BATTLE v. HANCOCK STATE PRISON

Filing 36

ORDER GRANTING 32 Motion to Dismiss Complaint; GRANTING in part and DENYING in part 21 Motion to Dismiss Complaint. The only remaining claim is against Defendant GDC for retaliation. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 1/8/2021. (kat)

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DETRICH BATTLE,
Plaintiff,
v.
HANCOCK STATE PRISON,
Defendant.
__________________

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:20-cv-63 (MTT)

ORDER
The Defendants move to dismiss pro se Plaintiff Detrich Battle’s complaint.
Docs. 21; 32. For the following reasons, Defendant Pearson’s motion (Doc. 32) is
GRANTED, and the other Defendants’ motion to dismiss (Doc. 21) is GRANTED in part
and DENIED in part. It is GRANTED as to the ADA claims against the individual
Defendants in their official capacities and the claims under Title I of the ADA, but
DENIED as to the retaliation claim against GDC.
I. STANDARD
The Federal Rules of Civil Procedure require that a pleading contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). To avoid dismissal pursuant to Rule12(b)(6), a complaint must contain
sufficient factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible “when the court [can] draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Fed. R. Civ.

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 2 of 14

P. 12(b)(6)). “Factual allegations that are merely consistent with a defendant’s liability
fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337
(11th Cir. 2012) (internal quotation marks and citations omitted).
At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” FindWhat Inv’r Grp. v. FindWhat.com., 658 F.3d 1282, 1296 (11th Cir. 2011)
(internal quotation marks and citations omitted). But “conclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will not
prevent dismissal.” Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485 (11th Cir. 2015)
(internal quotation marks and citation omitted). The complaint must “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 555 (internal quotation marks and citation omitted). Where there are dispositive
issues of law, a court may dismiss a claim regardless of the alleged facts. Patel v.
Specialized Loan Servicing, LLC, 904 F.3d 1314, 1321 (11th Cir. 2018) (citations
omitted). However, when a plaintiff is proceeding pro se, his pleadings may be held to a
less stringent standard than pleadings drafted by attorneys and will be liberally
construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
II. DISCUSSION
A. Facts
Battle’s amended complaint is muddled, but the Court tries to piece it together
and construes it liberally. It also construes the original complaint (Doc. 1) and
miscellaneous attachments (Doc. 1-1) together with the amended complaint.

-2-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 3 of 14

It appears that Battle used to be employed by the Georgia Department of
Corrections. Battle alleges that on December 1, 2014, he was summoned to a meeting
with Deputy Warden of Security Ivory, Captain Ingram, and Lieutenant Clark. Doc. 5 at
9. He claims it was a “harassment meeting on the issue of them taking my money,
because of an incident that occurred on November 7, 2014.” Id. He alleges he
experienced chest pain during the meeting and asked them to call an ambulance or his
wife, but they refused. Id. He requested medical leave for December 15, 2014 through
December 17, 2014, but “Lt. Clark, Captain Ingram and Deputy Warden of Security
Officer Ivory denied this[.]” Id. at 10. During the week of December 15, he “called
EEOC to complain about harassment and abusive treatment on the job because of my
disability (medical).” Id.
On April 15, 2015, Battle alleges, he fell and injured himself at work. He alleges
he was supposed to be paid worker’s compensation, but the Defendants mishandled
paperwork related to worker’s compensation and threatened to terminate him. Id. at 1011. On April 20, 2015, he returned to work with permanent restrictions set by his doctor.
Id. He also returned to work on July 13, 2015 (the complaint is unclear about what
happened between April 20 and July 13), and he attended a morning briefing, but he did
not receive an assignment. Instead, he was sent home. Id. He called “personnel” but
was told he had too many restrictions to work. Id. He claims that Clark, Ingram, Ivory,
and Warden Sellers “continuously harassed and treated me indifferently [sic] from the
other officers working in the booth . . . They failed to adequately place me and made my
medical condition worse by unfair practices and treatment, when they removed my

-3-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 4 of 14

inmates and made me perform manual labor, and this was after my injury sustained on
the job.” Id.
In September 2015, he was diagnosed with postural orthostatic tachycardia
syndrome (POTS). He also claims that at some point (it is unclear when), he was
diagnosed with a partial torn rotator cuff, sciatica, bulging discs, and degenerative disc
disease. Doc. 1 at 4. He was terminated on April 20, 2018. In his EEOC charge, he
claimed his employer told him he was discharged for not providing updated medical
documentation, but that (i) his doctor actually had sent the documents and (ii) the
deadline for sending the documents was April 24, 2018—four days after he was
discharged.
Battle’s pleadings do not discuss what happened between September 2015 and
April 2018. Based on a letter Battle submitted along with his complaint, it appears he
had been placed on leave without pay from July 29, 2015 to April 2018. Doc. 5-1 at 43.
Battle filed suit, alleging the Defendants violated Title I of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., and retaliated against him in violation of the
ADA. 1 Doc. 5 at 7-8.

