleges that she was assigned to work in
a guard tower and that her job duties required her to lift weapons from the ground to the
top of the tower. She alleges that she injured her shoulder when she was required to lift
up to the guard tower a basket of weapons that weighed more than ten pounds–a task for
which she had not been trained–and that this injury necessitated that she take FMLA
leave.
Weaver alleges that her employment was terminated and contract rights thereby
interfered with when she did not return to work after using all the FMLA leave available
to her. She alleges she was terminated because of an unidentified policy that she claims
had a disparate impact on black and female employees of the ADC and that unnamed
white employees of the ADC were treated more favorably thereby violating her
Fourteenth Amendment right to equal protection. She also alleges that her work-place
injury was the result of a task improperly assigned to her, and that this task assignment
violated her Fourteenth Amendment right to substantive due process.
II.
Defendants move to dismiss Weaver’s First Amended Complaint on the following

basis of this action.
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grounds: (1) Weaver’s 42 U.S.C. §§ 1981 and 1983 claims against defendants in their
official capacities are barred by the Eleventh Amendment; (2) the First Amended
Complaint fails to state an equal protection claim against the defendants because it relies
upon a formulaic recitation and provides no facts that would tend to demonstrate that the
defendants treated similarly situated individuals differently; and (3) the First Amended
Complaint fails to state a substantive due process claim because, taking even the
conclusory allegations as facts, the work place injury and attendant circumstances that are
alleged do not shock the conscience.
A.
In reviewing a motion to dismiss, the Court must accept as true all factual
allegations in the complaint, but is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. “Nor does a complaint suffice if it “tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). To survive a motion to
dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
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possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556). A well-pleaded complaint may proceed even if it appears that actual proof of those
facts is improbable and that recovery is very remote and unlikely. Twombly, 550 U.S. at
556. A complaint cannot, however, simply leave open the possibility that a plaintiff
might later establish some set of undisclosed facts to support recovery. Id. at 561.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
B.
1.
The Court first addresses Weaver’s claims against Hobbs and Burl in their official
capacities. “A suit against a public employee in his or her official capacity is merely a
suit against the public employer.” Campbell v. State of Iowa, Third Judicial Dist. Dept.
of Correctional Services, 702 F.3d 1140, 1141 (8th Cir. 2013) (citation omitted). See also
Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (per curiam) (“A suit against state
employees in their official capacities is the functional equivalent of a suit against the
State.”).2 As this Court has recently noted, with the exception of claims for prospective
injunctive relief, see Monroe v. Arkansas State University, 495 F.3d 591, 594 (8th Cir.

2

“The ADC is a state agency that is ‘the sole creation of the state’ and has ‘no separate
identity’ from the state and cannot be stripped of its official character.” Rucker v. Banks, No.
5:12-cv-00088, 2013 WL 1005649, *3 (E.D. Ark. March 13, 2013) (quoting Click v. Henderson,
855 F.2d 536, 540 (8th Cir. 1988)).
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2007), sovereign immunity of the States recognized in the Eleventh Amendment bars any
suit brought in federal court against a state or state agency, regardless of the nature of the
relief sought, unless Congress has abrogated the states' immunity or a state has consented
to suit or waived its immunity. Collins v. Arkansas Bd. of Embalmers & Funeral
Directors, No. 3:12-cv-00123-SWW, 2013 WL 2405302, *5 (E.D. Ark. May 31, 2013)
(citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 74 (1996); Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Edleman v. Jordan, 415 U.S.
651, 663 (1974)). The State of Arkansas has not waived its immunity, nor did Congress
abrogate that immunity when it enacted 42 U.S.C. §§ 1981 and 1983. Singletary v.
Missouri Dept. of Corrections, 423 F.3d 886, 890 (8th Cir. 2005); Burk v. Beene, 948 F.2d
489, 492-93 (8th Cir. 1991)). Thus, sovereign immunity bars Weaver’s claims against
Hobbs and Burl in their official capacities.3
2.
The Court now turns to Weaver’s § 1983 claim for equal protection violation
under the Fourteenth Amendment. Weaver alleges that she “was treated differently on
the basis of her race and sex ... because other white employees were not terminated or

