Pinkston v. University of South Florida Board of Trustees et al
Filing
198
ORDER granting in part and denying in part 166 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 167 Motion to Dismiss for Failure to State a Claim. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 6/9/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RACHEL PINKSTON,
Plaintiff,
v.
Case No. 8:15-cv-1724-T-33TBM
UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon Defendants Randy
Larsen, David Merkler, and Matthew Battistini’s Motion to
Dismiss Plaintiff’s Second Amended Verified Complaint (Doc.
# 166), as well as Defendant University of South Florida Board
of Trustees’ Motion to Dismiss Plaintiff’s Second Amended
Verified Complaint (Doc. # 167). Plaintiff Rachel Pinkston
filed a response to both Motions on May 26, 2016. (Doc. #
178). With leave of Court, Larsen, Merkler, Battistini, and
USF filed a reply on June 2, 2016. (Doc. # 188). For the
reasons herein, the Court grants the Motions in part.
I.
Background
While enrolled at Florida Memorial University, Pinkston
was encouraged to transfer to USF by a recruiter. (Doc. # 159
1
at 2). Pinkston subsequently enrolled at USF in the summer
session of 2011. (Id.). When Pinkston transferred to USF she
had earned 74 credit hours at Florida Memorial University.
(Id.). And, while at USF, Pinkston earned 117 credit hours.
(Id. at 2-3). Pinkston’s chosen major was chemistry with an
emphasis in biochemistry. (Id. at 3).
Larsen was a tenured professor at USF and the department
chair of the chemistry department. (Id.). Merkler was also a
tenured
professor
with
the
chemistry
department
and
Battistini was his graduate student. (Id.). Battistini was
also Merkler’s teaching assistance for a basic biochemistry
lab course in which Pinkston was registered. (Id.). Larsen,
Merkler, and Battistini are all Caucasian males, whereas
Pinkston is an African-American female. (Id. at 2).
Pinkston further alleges that “her outstanding work
[was] systematically graded down by the named Defendants.”
(Id. at 3). As to the basic biochemistry lab course for which
Merkler served as teaching assistant, Pinkston alleges she
received a “grade of 74.2% in the course, which was designated
as a ‘B-’ for the Basic Biochemistry Laboratory.” (Id.).
Thereafter,
Pinkston
purchased
graduation
regalia
and
participated in the graduation ceremony held at USF on May 1,
2015. (Id. at 3-4). Then, on May 15, 2015, Pinkston received
2
an email indicating “she was ‘being denied graduation’ and
her ‘degree was being rescinded.’” (Id. at 5). According to
Pinkston, her degree was “rescinded” because Larsen, Merkler,
and Battistini changed her grade from a B- to a C-. (Id.).
Larsen, Merkler, and Battistini allegedly effected the grade
change “as a last act of retaliation out of desperation.”
(Id.).
Pinkston then instituted this action on July 24, 2015.
(Doc. # 1). Before the Court held its Case Management and
Scheduling Conference, Pinkston filed an Amended Complaint.
(Doc. # 18). However, upon the motions of Larsen, Merkler,
and Battistini (Doc. # 24), and USF (Doc. # 26), the Amended
Complaint
was
dismissed.
(Doc.
##
133-34).
Pinkston
was
granted leave to file a second amended complaint though, which
she did on April 22, 2016. The Second Amended Complaint brings
the following counts:
Count I—Discrimination under Title IX against USF;
Count II—Retaliation under Title IX against USF;
Count III—Discrimination under 42 U.S.C. § 1981
against all Defendants;
Count IV—Retaliation under 42 U.S.C. § 1981 against
all Defendants;
Count V(a)—Discrimination under 42 U.S.C. § 1983
against all Defendants; and
Count V(b)—Retaliation under 42 U.S.C. § 1983
against all Defendants.
3
(Doc. # 159 at 8, 10, 12, 13, 15, 16).1 Larsen, Merkler, and
Battistini moved to dismiss the Second Amended Complaint, as
did USF. The Motions are ripe for review.