1 Although the Court’s screening order made passing mention of Title II of the ADA, it is clear Battle did
not bring any Title II claims. First, his original complaint specifically cited Title I and did not cite Title II.
Doc. 1 at 3. Second, though his recast complaint only cites the ADA in general terms, the EEOC charge
attached to that complaint was limited to Title I of the ADA. Docs. 5 at 7; 5-1 at 7. Also, the Court does
not interpret the recast complaint to allege a hostile work environment claim. Although the complaint
contains the words “hostile work environment,” the phrase appears without elaboration in a long list of
legal phrases, and he manifests no intent to seek recovery for that. Doc. 5 at 4, 6. Further, his ADA
allegations mention intentional discrimination and retaliation, but not hostile work environment. Id. at 7.
Similarly, his EEOC charge focuses on his termination, not a hostile work environment. Finally, the
complaint does not allege sufficient facts to state a claim for hostile work environment, especially in light
of the fact that the only specific incidents complained of occurred in 2014 and 2015, which fall outside the
statute of limitations by approximately three years.

-4-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 5 of 14

Notably, the Defendants do not move to dismiss Battle’s claims for failure to
plausibly allege the elements of an ADA claim.
B. Proper Defendants
The Court screened the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and
allowed the claims against Hancock State Prison and against Defendants Clark, Ivy,
Sellers, Ingram, Koon, Barnes, Davis, Watkins, Foye, Pearson, and Dixon, all in their
official capacities, to proceed for further development. See generally Doc. 6.
In its screening Order, the Court also noted that the correct Defendant employer
may be the Georgia Department of Corrections (“GDC”) rather than Hancock State
Prison. Id. at 2. The Court noted that the claims against the individuals in their official
capacities might be redundant if their employer were named as the Defendant. Id. In
their motion to dismiss, the Defendants argue that GDC, not Hancock State Prison, is
the proper entity. Doc. 21-1 at 5 n.1. Battle also wrote a letter indicating he wished to
amend his complaint to include GDC. Doc. 23.
As the Defendants argue, “Hancock State Prison is an institution administered by
the Georgia Department of Corrections (“GDC”), and as such, it has no independent
legal existence apart from the GDC.” Doc. 21-1 n.1 (citing O.C.G.A. § 42-2-5(a)).
Pursuant to Fed. R. Civ. P. 17(b), the “capacity to sue or be sued” is determined “by the
law of the state where the court is located.” Thus, Georgia law controls this issue. The
Georgia Supreme Court has explained that there are only three classes of legal entities:
“‘(1) natural persons; (2) an artificial person (a corporation); and (3) such quasi-artificial
person as the law recognizes as being capable to sue.’” Georgia Insurers Insolvency
Pool v. Elbert Cty., 258 Ga. 317, 318 (Ga. 1988) (quoting Cravey v. Southeastern

-5-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 6 of 14

Underwriters Ass’n., 214 Ga. 450, 453 (1958)). Hancock State Prison falls into none of
the categories.
The Court agrees that GDC, rather than Hancock State Prison, is the proper
defendant. It is ORDERED that GDC shall be substituted for Hancock State Prison.
Because all individual Defendants in their official capacities are employees of GDC, the
Court finds the ADA official-capacity claims are redundant. Accordingly, those claims
are DISMISSED. 2
The Defendants also argue that the individual-capacity ADA claims should be
dismissed. Doc. 21-1 at 4. As the Defendants recognize, the individual-capacity claims
were already addressed by the screening order. Doc. 6 at 3 (“Battle’s claims against
the individual defendants in their individual capacities are DISMISSED without prejudice
as frivolous.”). As a result, the only remaining Defendant for the ADA claims is the
GDC.
Defendant Pearson, who was served after the other Defendants, separately
moved to dismiss, making many of the same arguments. Docs. 32; 32-1. For the
reasons noted above, any individual ADA claims are subject to dismissal. Further, as
discussed in the screening order and in more detail below, the complaint does not raise
viable claims under any other law. Accordingly, Pearson’s motion to dismiss (Doc. 32)
is GRANTED.

