Clarke v. McMurry
Filing
9
OPINION AND ORDER denying Plaintiff's Motion for Clerk's Entry of Default 6 , denying as moot Defendant's Motion to Stay Discovery 4 , granting Defendant's Motion to Dismiss 3 and dismissing this action without prejudice. Signed by Judge William S. Duffey, Jr on 12/7/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANDREW CLARKE,
Plaintiff,
v.
1:17-cv-3664-WSD
RUSSELL R. MCMURRY, P.E.,
Commissioner of the Georgia
Department of Transportation,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Russell R. McMurry’s1
(“Defendant”) Special Appearance Motion to Dismiss [3] (“Motion to Dismiss”)
and Motion to Stay Discovery [4]. Also before the Court is Plaintiff Andrew
Clarke’s (“Plaintiff”) Request for Entry of Default Judgment. ([6]).
I.
BACKGROUND2
On April 2, 1996, Plaintiff Andrew Clarke (“Plaintiff”) was struck by a
drunk driver while operating a Georgia Department of Transportation (“DOT”)
1
Defendant’s Motions are filed on Defendant’s behalf by Christopher M.
Carr, Attorney General for the State of Georgia.
2
The facts recited in this Order are drawn from Plaintiff’s Complaint and are
accepted as true for purposes of Defendant’s Motion to Dismiss. See Doe v.
Wooten, 747 F.3d 1317, 1320 (11th Cir. 2014).
vehicle in a construction zone on I-20 West in Atlanta, Georgia. (Complaint [1] at
4). Plaintiff allegedly suffered “extreme trauma” as a result of the accident,
including traumatic brain injury, neurological damage, skeletal damage, and
“[e]xtreme emotional distress.” (Id. at 4-5).
On April 20, 2017, Plaintiff, proceeding pro se, commenced this
42 U.S.C. § 1983 action against Defendant in his official capacity as
Commissioner of DOT. Plaintiff alleges a deprivation of his right to substantive
due process, procedural due process, and equal protection in violation of the
Fourteenth Amendment. (Id. at 2-3). The Complaint also appears to assert a state
law claim for fraudulent inducement. (Id. at 5). Plaintiff seeks $10 million in
damages. (Id.).
On November 7, 2017, Defendant filed his Motion to Dismiss based on
insufficient service of process, the Eleventh Amendment and sovereign immunity,
the statute of limitations, and failure to state a claim under § 1983. ([3.1] at 2). In
the alternative, Defendant moves the Court, pursuant to Rule 12(e) of the Federal
Rules of Civil Procedure, to require Plaintiff to submit a more definite statement of
his claims. ([3.1] at 2). Defendant also filed, on November 7, 2017, his Motion
for Stay of Discovery pending the final resolution of the Motion to Dismiss.
2
Plaintiff did not file a response to either of Defendant’s Motions, and they are
deemed unopposed. See LR 7.1(B), NDGa.
On November 21, 2017, Plaintiff filed a Request for Entry of Default
Judgment seeking the “Clerk to enter a default against [] [D]efendant, on the basis
that the record in this case demonstrates that there has been a failure to plead or
otherwise defend as provided by Rule 55(a) of the Federal Rules of Civil
Procedure.”3
II.
LEGAL STANDARDS
A.
Motion to Dismiss
On a motion to dismiss, the Court must “assume that the factual allegations
in the complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.”
3
The Court denies Plaintiff’s Request for Entry of Default Judgment. Rule
55(a) of the Federal Rules of Civil Procedure states:
When a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party's default.
See Fed. R. Civ. P. 55(a). Here, it is clear Defendant has “otherwise defend[ed]”
himself by filing a Motion to Dismiss and a Motion to Stay Discovery.
3
Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)).
Similarly, the Court is not required to accept conclusory allegations and legal
conclusions as true. See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290
(11th Cir. 2010) (construing Ashcroft v. Iqbal, 556 U.S. 662 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see also
White v. Bank of America, NA, 597 F. App’x 1015, 1018 (11th Cir. 2014)
(“[C]onclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.”) (quoting
Oxford Asset Mgmt., Ltd. V. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “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 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
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across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly,
550 U.S. at 570).
B.
