Glassco et al v. Arkansas, State of et al

Filing 15

MEMORANDUM OPINION AND ORDER granting 9 MOTION to Dismiss filed by Patricia Nunn Brown, Mike Beebe, and Grant Tennille, and also dismisses pltfs' claims against the State of Arkansas and the AEDC; pltfs' complaint is dismissed for lack of jurisdiction and for failure to state a claim; judgment will be entered accordingly. Signed by Judge Susan Webber Wright on 2/15/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

ANTON D. GLASSCO and
JEROME A. JAMES II;

*
*
*
Plaintiffs,
*
*
vs.
*
*
STATE OF ARKANSAS; MIKE BEEBE;
*
ARKANSAS ECONOMIC DEVELOPMENT *
COMMISSION; GRANT TENNILLE; and
*
PATRICIA NUNN BROWN;
*
*
Defendants.
*

No. 4:11CV00860 SWW

Memorandum Opinion and Order
Defendants Mike Beebe, Grant Tennille, and Patricia Nunn Brown, sued in their official
capacities only, filed a motion to dismiss to which plaintiffs responded. For the reasons stated
below, the motion is granted.
Background1
Plaintiffs Anton D. Glassco and Jerome A. James, II, are owners of Clean Smile, Inc
(“Clean Smile”). They participated in a minority ownership program of the Arkansas Economic
Development Commission (AEDC”) under which Clean Smile was certified as a minority
business enterprise. When plaintiffs attempted to re-certify Clean Smile in the AEDC program
in September 2009, Defendant Patricia Nunn Brown, the director of the Small and Minority
Business Division of the AEDC, asked for the name and telephone number of Clean Smile’s
contact at General Motors, a company to whom Clean Smile was allegedly selling its

1

See Pls.’ Comp.

technology. Plaintiffs refused to supply the contact information, arguing it was confidential and
proprietary, and not required by statute for re-certification. Defendant Brown nonetheless
continued to request the information and plaintiffs continued to refuse to release it.
The AEDC refused to recertify Clean Smile and plaintiffs allege the decision not to
recertify was based on illegal race discrimination. They bring their claim pursuant to Title VI of
the Civil Rights Act, 42 U.S.C. § 1983, the Commerce Clause, and the Fourteenth Amendment
to the United States Constitution. Defendants move for dismissal based on lack of subject matter
jurisdiction and failure to state a claim.
Discussion
This is the second lawsuit plaintiffs have filed concerning the AEDC’s refusal to recertify
Clean Smile as a minority enterprise. In the first case, filed in July 2011, plaintiffs alleged the
corporation had been certified as a minority business enterprise and that defendants illegally
refused to recertify the corporation. The Court dismissed the complaint, finding plaintiffs had no
standing to prosecute a civil rights claim because they had not personally suffered a direct injury
that did not derive from an injury to the corporation.2 Now plaintiffs allege defendants illegally
failed to recertify plaintiffs themselves as a minority business enterprise.3
A party invoking federal jurisdiction must establish that he has met both constitutional
and prudential standing. Warth v. Seldin, 422 U.S. 490, 498 (1975). To satisfy the constitutional
requirement, a plaintiff must establish that he suffered an “injury in fact” (that is, the invasion of
2

See Clean Smile. Inc. et al. v. Arkansas Economic Dev. Corp. et al., 4:11cv566 SWW,
docket entry 30.
3

Plaintiffs allege that “Anton Glassco were accepted into a minority ownership program of the
AEDC in 2006 certifying that at least 51% of a company was owned by them as minorities.” Docket
entry 1 at ¶ 10.

2

a legally protected interest); a causal connection between the injury and the conduct complained
of; and a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992). “[T]he plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to relief on the legal rights or interests of third
parties.” Warth, 422 U.S. at 499.
Defendants argue plaintiffs lack standing for three reasons: 1) the doctrine of judicial
estoppel bars plaintiffs from contradicting the allegation they made in the first lawsuit; 2) under
Arkansas law, it is businesses not people who are certified as minority business enterprises; and
3) the public record leaves no doubt that it was Clean Smile, the corporation, that was certified
as a minority business enterprise.
The Court finds plaintiffs lack standing. It is clear that under Arkansas law, it is
businesses, not people, that may be certified as minority business enterprises. The Arkansas
Minority Business Development Act defines a “minority business enterprise” as “ a business that
is at least fifty-one percent (51%) owned by one (1) or more minority persons[.]” Ark. Code
Ann. § 15-4-303(3) (Supp. 2011). Further, the certificate issued by the AEDC shows that it was
Clean Smile, not the plaintiffs, that was certified as a minority enterprise. See Defs.’ Mot. To
Dismiss, Attach. 1.4 As the Court found in the previous lawsuit, “[A] corporate officer cannot
maintain a personal action against a third party for harm caused to the corporation, unless the
officer alleges a direct injury not derivative of the company’s injury.” Alternate Fuels, Inc. v.