2

The Defendants make this argument, though the authorities they cite apply to claims against local and
municipal officials, not against state officials. Doc. 21-1 at 4-5. State official claims are not always
redundant, because injunctive relief may be available against state officers in their official capacities even
when it is unavailable against the state entity itself. See Ex Parte Young, 209 U.S. 123 (1908); see Bd. of
Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001). However, Battle does not seek
injunctive relief here. Doc. 5 at 8.

-6-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 7 of 14

C. The state law claims
In its screening Order, the Court found that “Battle’s ADA claims for
discriminatory discharge, failure to accommodate, and retaliation against Hancock State
Prison and the individual Defendants in their official capacities may proceed for further
factual development.” Doc. 6 at 3. Battle did not plausibly allege any state-law claims.
However, the complaint conclusorily listed, as alleged bases of federal-question
jurisdiction, “Intentional infliction of emotional distress[,] Harassment[,] Wrongful
termination[,] Personal injury[,] Work place disputes[,] Hostile work environment[,]
Whistle blower[,] Defamation[.]” Doc. 5 at 4. 3 The Defendants addressed those claims
in their motion, so in an abundance of caution, the Court addresses those claims, too.
1. Tort claims
First, the Defendants argue that pursuant to the Georgia Tort Claims Act, tort
claims against the state cannot be brought in federal court. Doc. 21-1 at 6. Battle did
not respond. Further, the Court already screened the complaint and found it did not
raise any state-law claims. Battle did not move to amend, file a motion for
reconsideration, or otherwise indicate disagreement with the Court’s construction of his
complaint. Also, Battle’s response to the motion to dismiss only references his ADA
claims, confirming the Court’s construction of his complaint in its screening order.
Accordingly, the Court finds Battle has not raised any state tort claims.
However, the Court agrees that any state tort claims against GDC would be
barred by sovereign immunity. The narrow immunity waiver of the GTCA does not
include claims brought in federal court. O.C.G.A. § 50-21-23(b). Similarly, Battle failed

3

That was on a handwritten document copying a standard form complaint. Doc. 5 at 4. He also filed with
the Court a form pleading listing only the ADA as the basis for his lawsuit. Id. at 7-13.

-7-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 8 of 14

to comply with the ante litem notice provisions of the GTCA, O.C.G.A. § 50-21-26, so
the state has not waived sovereign immunity for any tort claims. Because the GDC is
an arm of the state under Georgia law and Battle has not complied with the GTCA, the
claims against GDC are barred. See McBride v. Bd. of Corr., 221 Ga. App. 796, 472
S.E.2d 693 (1996) (holding GDC is an “arm of the state” for purposes of sovereign
immunity).
Sovereign immunity does not apply to the individual-capacity state-law claims.
The relevant defense to that would be official immunity. Because the Defendants do not
argue it, the Court does not address it. However, it is clear that the complaint does not
plausibly allege a tort claim against any individual Defendants.
2. Georgia Whistleblower Act claims
The Georgia Whistleblower Act provides a cause of action in state court for
employees whose public employers have retaliated against them for reporting
misconduct. O.C.G.A. § 45-1-4. The elements of a claim under the Georgia
Whistleblower Act are: “(1) the employer falls under the statute's definition of ‘public
employer’; (2) the employee disclosed ‘a violation of or noncompliance with a law, rule,
or regulation to either a supervisor or government agency’; (3) the employee was then
discharged, suspended, demoted, or suffered some other adverse employment decision
by the public employer; and (4) there is some causal connection between (2) and (3).”
Hogan v. Hosp. Auth. of Valdosta & Lowndes Cty., 2016 WL 3248374, at *5 (M.D. Ga.
June 13, 2016) (citing Forrester v. Georgia Dept. of Human Servs., 308 Ga. App. 716,
722 (2011)).

-8-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 9 of 14

The GWA claims against GDC are barred by sovereign immunity. Brandenburg
v. Bd. of Regents of Univ. Sys. of Georgia, 518 F. App'x 628, 631 (11th Cir. 2013) (“The
district court also did not err in dismissing the Georgia Whistleblower Act claim against
MCG based on Eleventh Amendment immunity.”); Stevens v. Gay, 864 F.2d 113, 115
(11th Cir. 1989) (holding that GDC is entitled to Eleventh Amendment immunity).
Further, Battle does not allege he reported misconduct or otherwise engaged in activity
protected by the Georgia Whistleblower Act, so he clearly fails to state a claim.
Likewise, as the Defendants correctly argue, there is no individual liability under the
GWA. Doc. 21-1 at 12-13; Jones v. Bd. of Regents of Univ. Sys. of Georgia, 262 Ga.
App. 75, 75, 585 S.E.2d 138, 140 (2003).
D. The ADA claims
On the ADA claims, the Defendants first argue that the claims are time-barred,
and second, that the GDC is protected by sovereign immunity. The Court addresses
each argument below. 4
1. Timeliness
“Timely filing a charge of discrimination is a prerequisite to bringing suit under
both Title VII and the ADA. An ADA plaintiff has the burden of proving all conditions
precedent to filing suit, including the condition that he timely filed with the EEOC.”
Maynard v. Pneumatic Prod. Corp., 256 F.3d 1259, 1262 (11th Cir. 2001) (citations