Pro Se Pleading Standard
Plaintiff filed his Complaint pro se. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must comply with the threshold
requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth
Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “Even though a pro se
complaint should be construed liberally, a pro se complaint still must state a claim
upon which the Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26,
28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient
pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
III.
DISCUSSION
A.
Motion to Dismiss
Defendant moves to dismiss Plaintiff’s Complaint on a number of grounds.
Defendant first argues that Plaintiff failed to properly effect service of process.
Defendant next argues that Plaintiff’s federal and state claims are barred by the
5
Eleventh Amendment. Defendant further argues that Plaintiff’s claims are barred
by the statute of limitations. 4 Defendant finally argues that, even if Plaintiff’s
claims are not barred by Plaintiff’s failure to properly serve, the Eleventh
Amendment and sovereign immunity, or the statute of limitations, Plaintiff’s
Complaint nonetheless fails to state a claim. The Court finds that, based on all of
those grounds articulated by Defendant in his Motion to Dismiss, Plaintiff’s
Complaint should be dismissed.
1.
Insufficient Service
Defendant first argues that the Complaint fails for lack of personal
jurisdiction based on insufficient service of process. Rule 4(c) of the Federal Rules
of Civil Procedure provides that service of process shall be effected by serving a
summons “together with a copy of the complaint . . . within the time allowed under
[Rule 4(m)] . . . by any person who is not a party and who is at least 18 years of
age.” See Fed. R. Civ. P. 4(c). “Service of process is a jurisdictional requirement:
a court lacks jurisdiction over the person of a defendant when that defendant has
not been served.” Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir.
4
The Court agrees with Defendant that, to the extent Plaintiff’s claim is based
on his initial injury, his claim is barred by the applicable two-year statute of
limitations. See O.C.G.A. § 9-3-33, see also Giles v. Garwood, 853 F.2d 876, 877
(11th Cir. 1988).
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1990). A natural person must effect the service. Ojelade v. Coleman, 258 F.
App’x 257, 258, 2007 WL 4275503, at *2 (11th Cir. 2007) (“USPS [is] not a
natural person and cannot effect service.”). Finally, “[a] defendant’s actual notice
is not sufficient to cure defectively executed service.” Albra v. Advan, Inc., 490
F.3d 862 (11th Cir. 2007).
Here, Plaintiff allegedly attempted to serve Defendant by sending a copy of
the summons by U.S. priority mail to the DOT Commissioner’s office. ([2] at 2).
Plaintiff signed the requisite Proof of Service as the “Server” and listed his
personal address. ([2] at 1). Defendant argues this service was improper because
Rule 4(c)(2) provides that service may be affected by “[a]ny person who is at least
18 years old and not a party.” Fed. R. Civ. P. 4(c)(2). The Court agrees. Plaintiff
failed to comply with the requirements of the Federal Rules of Civil Procedure by
attempting to mail the summons to the DOT Commissioner’s office by U.S. mail
and by personally acting as the “server.” While Plaintiff is a pro se litigant, and is
therefore entitled to greater leniency in this instance, the Eleventh Circuit holds
that a plaintiff’s pro se status generally does not excuse insufficient service of
process. Albra, 490 F.3d at 829 (“And although we are to give liberal construction
to the pleadings of pro se litigants, ‘we nevertheless have required them to
conform to procedural rules.’”) (quoting Loren v. Sasser, 309 F.3d 1296, 1304
7
(11th Cir.2002)). The Court finds Plaintiff failed to effect sufficient service of
process, and grants Defendant’s Motion to Dismiss for this reason.
2.
Eleventh Amendment and Sovereign Immunity
Defendant also argues that Plaintiff’s federal constitutional claim for money
damages against Defendant in his official capacity is barred by the Eleventh
Amendment. ([3.1] at 5). Defendant first contends that the Eleventh Amendment
bars suits against a state or one of its agencies, departments, or officials absent a
waiver by the state or a valid congressional override, including any suit in which
the state is a real party in interest or when any monetary recovery would be paid
from state funds. (Id.); see also Jackson v. Dept. of Transp., 16 F.3d 1537, 1577
(11th Cir. 1994) (“The general test for determining whether the state is the real
party in interest, even though it is not a named defendant, is whether the relief
sought against the nominal defendant would in fact operate against the state.”);
Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986). Defendant argues that
“any monetary relief sought from [Defendant] as a state officer in his official
capacity would in fact operate against the state.” ([3.1] at 6).
