Hussein v. Department of Employment & Economic Development et al
OPINION AND ORDER granting #5 Defendants' Motion to Dismiss. See Order for specifics. (Written Opinion). Signed by Judge Eric C. Tostrud on 10/7/2019. (RMM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Gamada A. Hussein,
File No. 19-cv-2469 (ECT/BRT)
OPINION AND ORDER
Department of Employment & Economic
Development; Steve Grove, DEED
Commission; and John Does,
Plaintiff Gamada A. Hussein commenced this action on September 9, 2019 by filing
a four-count Complaint against the Department of Employment & Economic Development
(“DEED”), Steve Grove, DEED’s Commissioner, and an unknown number of John Does.
See generally Compl. [ECF No. 1]. DEED and Grove moved to dismiss, arguing that the
Court lacks subject-matter jurisdiction over some aspects of the claims and that in all other
respects the claims should be dismissed under the doctrine of qualified immunity or for
failing to state a legally cognizable claim. Mot. [ECF No. 5]; see also generally Mem. in
Supp. [ECF No. 6]. Defendants’ motion will be granted.
The factual allegations in this Complaint bear a striking similarity to those alleged
in numerous other filings in this District. See generally Hussein v. Barr et al., 19-cv-292
(JRT/HB) at 2–3, 6–7 (D. Minn.) (collecting cases). Here, Hussein alleges that DEED
denied him unemployment benefits in order to help various law-enforcement entities—the
Central Intelligence Agency, Federal Bureau of Investigation, police, sheriffs, state
troopers, and others—commit wrongful acts against Hussein, including mind control,
torture, discrimination, and assault. See Compl. at 1. He brings four claims, which are not
numbered sequentially, as follows: Claim III alleges discrimination under 42 U.S.C.
§ 1981 and the Fourteenth Amendment; Claim IV alleges violations of both 42 U.S.C.
§ 1983 and of Title VII of the 1964 Civil Rights Act; Claim X alleges defamation; and
Claim XI alleges intentional infliction of emotional distress. All claims appear to be
brought against all Defendants.
Shortly after Hussein commenced this action, Chief Judge John R. Tunheim issued
an order in another of Hussein’s cases placing Hussein on the District’s list of restricted
filers, and “requir[ing] that Hussein obtain permission from the District of Minnesota
before filing any other actions in this District based on the same or similar allegations as
those in this action.” Order, Hussein v. Barr et al., 19-cv-292 (JRT/HB), at 7 (D. Minn.
Sept. 18, 2019). Because the allegations in Hussein v. Barr are similar to those in this
action, he is not permitted to respond to Defendants’ motion to dismiss without prior
approval from the Court. Hussein has provided the Court with his proposed response,
which is two-and-a-half pages long and does not substantively engage the issues raised in
Defendants’ motion. The Court will not authorize it to be filed and instead will take the
unusual step of deciding the motion based solely on the Defendants’ briefing and on the
Defendants move to dismiss under both Rule 12(b)(1), for lack of subject-matter
jurisdiction, and Rule 12(b)(6), for failing to state a claim upon which relief can be granted.
A court reviewing a motion to dismiss for lack of jurisdiction under Fed. R. Civ.
P. 12(b)(1) must first determine whether the movant is making a “facial” attack or a
“factual” attack. Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir.
2015). Here, Defendants make a facial attack to subject-matter jurisdiction because it
accepts as true all of Hussein’s factual allegations relevant to jurisdiction. See Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). A court analyzing a facial attack “restricts itself
to the face of the pleadings and the non-moving party receives the same protections as it
would defending against a motion brought under Rule 12(b)(6).” Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990) (citations omitted).
In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
court must accept as true all of the factual allegations in the complaint and draw all
reasonable inferences in the plaintiff’s favor. Gorog v. Best Buy Co., 760 F.3d 787, 792
(8th Cir. 2014) (citation omitted). Although the factual allegations need not be detailed,
they must be sufficient to “raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). The complaint must “state
a claim to relief that is plausible on its face.” Id. at 570.
Federal courts are without subject-matter jurisdiction to adjudicate claims against
defendants who have Eleventh Amendment immunity. Alsbrook v. City of Maumelle,
184 F.3d 999, 1005 (8th Cir. 1999). Defendants argue that Hussein’s claims against
DEED, and those against Grove in his official capacity,1 should be dismissed for lack of
subject-matter jurisdiction because they are barred by Eleventh Amendment sovereign
immunity. Mem. in Supp. at 4. The Eleventh Amendment generally bars official-capacity
suits against a state, unless that immunity has been waived by the state or abrogated by
Congress. Alsbrook, 184 F.3d at 1005. An agency of the state, such as DEED, is entitled
to the same Eleventh Amendment immunity. Grant v. City of Blytheville, 841 F.3d 767,
722 n.3 (8th Cir. 2016). But “[t]he Eleventh Amendment does not bar official-capacity
claims for injunctive relief against state officials,” it only bars official-capacity claims for
damages. Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953, 955 (8th Cir. 1999) (citing Ex
Parte Young, 209 U.S. 123 (1908)).