4

Notably, the Defendants do not argue that Battle failed to exhaust his administrative remedies
altogether—only that his charge was untimely. If they had argued failure to exhaust, it is possible that the
retaliation claim and, therefore, this entire action, would be subject to dismissal. See Docs. 5-1 at 7
(October 19, 2018 charge, arguably not alleging retaliation). The issue is not jurisdictional, and the Court
does not reach it here. See Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843 (2019); Davis v. Fort Bend
Cty., 893 F.3d 300, 307 (5th Cir. 2018) (“Failure to exhaust is an affirmative defense that should be
pleaded”), aff'd sub nom. Davis, 139 S. Ct. 1843.

-9-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 10 of 14

omitted). In Georgia, the EEOC charge must be filed within 180 days of the last
discriminatory act. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001).
The Defendants contend the ADA claims are time-barred because Battle did not
file his charge with the Equal Employment Opportunity Commission until more than 180
days after the alleged discrimination occurred. Doc. 21-1 at 3. The record is clear—
and the Defendants acknowledge—that Battle filed a formal, verified charge on October
19, 2018. Doc. 5-1 at 7; see Doc. 28 at 4. That is 182 days after his April 20, 2018
termination.
However, Battle argues that he also filed a charge before October 19. Docs. 24;
24-1. On October 16, 2018—179 days after Battle’s termination—the EEOC wrote him
a letter referencing prior communications, from him, alleging discrimination. Doc. 24-1.
That letter notified Battle that “the document you submitted to us constitutes a charge of
employment discrimination.” Id. That provides at least some evidence that Battle filed a
charge within the 180-day window. 5
In reply, the Defendant argues that Battle has failed to show his earlier filing
satisfies the necessary requirements to be a charge for statute of limitation purposes.
Doc. 28 at 3-5. Specifically, the Defendant argues that “there is no evidence that
Plaintiff’s [pre-October 16] submission was, in fact, verified.” Id. at 5. The Court agrees
that Battle has failed to provide evidence that his earlier charge was verified.
However, EEOC regulations allow a later, verified charge to relate back to an
earlier, unverified charge and cure the earlier charge’s lack of verification. Specifically,
the regulations provide that

5

The fact the EEOC told him it was a validly filed charge may support an argument for tolling, too.

-10-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 11 of 14

a charge is sufficient when the Commission receives from the person
making the charge a written statement sufficiently precise to identify the
parties, and to describe generally the action or practices complained of. A
charge may be amended to cure technical defects or omissions, including
failure to verify the charge, or to clarify and amplify allegations made therein.
Such amendments and amendments alleging additional acts which
constitute unlawful employment practices related to or growing out of the
subject matter of the original charge will relate back to the date the charge
was first received.
29 C.F.R. § 1601.12(b) (emphasis added). The Supreme Court described this
regulation as “an unassailable interpretation of § 706 [of the Civil Rights Act of 1964].”
Edelman v. Lynchburg Coll., 535 U.S. 106, 118 (2002).
As to Battle’s intake questionnaire, the author of the EEOC letter believed he had
submitted sufficient information to constitute a charge. And it appears that Battle had
provided sufficient information for the EEOC to fill out a form on his behalf listing both
“the parties” and a general description of “the action or practices complained of.” Id.;
see Doc. 5-1 at 23, 7.
The Defendants’ only response to this argument is that “Plaintiff’s untimely
verified EEOC charge may not relate back to the date the EEOC received his intake
questionnaire.” Doc. 28 at 5 (citing Pijnenburg v. West Georgia Health System, Inc.,
255 F.3d 1304, 1308 (11th Cir. 2001)). The Defendants offer no analysis of Pijnenburg
or how it supports the Defendants’ tentative assertion that the October 19 charge “may
not relate back[.]” Id. (emphasis added). Does it relate back, or not? And how does
Pijnenburg support the Defendants’ argument? The Defendants’ brief is silent.
The task the Defendants have set the Court—making an argument for them
based on their cursory citations—is a difficult one. Perhaps the intended relevance of
Pijnenburg is that the plaintiff’s intake questionnaire in that case did not satisfy the