The Court agrees. A § 1983 action for money damages against Defendant in
his official capacity would effectively “operate against the state” because any
monetary recovery would be paid by state funds. Moreover, the Eleventh Circuit
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has held that, “[a]bsent a legitimate abrogation of immunity by Congress or a
waiver of immunity by the state being sued, the Eleventh Amendment is an
absolute bar to suit by an individual against a state or its agencies in federal court.”
Gamble v. Florida Dep’t of Health & Rehabilitative Services, 779 F.2d 1509, 1511
(11th Cir. 1986). The Eleventh Circuit has stated that “[i]t is clear that Congress
did not intend to abrogate a state’s [E]leventh [A] mendment immunity in section
1983 damage suits.” Zatler, 802 F.2d at 400; see also Quern v. Jordan, 440 U.S.
332, 342.
Georgia has expressly reserved its sovereign immunity in article 1, section 2,
paragraph IX of the Georgia Constitution, which provides that “[n]o waiver of
sovereign immunity shall be construed as a waiver of any immunity provided to
the state or its departments and agencies by the United States Constitution.” Thus,
Georgia has preserved its sovereign immunity from tort liability unless explicitly
waived by the General Assembly. Vaughn v. Georgia, No. 1:11-CV-4026-RWS,
2012 WL 2458538, at *3 (N.D. Ga. June 27, 2012); see also Romano v. Ga. Dept.
of Corr. et al., 303 Ga. App. 347, 693 S.E.2d 521, 524 (Ga. Ct. App. 2010)
(quoting Southerland et al. v. Ga. Dept. of Corr., 293 Ga. App. 56, 666 S.E.2d 383,
384 (Ga. Ct. App. 2008)) (“Pursuant to our state constitution, sovereign immunity
insulates the state and its departments and agencies from liability except to the
9
extent that the legislature enacts a specific waiver.”). The Court has not found, nor
have the parties brought to the Court’s attention, any legislation passed by the
General Assembly or state constitutional provisions that waive Georgia’s sovereign
immunity with respect to Plaintiff’s federal constitutional claim for money
damages.5
Plaintiff also appears to allege a state law claim of fraudulent inducement
based on Defendant’s broken promise to pay approximately $51,000 of Plaintiff’s
student loans upon completion of his degree. ([1] at 5). Defendant argues this
state claim is similarly barred by the Eleventh Amendment and sovereign
immunity. ([3.1] at 13-15). Defendant concedes that while Plaintiff’s claims are
based on the alleged tortious acts by a state officer or employee falling within the
purview of the Georgia Tort Claims Act (“GTCA”), O.C.G.A. § 50-21-20 et seq,
which grants a limited waiver of the state’s sovereign immunity, the state of
5
Defendant also contends that Plaintiff fails to state a cognizable claim
because Defendant is not a “person” subject to suit under§ 1983 because “person”
is given its ordinary meaning and Defendant, as a state actor, does not fit within
that definition. ([3.1] at 6). In Will v. Michigan Dep’t of State Police, the U.S.
Supreme Court held that “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” 491 U.S. 58, 71 (1989). Plaintiff’s
Complaint makes clear that he is suing Defendant in his official capacity. ([1] at
2). The Court holds that Defendant is not a “person” as defined by § 1983, and
thus Plaintiff has, for this additional reason, failed to state a cognizable claim
against Defendant.
10
Georgia has not waived its immunity with respect to suits brought in federal courts.
([3.1] at 14).
The GTCA provides that “[t]he state waives its sovereign immunity . . . only
with respect to actions brought in the courts of the State of Georgia. The state does
not waive any immunity with respect to actions brought in the courts of the United
States.” O.C.G.A. § 50-21-23(b); see also Jude v. Morrison, 534 F. Supp. 2d 1365,
1373 (N.D. Ga. 2008) (“[A]n action against the State of Georgia cannot stand in
this forum because the State of Georgia has not waived its sovereign immunity
through the Georgia Tort Claims Act for actions brought in federal court.”);
Alyshah v. Georgia, No. 1:06-cv-0930-TWT, 2006 WL 2583288, at *2 (N.D. Ga.