3

Weaver states that she “seeks reinstatement to her position with the ADC and other
equitable relief” and that “such claim and relief is not barred by the doctrine of sovereign
immunity.” Although reinstatement is among those forms of prospective equitable relief that a
plaintiff may seek from a state official despite the Eleventh Amendment, Hopkins v. Saunders,
199 F.3d 968, 977 (8th Cir. 1999), Weaver, as will be seen, fails to plead enough facts in support
of any of her claims to state a claim to relief that is plausible on its face. It thus follows, and the
Court so finds, that Weaver has not pled enough facts that would demonstrate she is eligible for
reinstatement or other equitable relief.
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punished in the same manner for protesting job assignments consistent with training.”
First Am. Compl. ¶ 31.
“[T]he Equal Protection Clause requires that the government treat such similarly
situated persons alike.” Hager v. Arkansas Dept. of Health, — F.3d —, 2013 WL
6038991, *2 (8th Cir. Nov. 14, 2013) (citations omitted). Absent evidence of direct
discrimination, courts apply the McDonnell Douglas burden-shifting analysis to claims of
employment discrimination under the Equal Protection Clause. Id. “Under McDonnell
Douglas, a prima facie case of discrimination requires that a plaintiff prove: ‘(1)
membership in a protected group; (2) qualification for the job in question; (3) an adverse
employment action; and (4) circumstances that support an inference of discrimination.’”
Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)).
Weaver’s First Amended Complaint does not state a plausible equal protection
claim based on race or gender because it alleges only generally that other unidentified
white (and, presumably, male) employees were given different treatment. As noted by
defendants, Weaver does not allege any fact suggesting that either defendant had any role
in decisions pertaining to the other employees, she does not identify allegedly comparable
employees by name, position, or job duty, does not identify the circumstances under
which they were disciplined differently, does not describe the time frame within which
the events occurred, and does not name the decision makers involved. Weaver’s
allegation that she is the victim of race and gender discrimination fails to give defendants
fair notice of the claim and the grounds upon which such alleged discrimination rests, and
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her conclusory assertion that she was discharged under circumstances similarly situated
white employees were not “imports legal language couched as a factual allegation and
fails to raise a right to relief above the speculative level.” Hager, — F.3d —, 2013 WL
6038991, *4 (citing Twombly, 550 U.S. at 555).
3.
In support of her § 1981 claim, which the Court construes as being brought under §
1983, see Lockridge v. Bd. of Trustees of Univ. of Ark., 315 F.3d 1005, 1007 (8th Cir.
2003) (en banc) (a claim alleging a violation of § 1981 may not be brought directly
against a state actor, but must be brought under § 1983), Weaver asserts that “each
defendant participated in a scheme to interfere with Weaver’s right of employment on the
basis of her race,” that “each defendant conspired to interfere with Weaver’s contract
rights,” and that “each defendant acted deliberately and intentionally to carry out a
scheme to harm Weaver.” First Am. Compl. ¶¶ 39, 41, 44. Weaver’s § 1981 claim
appears to be based on the same allegations underlying her § 1983 equal protection claim
(at least insofar as it concerns alleged race discrimination).4 Accordingly, Weaver’s §
1981 claim fails for the same reason as does her § 1983 equal protection claim. But to the
extent Weaver’s § 1981 claim is based on allegations separate and distinct from those