4

When addressing a motion to dismiss, the court “may consider the pleadings themselves,
materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record.”
Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011). Such matters of public record include
documents filed in previous lawsuits as well as authenticating affidavits. Levy v. Ohl, 477 F.3d 988, 991
(8th Cir. 2007).

3

Cabanas, 538 F.3d 969, 973 (8th Cir. 2008). Because plaintiffs fail to show they have standing to
pursue their claims, the Court lacks subject matter jurisdiction.
The Court further lacks subject matter jurisdiction over plaintiffs’ claims for money
damages against defendants. The Eleventh Amendment prohibits individuals from suing a state
or a state agency for damages. Papasan v. Allain, 478 U.S. 265, 276 (1986). Further, the
Eleventh Amendment bars a suit against state officials when sued in their “official capacities.”
An action for damages against state officials in their “official capacities” is a suit against the
state. See Kentucky v. Graham, 473 U.S. 159 (1985).4
As to plaintiffs’ claims for prospective relief, defendants argue they should be dismissed
for failure to state a claim for relief. Plaintiffs allege defendants, acting under color of state law,
violated 42 U.S.C. § 1983, the Interstate Commerce Clause, and the Fourteenth Amendment to
the United States Constitution. See Compl. at 6, Count II. They complain defendant Beebe
negligently failed to supervise the actions of his appointees and the departments they run, that
defendant Tennille failed to properly supervise defendant Brown, and defendant Brown’s actions
proximately caused their injuries.
Section 1983 “merely provides a mechanism for enforcing individual rights ‘secured’
elsewhere, i.e., rights independently ‘secured by the Constitution and laws’ of the United States.”
Gonzago Univ. v. Doe, 536 U.S. 273, 285 (2002). As a result, “one cannot go into court and

4

Plaintiffs name the State of Arkansas and the AEDC as defendants. The record reflects that
plaintiffs have not served the State or the AEDC. Nevertheless, the Court may raise the issue of
jurisdiction at any time. The Eleventh Amendment provides states and state agencies with immunity
from suits brought by their own citizens. Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir.
2007). Therefore, plaintiffs’ claims against the State and the AEDC should be dismissed based upon
sovereign immunity as well as lack of standing.

4

claim a ‘violation of § 1983' - for § 1983 by itself does not protect anyone against anything.”
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979).

To the extent that

plaintiffs allege defendants violated § 1983, their claims are dismissed for failure to state a
claim.
To state a claim under § 1983, a plaintiff must allege that a defendant, acting under color
of state law, deprived him of a right, privilege, or immunity secured by the United States
Constitution or by federal law. 42 U.S.C. § 1983. Although detailed factual allegations are not
required, a complaint must include enough facts to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007)). “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.” Id. Pro se complaints are liberally construed, but they still must
allege “sufficient facts to support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th
Cir. 2004).
Here, plaintiffs allege defendants violated the Fourteenth Amendment by negligently
failing to re-certify the corporation as a minority business enterprise. The Due Process Clause
of the Fourteenth Amendment is not implicated by the negligent act of an official causing
unintended loss or injury to life, liberty, or property. Daniels v. Williams, 474 U.S. 327, 328
(1986).

Further, plaintiffs state no facts to establish a violation of the Equal Protection Clause

of the Fourteenth Amendment. See Flowers v. City of Minneapolis, 558 F.3d 794, 798 (8th
Cir.2009)(plaintiff must show that he was treated differently than others who were in all relevant
respects similarly situated).

5

The Court further finds plaintiffs fail to state a claim for relief under the Commerce
Clause of the United States Constitution. “The dormant commerce clause prohibits states from
enacting laws that discriminate against or unduly burden interstate commerce.” Jones v. Gale,
470 F.3d 1261, 1267 (8th Cir. 2006)(citation and internal quotation marks omitted).
“Discrimination in this context refers to differential treatment of in-state and out-of-state
economic interests that benefits the former and burdens the latter.” Id. (citation and internal
quotation marks omitted). Plaintiffs, who state they are residents of Arkansas, make no
allegation that Arkansas officials are discriminating against their economic interests in favor of
the economic interests of Arkansas residents.
Conclusion
For the reasons stated, the Court grants defendants’ motion to dismiss [docket entry 9],
and also dismisses plaintiffs’ claims against the State of Arkansas and the AEDC. Judgment will
be entered accordingly.
IT IS THEREFORE ORDERED that plaintiffs’ complaint is dismissed for lack of
jurisdiction and for failure to state a claim.
DATED this 15th day of February, 2012.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

6