Sept. 5, 2006) (“The GTCA specifically preserves the State’s sovereign immunity
from suit for tort claims filed in federal courts.”). Consequently, this Court lacks
subject matter jurisdiction over Plaintiff’s state claim alleging fraudulent
inducement.
3.
Failure to State a Claim
Defendant finally argues that, even if the abovementioned grounds did not
bar Plaintiff’s Complaint, Plaintiff fails to state a cause of action under § 1983. To
state a cause of action under § 1983, a plaintiff must demonstrate (1) that the
conduct complained of was committed by a person acting under color of state law;
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and (2) that the conduct deprived plaintiff of rights, privileges, or immunities
secured by the Constitution or laws of the United States. Harvey v. Harvey, 949
F.2d 1127, 1130 (11th Cir. 1992).
Defendant argues that Plaintiff’s Complaint falls short because:
(1) “although Plaintiff alleges that his injuries occurred within the scope of his
employment with DOT, he does not allege that [Defendant] was, at the time in
question, employed as Commissioner of DOT,” and (2) “though Plaintiff alleges
that [Defendant] ‘acted under the Workers Compensation of the State of Georgia,’
he does not describe any conduct by [Defendant] which he contends violated his
constitutional rights.” ([3.1] at 9-10). Defendant states that “liability under § 1983
cannot be based purely upon one’s supervisory role without allegations of direct
actions that resulted in the complained of deprivation.” (Id.). Defendant further
contends that, even assuming Plaintiff sufficiently pled conduct by Defendant
under color of state law, Plaintiff has failed to show the deprivation of a
constitutionally protected interest. (Id. at 11).
The Eleventh Circuit has held that complaints in § 1983 cases must
“‘contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.’” Randall v. Scott,
610 F.3d 701, 708, n.2 (11th Cir. 2010) (quoting Bryson v. Gonzales, 534 F.3d
12
1282, 1286 (10th Cir. 2008). It is evident that Plaintiff’s Complaint fails to meet
this pleading standard, even under the less stringent standard applied to pro se
litigants. Plaintiff’s Complaint includes barebones factual recitations and legal
conclusions. Plaintiff fails to allege when Defendant worked at DOT, how
Defendant caused Plaintiff’s injuries, or what role Defendant played in violating
Plaintiff’s constitutional rights. Plaintiff does not elaborate or describe
Defendant’s conduct with any particularity. Plaintiff’s “conclusory allegations,
unwarranted deductions of facts[,] [and] legal conclusions masquerading as facts”
simply cannot prevent dismissal here. The Court finds that, even if Plaintiff’s
Complaint were not barred by the abovementioned jurisdictional grounds, Plaintiff
has failed to state a claim under § 1983.6
6
In addition to Plaintiff’s § 1983 claim and fraudulent inducement claim,
Plaintiff also appears to assert a claim for “medical insurance fraud” against the
Department of Administrative Services (“DOAS”) as “Defendant’s third party.”
([1] at 5). Plaintiff also alleges that “Defendant’s physicians, understated,
misdiagnosed, and outright lied, about the existence and extent of the Plaintiff’s
injuries.” (Id.). Finally, Plaintiff claims that an unnamed administrative law judge
(“ALJ”) “was arbitrary and capricious” in allegedly ordering that Plaintiff’s
student loan payments not be paid to by Defendant. (Id.). As Defendant rightly
points out in his Motion to Dismiss, these allegations are not made against
Defendant, nor are DOAS, the unidentified physicians, or the ALJ named as parties
to this action. ([3.1] at 9, n.4). Thus, to the extent Defendant is in fact asserting
these claims, the Court dismisses them.
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B.
Motion to Stay Discovery
Because the Court grants Defendant’s Motion to dismiss, Defendant’s
Motion to Stay Discovery is denied as moot.
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Clerk’s Entry of
Default [6] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Stay Discovery
[4] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss [3] is
GRANTED, and this action is DISMISSED WITHOUT PREJUDICE.
SO ORDERED this 7th day of December, 2017.
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