4

One way for a plaintiff to show a defendant’s intent to discriminate under § 1981 is to
show that he or she was treated differently from similarly situated nonmembers of the protected
class. Harris v. Hayes, 452 F.3d 714, 718 (8th Cir. 2006) (citation omitted). See also Gratz v.
Bollinger, 539 U.S. 244, 276 n. 23 (2003) (“[P]urposeful discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment will also violate § 1981.”).
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underlying her § 1983 equal protection claim, Weaver’s conclusory assertions that
defendants schemed and conspired to interfere with her employment and contract rights
on the basis of her race and acted deliberately and intentionally to carry out a scheme to
harm her still fails to give defendants fair notice of the claim and the grounds upon which
such alleged discrimination rests and “imports legal language couched as a factual
allegation and fails to raise a right to relief above the speculative level.” Hager, — F.3d
—, 2013 WL 6038991, *4 (citing Twombly, 550 U.S. at 555).
4.
Finally, the Court addresses Weaver’s § 1983 claim for substantive due process
violation under the Fourteenth Amendment. “The Due Process Clause does not require
that municipal employees be guaranteed certain minimal levels of safety and security in
the workplace.” Fields v. Abbott, 652 F.3d 886, 890 (8th Cir. 2011) (citing Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 127 (1992)). “And ‘nothing in the language of the
Due Process Clause itself requires the State to protect the life, liberty, and property of its
citizens against invasion by private actors.’” Id. (quoting DeShaney v. Winnebago Cnty.
Dep’t. of Soc. Servs., 489 U.S. 189, 195 (1989)). Substantive due process does, however,
require a state to protect individuals that are in its custody and the state also “owes a duty
to protect individuals if it created the danger to which the individuals are subjected.” Id.
(quoting Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005)).
Weaver apparently relies on the state-created-danger theory of liability in support
of her substantive due process claim. To succeed on such a theory, Weaver must prove
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(1) that she was a member of “a limited, precisely definable group,” (2) that the
municipality's conduct put her at a “significant risk of serious, immediate, and proximate
harm,” (3) that the risk was “obvious or known” to the municipality, (4) that the
municipality “acted recklessly in conscious disregard of the risk,” and (5) that in total, the
municipality's conduct “shocks the conscience.” Id. at 891.
Concerning the last factor–conduct that shocks the conscience–the Eighth Circuit
in Fields noted that
[t]he constitutional concept of conscience shocking duplicates no traditional
category of common-law fault. Actionable substantive due process claims
involve a level of abuse of power so brutal and offensive that they do not
comport with traditional ideas of fair play and decency. Under the statecreated-danger theory, negligence and gross negligence cannot support a §
1983 claim alleging a violation of substantive due process rights. And proof
of intent to harm is usually required, but in some cases, proof of deliberate
indifference, an intermediate level of culpability, will satisfy this
substantive due process threshold.
Id. (internal quotations, citations and brackets omitted).
The Court finds that Weaver has failed to allege conscience-shocking conduct on
the part of defendants.5 Weaver acknowledges that hauling weapons up to the guard
tower was part of her job with the ADC and her remedy for the on-the-job injury she

5

The Court thus need not address the other factors relevant to a state-created-danger
theory of liability. See id. (“Because we conclude that, even after viewing the facts in the light
most favorable to Fields, the Miller County individual defendants' conduct was not conscience
shocking and therefore did not violate Fields's substantive due process rights, we will focus our
analysis on that element and will not address the other four Hart factors.”).
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claims she suffered was to file a workers’ compensation claim, which she did.6 “The
ordinary incidents of the employment relationship, and the jobs that public employees are
hired to do, are not normally subject to substantive due process analysis,” Tucker v. City
of Hot Springs, Arkansas, 204 F.3d 783 (8th Cir. 2000) (per curiam), and nothing in
Weaver’s First Amended Complaint alleges a substantive due process claim that is
plausible on its face. Cf. id. (city’s action of requiring an employee to enter and inspect
buildings that were dangerous, unsanitary, and unhealthy, although special safety
equipment had not yet arrived, did not violate substantive due process, because the
employee was not in a custodial setting, he was not ordered to enter the building under
threat of losing his job, and inspecting buildings in question was part of his regular task;
Court noted that “[i]f the conditions of his employment harmed him, his remedy would be
under the state workers’ compensation statute.”).
III.
For the foregoing reasons, the Court grants defendants’ motion [doc.#’s 16, 21] to
dismiss Weaver’s First Amended Complaint [doc.#15]. The Court will enter judgment
accordingly.
IT IS SO ORDERED this 17th day of December 2013.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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The Arkansas Court of Appeals affirmed the judgment of the Arkansas Workers’
Compensation Commission denying Weaver’s claim for benefits. Weaver v. Arkansas Dept. of
Correction, 2013 Ark. App. 158.
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