-11-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 12 of 14

requirements of the statute of limitations. Pijnenburg, 255 F.3d at 1306. But the Court
noted that “[w]e need not decide here whether a questionnaire that otherwise contains
the necessary information and the requirements for a valid charge could never be
considered a charge for timeliness purposes. We simply hold that under the facts of
this case, the questionnaire filed here did not meet the requirements for a validly filed
charge.” Pijnenburg, 255 F.3d at 1307 (emphasis added). As to the issue of whether
Battle’s questionnaire “contains the necessary information and the requirements for a
valid charge,” the Defendants’ brief is again silent.
The issue is complicated by different legal standards for evaluating whether a
document constitutes a charge. In Wilkerson v. Grinnell Corp. (2001), the Eleventh
Circuit adopted a manifest-intent test to determine whether a questionnaire was a
charge. 270 F.3d at 1314-1321. After Wilkerson, the Supreme Court adopted a
different test for deciding whether a document was a “charge” for purposes of the Age
Discrimination in Employment Act. Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 393
(2008). Whether the Holowecki test (i) applies to the ADA and supersedes the
Wilkerson test or (ii) is limited to the ADEA, appears to be an open question. See
E.E.O.C. v. Summer Classics, Inc., 471 F. App'x 868, 871 (11th Cir. 2012) (“Even
assuming Holowecki is applicable to a charge under the ADA, the EEOC fails to
demonstrate that Mr. Lowe's intake questionnaire is a sufficient filing.”); Fatz v. WinnDixie Stores, Inc., 2013 WL 4080330, at *8 (M.D. Fla. Aug. 13, 2013) (denying motion to
dismiss because the plaintiff’s intake questionnaire constituted a charge under both the
Holowecki standard and the Wilkerson standard.). As to which standard governs

-12-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 13 of 14

(Wilkerson, Holowecki, both, or something else) and how that standard applies to the
facts of this case, the Defendants’ brief is silent.
One potentially strong argument that could be made on the Defendants’ behalf is
that Battle has not filed a copy of the purported charge on the record. Is that failure to
file dispositive? Or can Battle satisfy his burden by providing other evidence that a
charge was filed? On those issues, too, the Defendants are silent.
Accordingly, the Defendants have not shown their motion to dismiss should be
granted on timeliness grounds.
2. State sovereign immunity
The Defendants also argue that “The United States Supreme Court has held that
Congress did not have the authority to abrogate the sovereign immunity of the states on
claims arising under the provision of the ADA.” Doc. 21-1 at 6 (citing Bd. of Trustees of
Univ. of Alabama v. Garrett, 531 U.S. 356 (2001)). Battle did not respond to this
argument.
Based on Garrett, the Court agrees that the employment discrimination provision
of Title I of the Americans with Disabilities Act does not abrogate state sovereign
immunity for damages. As noted, the GDC is an arm of the state for purposes of
Eleventh Amendment immunity. Accordingly, the employment discrimination claims
under Title I of the ADA for money damages are barred by sovereign immunity.
The claim for retaliation might be, too. That is what the Court discovered through
perfunctory legal research on the issue, in the absence of authority from the
Defendants. The Court could not find any controlling law, though the Ninth Circuit
addressed the issue in Demshki v. Monteith, 255 F.3d 986, 987 (9th Cir. 2001). The

-13-

Case 5:20-cv-00063-MTT Document 36 Filed 01/08/21 Page 14 of 14

Defendants are free to make arguments for why the retaliation claim is barred. But they
have not yet done so. 6
III. CONCLUSION
For the reasons noted, the Defendants’ motion to dismiss (Doc. 21) is GRANTED
in part as to the ADA claims against the individual Defendants in their official capacities
and the ADA Title I claims, but DENIED in part as to the retaliation claim. Also, for the
reasons noted, Defendant Pearson’s motion to dismiss (Doc. 32) is GRANTED. The
only remaining claim is against Defendant GDC for retaliation.
The Court’s denial in part of GDC’s motion to dismiss does not necessarily reflect
the merits of the retaliation claim or of potential defenses to that claim. Rather, the
Court concludes only that the claim is not subject to dismissal based on the arguments
raised.
SO ORDERED, this 8th day of January, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

6

To the extent sovereign immunity concerns the Court’s jurisdiction, it is an issue the Court would, under
most circumstances, reach sua sponte. But in the absence of controlling precedent, the Court will not
rule on that issue unless the Defendants brief the issue and Battle has a chance to respond.

-14-