II.
Standard of Law
The pending Motions are brought pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). A 12(b)(1)
motion to dismiss may assert either a facial or factual
attack. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.
1990). A facial attack “require[s] the court merely to look
and see if the plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in [the]
complaint are taken as true for purposes of the motion.” Id.
at 1529 (original alterations and citation omitted). “On a
facial attack, a plaintiff is afforded safeguards similar to
those provided in opposing a Rule 12(b)(6) motion—the court
must consider the allegations of the complaint to be true.”
Id. (citation omitted).
In
existence
contrast,
of
irrespective
a
factual
subject
of
the
matter
pleadings,
attack
“challenge[s]
jurisdiction
and
matters
in
the
fact,
outside
the
1
The Second Amended Complaint includes two Counts labeled as
Count V. Thus, to avoid confusion, the Court refers to the
Counts as Counts V(a) and V(b).
4
pleadings, such as testimony and affidavits, are considered.”
Id. (citation and internal quotations marks omitted). “In
short, no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Id. (citation omitted).
On a motion to dismiss brought under Rule 12(b)(6), this
Court accepts as true all the allegations in the complaint
and
construes
them
in
the
light
most
favorable
to
the
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262
(11th
Cir.
2004).
Further,
this
Court
favors
the
plaintiff with all reasonable inferences from the allegations
in the complaint. Stephens v. Dep’t of Health & Human Servs.,
901 F.2d 1571, 1573 (11th Cir. 1990) (stating “[o]n a motion
to dismiss, the facts stated in [the] complaint and all
reasonable inferences therefrom are taken as true”). However:
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
5
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “[t]he scope of review must be limited to
the four corners of the complaint.” St. George v. Pinellas
Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). A “court may
consider a document attached to a motion to dismiss without
converting the motion into one for summary judgment if the
attached document is (1) central to the plaintiff’s claim and
(2) undisputed. In this context, ‘undisputed’ means that the
authenticity of the document is not challenged.” Day v.
Taylor,
400
F.3d
1272,
1276
(11th
Cir.
2005)
(internal
citation omitted).
III. Analysis
As a preliminary matter, the Court briefly addresses
Pinkston’s arguments that the Motions should be denied for
failure to comply with the Federal Rules of Evidence, Federal
Rules of Civil Procedure, and Local Rules. Pinkston asserts
the Motions should be denied for putatively violating a litany
of
Rules
of
Evidence
and
Civil
Procedure;
however,
she
provides no citation to controlling, or even persuasive,
authority
from
another
court.
Pinkston’s
arguments
with
respect to the Rules of Evidence and Civil Procedure are, in
short, unpersuasive.
6
Pinkston further argues the Motions should be denied for
failure to comply with Local Rule 3.01(h). Local Rule 3.01(h)
requires
all
dispositive
motions
to
be
designated
as
dispositive in the caption of the motion, as well as requiring
the movant of such a motion to file a notice with the Court
if the motion has been pending more than 180 days. But,
Pinkston’s argument as to Local Rule 3.01(h) has been rejected
under similar contexts. See, e.g., Barr v. One Touch Direct,
LLC, No. 8:15-cv-2391-T-33MAP, 2016 WL 1621696, at *2 (M.D.
Fla. Apr. 22, 2016) (citing McLaughlin v. Brennan, No. 3:13cv-987-J-34-MCR, 2016 WL 1271514, at *3-4 (M.D. Fla. Mar. 31,
2016)). Accordingly, the Court declines to deny the Motions
on the sole grounds that they violate Local Rule 3.01(h).
A.
Title IX
Counts I and II of the Second Amended Complaint bring
discrimination and retaliation claims, respectively, under
Title IX against USF. In both Counts I and II, Pinkston
alleges she was discriminated on the basis of race and sex.
(Doc. # 159 at ¶¶ 8, 19-20).