As an initial matter, only Hussein’s constitutional and common-law tort claims, and
not his Title VII claim, are potentially affected by Defendants’ Eleventh Amendment
arguments. Defendants do not mention Hussein’s Title VII claim, which he has combined
with his § 1983 claim, see Compl. ¶¶ 20–26, but Congress has validly abrogated states’
Eleventh Amendment immunity for claims arising under Title VII. Okruhlik v. Univ. of
“[A] suit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). “As such, it is no different from a suit against the State itself.” Id.
Ark., 255 F.3d 615, 623 (8th Cir. 2001). Defendants are correct, however, that the Eleventh
Amendment generally bars suits in federal courts against the State of Minnesota or
individuals acting in their official capacities when those claims arise under §§ 1981 or
1983, see Stahl Const. Co. v. State of Minn., Civ. No. 03–3104 JRTJSM, 2004 WL 742058,
at *3 (D. Minn. March 4, 2004), or under Minnesota common law, see Minn. Stat. § 3.736,
sub. 2 (providing that, absent other applicable statutory authority, tort claims “shall be
brought . . . in the courts of the state); Hoeffner v. Univ. of Minn., 948 F. Supp. 1380, 1392–
93 (D. Minn. July 29, 1996) (recognizing same).
Defendants also do not mention that Hussein’s official-capacity claims against
Grove are not barred by the Eleventh Amendment insofar as they seek prospective
injunctive relief. See Andrus, 197 F.3d at 955. Here, Hussein seeks, among other relief,
an injunction “[p]ermanently enjoining defendants . . . to take all affirmative steps
necessary to remedy the effects of unlawful discriminatory conducts and deprivation of
rights under color of law described” in his Complaint. Compl. at Prayer for Relief ¶ c. The
Eighth Circuit has held that a similarly broad request for “such other equitable relief as is
just and proper,” was “easily understood to include injunctive relief against [an officialcapacity state actor], or his successor, if relief needs to be in that form to be effective.”
Andrus, 197 F.3d at 956. Thus, Hussein has requested injunctive relief with sufficient
clarity that the Eleventh Amendment does not bar his request for prospective injunctive
relief against Grove, acting in his official capacity.
Accordingly, the Court possesses subject-matter jurisdiction over Hussein’s
Title VII claim against both Defendants and over his official-capacity claims against Grove
insofar as he seeks prospective injunctive relief. But Hussein’s claims against DEED under
§§ 1981 and 1983, and for defamation and intentional infliction of emotional distress are
barred by the Eleventh Amendment, as are his official-capacity claims against Grove
insofar as he seeks damages, and those claims must be dismissed for lack of subject-matter
As for the remaining claims—the Title VII claim, the official-capacity claim for
prospective injunctive relief, and the individual-capacity claims—those claims will be
dismissed for failure to state a claim.2 He has not pleaded facts suggesting any connection
between conduct by Grove, personally, the denial of Hussein’s application for
unemployment benefits, and the actions of any third-party law-enforcement actors. He has
made conclusory assertions, but alleged no facts, showing that the denial of his
unemployment benefits was related in any way to his race, religion, ethnicity, or national
origin. See Compl. ¶ 16; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring that a
plaintiff must “plead[ ] factual content that allows the court to draw the reasonable
Defendants argue Hussein’s individual-capacity claims against Grove are barred by
qualified immunity. Mem. in. Supp. at 5. In determining whether Grove has qualified
immunity, the Court asks: “(1) whether the facts shown by the plaintiff make out a violation
of a constitutional or statutory right, and (2) whether that right was clearly established at
the time of the defendant’s alleged misconduct.” Brown v. City of Golden Valley, 574 F.3d
491, 496 (8th Cir. 2009). Courts, in their sound discretion, may consider the questions in
either order, but a § 1983 plaintiff can defeat a claim of qualified immunity only if the
answer to both questions is yes. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Because,
as described above, Hussein has not plausibly pleaded any of his remaining claims—
including his constitutional claims—the Court need not consider whether any right
implicated by his Complaint was clearly established at the relevant time.
inference that the defendant is liable for the misconduct alleged” (citation omitted)). His
Title VII claim, his official-capacity claim for prospective-injunctive relief, and his
individual-capacity claims therefore must be dismissed under Rule 12(b)(6).
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS ORDERED THAT:
Defendants’ motion to dismiss [ECF No. 5] is GRANTED;
Plaintiff’s claims against the Department of Employment & Economic
Development alleging violations of 42 U.S.C. §§ 1981 and 1983, and for defamation and
intentional infliction of emotional distress, are DISMISSED WITHOUT PREJUDICE
for lack of subject-matter jurisdiction;
Plaintiff’s claims against Steve Grove in his official capacity alleging
violations of 42 U.S.C. §§ 1981 and 1983, and for defamation and intentional infliction of
emotional distress, are DISMISSED WITHOUT PREJUDICE for lack of subject-matter
jurisdiction insofar as they seek damages and DISMISSED WITH PREJUDICE insofar
as they seek prospective injunctive relief; and
Plaintiff’s Title VII claim against the Department of Employment &
Economic Development and Steve Grove in both his official and individual capacity, and
the remainder of Plaintiff’s individual-capacity claims against Grove are DISMISSED
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated: October 7, 2019
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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