It
is
settled,
however,
that
Title
IX
prohibits
discrimination on the basis of sex, not race. See Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998)
(stating, “[t]he statute was modeled after Title VI of the
7
Civil Rights Act of 1964, which is parallel to Title IX except
that
it
prohibits
race
discrimination,
not
sex
discrimination”) (internal citations omitted); Rollins v. Bd.
of Trs. of the Univ. of Ala., No. 14-14882, 2016 WL 1399375,
at *12 (11th Cir. Apr. 11, 2016) (noting Title IX prohibits
discrimination on the basis of sex). Accordingly, Count I is
dismissed with prejudice to the extent it attempts to bring
a claim on the basis of racial discrimination.
Pinkston’s retaliation claim also fails to the extent it
is premised on the theory that USF retaliated against her for
complaining of putative racial discrimination. See T.L. ex
rel. Lowry v. Sherwood Charter Sch., 68 F. Supp. 3d 1295,
1311 (D. Ore. 2014) (stating, “the plaintiff must show that
he or she was retaliated against because he or she complained
of sex discrimination . . . . That is, the protected activity
must be that the plaintiff complained of sex discrimination
and
not
other
conduct.”)
(internal
citations
omitted).
Therefore, Count II is dismissed with prejudice to the extent
it
attempts
to
bring
a
claim
on
the
basis
of
racial
discrimination.
To state a prima facie case of disparate treatment under
Title IX a plaintiff must show that (1) plaintiff is a member
of a protected class, (2) plaintiff was subject to an adverse
8
educational action, (3) defendants treated similarly situated
students who were not members of plaintiff’s protected class
more favorably, and (4) plaintiff was qualified. See Bowers
v. Bd. of Regents of Univ. Sys. of Ga., 509 Fed. Appx. 906,
910
(11th
Cir.
2013).
To
state
a
prima
facie
case
of
retaliation under Title IX, a plaintiff must demonstrate “(1)
[plaintiff] engaged in statutorily protected expression; (2)
the [defendant] took action that would have been materially
adverse to a reasonable person; and (3) there was a causal
link between the two events.” McCullough v. Bd. of Regents of
Univ. Sys. of Ga., 623 Fed. Appx. 980, 982 (11th Cir. 2015).
“Even if a plaintiff need not plead a prima facie case
to survive dismissal, the complaint must satisfy [Ashcroft v.
Iqbal's,
556
U.S.
662
(2009),]
‘plausible
on
its
face’
standard, and the allegations must be sufficient to ‘raise a
right to relief above the speculative level’ under [Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)].” McCullough,
623 Fed. Appx. at 983. This, Pinkston has not done with
respect to the sex discrimination claim. The Second Amended
Complaint fails to identify or allege the existence of a nonclass
comparator
who
was
treated
more
favorably.
Thus,
Pinkston has failed to state claim of sex discrimination. See
Doe v. Univ. of S. Fla. Bd. of Trs., No. 8:15-cv-682-T-30EAJ,
9
2015 WL 3453753, at *4 (M.D. Fla. May 29, 2015) (dismissing
Title IX claim because plaintiff failed to identify non-class
comparator who was treated more favorably).
However, Pinkston has sufficiently stated a cause of
action for retaliation under Title IX. Pinkston alleges she
was denied her degree because she had reported instances of
sexual discrimination. (Doc. # 159 at 10-12). While the Court
is mindful of USF’s arguments to the contrary, it declines to
go beyond the four corners of the Second Amended Complaint.
USF may raise its arguments again, in addition to any that
might
become
relevant
after
discovery,
at
the
summary
judgment stage.
B.
Section 1981 and 1983 Claims
Counts III and IV of the Second Amended Complaint assert
claims of discrimination and retaliation, respectively, under
42 U.S.C. § 1981 against all Defendants. Counts V(a) and V(b)
of
the
Second
Amended
Complaint
bring
claims
of
discrimination and retaliation, respectively, against all
Defendants under 42 U.S.C. § 1983.
1.
Eleventh Amendment Immunity and USF
USF argues Pinkston’s §§ 1981 and 1983 claims are barred
by the Eleventh Amendment to the United States Constitution.
An assertion of Eleventh Amendment immunity challenges a
10
court’s subject matter jurisdiction and “must be resolved
before a court may address the merits of the underlying
claim(s).” See Seaborn v. State of Fla., Dep’t of Corrections,
143 F.3d 1405, 1407 (11th Cir. 1998).
The Eleventh Amendment states, “[t]he judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted 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.
“Although the text of the Eleventh Amendment does not appear
to bar federal suits against a state by its own citizens, the
Supreme Court long ago held that the Amendment bars these
suits.” Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll.,
Fla., 421 F.3d 1190, 1192 (11th Cir. 2005). Furthermore, it
is “well-settled that Eleventh Amendment immunity bars suits
brought in federal court when an arm of the State is sued.”
Id. (citation and internal quotation marks omitted).
A court considers the following factors when determining
whether
an
entity
is
an
arm
of
the
state
for
Eleventh
Amendment purposes: “(1) how the state defines the entity;
(2) what degree of control the state maintains over the
entity; (3) where the entity derives its funds; and (4) who
is responsible for judgment against the entity.” Id. After
11
review of the relevant factors and state law, the Court
determines USF is an arm of the state for Eleventh Amendment
purposes. See Fla. Stat. §§ 768.28(2), 1001.70-1001.73; see
also, Crisman v. Fla. Atl. Univ. Bd. of Trs., 572 Fed. Appx.
946, 946 (11th Cir. 2014) (concluding board of trustees of
Florida Atlantic University entitled to Eleventh Amendment
immunity); Saavedra v. USF Bd. of Trs., No. 8:10-cv-1935-T17TGW, 2011 WL 1742018, at *2-3 (M.D. Fla. May 6, 2011)
(finding USF Board of Trustees entitled to Eleventh Amendment
immunity).
“State agencies are immune from suit under the Eleventh
Amendment unless their immunity is either waived by the state
or abrogated by Congress.” Saavedra, 2011 WL 1742018, at *2
(citing Gamble v. Fla. Dep’t of Health & Rehab. Servs., 779
F.2d 1509, 1511 (11th Cir. 1986)). “Florida has not waived
its Eleventh Amendment immunity, nor has Congress abrogated
that immunity in § 1983 cases.” Hart v. Florida, No. 8:13cv-2533-T-30MAP, 2013 WL 5525644, at *1 (M.D. Fla. Oct. 4,
2013) (citing Zatler v. Wainwright, 802 F.2d 397, 400 (11th
Cir. 1986)); see also Schopler v. Bliss, 903 F.2d 1373, 1379
(11th Cir. 1990) (stating, “[t]his court has held that section
768.28
does
not
waive
Florida’s
Eleventh
Amendment
immunity”); Jie Liu Tang v. Univ. of S. Fla., No. 8:05-cv-
12
572-T-17MAP, 2005 WL 2334697, at *2 (M.D. Fla. Sept. 23, 2005)
(finding 42 U.S.C. § 1981 claim against USF barred under
Eleventh Amendment).
Pinkston’s arguments to the contrary are meritless.
Accordingly, Counts III, IV, V(a), and V(b) are dismissed for
lack of subject matter jurisdiction insofar as they are
brought against USF.
2.
Claims against Larsen, Merkler, and Battistini
a.
42 U.S.C. § 1981 Claims
Counts III and IV bring claims of discrimination and
retaliation, respectively, pursuant to § 1981 against Larsen,
Merkler, and Battistini, all of whom are alleged to have acted
under color of state law. (Doc. # 159 at 5-6, 8, 12-13).
Larsen, Merkler, and Battistini argue these claims should be
dismissed because Pinkston’s § 1981 claims are subsumed by
her § 1983 claims. Pinkston provides no substantive response
with respect to this argument.
“[I]n
a
case
involving
state
actors,
there
is
no
liability under § 1981, and such claims merge into the § 1983
claims.” McMillan v. Fulton Cty., Ga., 352 Fed. Appx. 329,
330 n.1 (11th Cir. 2009) (citing Butts v. Cty. of Volusia,
222 F.3d 891, 893-94 (11th Cir. 2000)). Furthermore, while it
is
unclear
whether
Pinkston
13
is
bringing
individual
or
official
capacity
claims
against
Larsen,
Merkler,
and
Battistini, the distinction is one without a difference with
respect to the § 1981 claims. See Bailey v. Town of Lady Lake,
Fla., No. 5:05-cv-464-Oc-10GRJ, 2006 WL 2048250, at *3 (M.D.
Fla. July 20, 2016) (stating, “[b]ecause § 1981 provides no
different remedies against a state actor than § 1983, and
since they merge into one another, Bailey's claims against
the
individual
Defendants-in
both
their
individual
and
official capacities-under § 1981 no longer exist and are due
to be dismissed with prejudice”). Therefore, Counts III and
IV are dismissed with prejudice to the extent they seek to
assert claims under § 1981 against Larsen, Merkler, and
Battistini. See Id.; Carr v. Ala. Dep’t of Youth Servs., No.
2:07cv532-MHT, 2009 WL 903280, at *1, 12 (M.D. Ala. Mar. 31,
2009) (adopting report and recommendation and dismissing
stand-alone § 1981 claim because it merged into § 1983 claim).
b.
42 U.S.C. § 1983 Claims
Although the lack of specificity regarding capacity is
inconsequential on the analysis as to whether Pinkston’s §
1981 claims should be dismissed, the same cannot be said for
Pinkston’s
§
1983
claims.
“The
distinction
between
an
individual capacity suit . . . and an official capacity suit
is a significant one.” Smith v. Allen, 502 F.3d 1255, 1271
14
(11th Cir. 2007), abrogated on other grounds by Sossamon v.
Texas, 563 U.S. 277, 287 (2011). A defendant sued in its
individual capacity “may . . . be able to assert . . .
qualified immunity,” whereas a defendant sued in its official
capacity may only claim “forms of sovereign immunity that the
entity,
qua
entity,
may
possess,
such
as
the
Eleventh
Amendment.” Id. at 1271-72 (citations omitted).
A complaint that does not specify whether a defendant is
sued in their individual or official capacities, or both, is
a deficient shotgun pleading. Thorn v. Randall, No. 8:14-cv862-T-36MAP, 2014 WL 5094134, at *2 (M.D. Fla. Oct. 24, 2014).
And, “[w]hen faced with a shotgun pleading, the trial court,
whether or not requested to do so by a 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). Accordingly, Counts V(a) and V(b) are dismissed
without prejudice and with leave to amend. If Pinkston elects
to file a third amended complaint, she must set forth the
capacity or the capacities in which Larsen, Merkler, and
Battistini are sued.
The Court also notes that at the hearing held on March
23,
2016,
the
Court
expressly
prohibited
Pinkston
from
pleading new or different causes of action when it granted
15
Pinkston leave to file a second amended complaint. In spite
of
the
Court’s
reference
to
two
express
instruction,
constitutional
Pinkston
rights
not
included
previously
included in her Amended Complaint. Indeed, a comparison of
the
Amended
Complaint
with
the
Second
Amended
Complaint
demonstrates that the Amended Complaint premised the § 1983
claims on the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution, Title IX, and §
1981 (Doc. # 18 at ¶¶ 88-90), whereas the Second Amended
Complaint attempts to allege violations of the Fourth and
Fifth Amendments to the United States Constitution (Doc. #
159 at 5).
A district court may limit the scope of allegations when
granting leave to amend. See Lewers v. Pinellas Cty. Jail,
No. 8:09-CV-572-T-30TBM, 2009 WL 1684441, at *2 (M.D. Fla.
June 16, 2009) (ordering plaintiff to limit allegations in
amended complaint); see also BEG Inves. LLC v. Alberti, 85 F.
Supp. 3d 13, 25 n.6 (D.D.C 2015) (noting “courts have long
held such authority[—to impose conditions, restrictions, or
limitations when granting leave to amend—]exists” (citing 6
CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND
PROCEDURE §
1486 (3d ed. 2010))). Therefore, if Pinkston elects to file
a third amended complaint, she must limit the basis of any §
16
1983 action to those raised in her Amended Complaint; namely,
the Equal Protection Clause of the Fourteenth Amendment and
§ 1981.2
Pinkston should not attempt to bring a § 1983 claim
premised on an alleged violation of Title IX against USF
because the Court has found that USF enjoys Eleventh Amendment
immunity. Pinkston should also not attempt to bring a § 1983
claim premised on an alleged violation of Title IX against
Larsen, Merkler, or Battistini because “Title IX does not
allow
funding
claims
against
recipients
individual
can
be
held
school
liable
officials;
for
Title
only
IX
violations.” Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477 F.3d 1282, 1300 (11th Cir. 2007) (concluding “that to
allow plaintiffs to use § 1983 . . . [to assert a Title IX
claim against individual school official] would permit an end
run around Title IX’s explicit language limiting liability to
2
Defendants argue Pinkston abandoned any § 1983 claim
premised on the Fourteenth Amendment by not repleading any
such claim in the Second Amended Complaint after the Court
dismissed the Amended Complaint with leave to amend. The Court
declines to find abandonment at this stage. See Coachmen
Indus., Inc. v. Royal Surplus Lines Ins. Co., No. 3:06-cv959-J-HTS, 2007 WL 1837842, at *10-11 (M.D. Fla. June 26,
2007) (discussing the issue of abandonment in the context of
a plaintiff failing to replead claim, which was dismissed
with leave to amend). Should Pinkston again fail to replead
a § 1983 claim premised on the Fourteenth Amendment, however,
Defendants may reassert their abandonment argument.
17
funding recipients”). Thus, amendment would be futile and the
Court may prohibit Pinkston from attempting to do so. See
Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th
Cir. 2004) (noting that “district court may properly deny
leave to amend the complaint . . . when such amendment would
be futile”).
IV.
Conclusion
In sum, USF’s and Larsen, Merkler, and Battistini’s
respective Motions are granted in part. Pinkston may file a
third amended complaint by June 22, 2016. In granting leave
to amend, the Court reminds Pinkston she must conform her
amendments to, and address the deficiencies discussed in,
this Order.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants Randy Larsen, David Merkler, and Matthew
Battistini’s Motion to Dismiss (Doc. # 166) is granted in
part. Counts III and IV are dismissed with prejudice. Counts
V(a) and V(b) are dismissed without prejudice and with leave
to amend.
(2)
Defendant University of South Florida Board of
Trustees’ Motion to Dismiss (Doc. # 167) is granted in part.
Counts I and II of the Second Amended Complaint are dismissed
18
with prejudice to the extent they seek to bring Title IX
claims on the basis of racial discrimination. Otherwise, to
the
extent
the
Counts
are
premised
on
alleged
sex
discrimination, Count I is dismissed without prejudice and
with leave to amend, but USF’s Motion is denied as to Count
II. Counts III, IV, V(a), and V(b) are dismissed for lack of
subject matter jurisdiction as USF is entitled to Eleventh
Amendment immunity.
(3) Plaintiff Rachel Pinkston has until June 22, 2016,
to file a third amended complaint. Pinkston must conform her
third amended complaint to, and address the deficiencies
addressed in, this Order.
DONE and ORDERED in Chambers in Tampa, Florida, this 9th
day of June, 2016.
19
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